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Is Blue Topaz Illegal?
by Cheryl Kremkow, Editor-In-Chief
The Kay Jewelers store on West 34th Street in New York carries blue sapphire, tanzanite, and aquamarine. What you won’t find in this store, however, is a single blue topaz. And you won’t find any blue topaz in any of the other 1,332 Sterling Jewelers stores across the country either.
That’s because the nation’s largest specialty jewelry retailer recalled blue topaz from all of its stores in June 2007.
The action was in response to a May 24 certified letter that the Nuclear Regulatory Commission sent to major jewelry retailers across the country, including Wal-Mart and J.C. Penney, alerting them to the fact that the NRC requires irradiation facilities and importers of neutron-irradiated topaz to be licensed. The letter, signed by Robert O’Connell, also asked retailers to send the NRC a list of their topaz suppliers and to inform the NRC whether the blue topaz they carried was treated by electrons or neutrons. They were given 30 days to respond.
According to NRC regulations, neutron-irradiated blue topaz can only be imported and sold into this market by someone who is licensed to do so by the NRC. The holder of this “Exempt Distribution License” can sell the material freely to retailers or consumers. No additional license or control is required for possession or sale after the initial import or release in the U.S. The catch is that there currently aren’t any exempt distribution license holders. Therefore most blue topaz on the market has not been imported in compliance with government regulations.
“When we learned that our suppliers were not in compliance, we investigated the regulations,” says Sterling Jewelers marketing director David Bouffard. “In June, when we realized that our suppliers were going to require more time to come into compliance, we removed all irradiated gemstones from our stores.”
The reaction of retailers, manufacturers, and industry associations to the NRC letter has varied. Most are still trying to determine what the NRC’s new aggressive stance means for sales of blue topaz jewelry in the U.S. J.C. Penney has also stopped selling blue topaz in response to the letter.
At the Zales Jewelers store next to Kay’s on West 34th Street, blue topaz jewelry is still available. “We are aware of this issue but to my knowledge we did not get a letter,” says David Sternblitz, Zale Corporation vice president. “It’s premature to lay out our response. We’ve joined the Jewelers Vigilance Committee task force on the issue. We do have a vendor code of conduct that requires our vendors to comply with the law but my understanding is that there are no health issues so I think we should wait to meet with the NRC to understand the issue better.”
The NRC has announced a public meeting on the issue on July 26 at the Commission’s Maryland headquarters. Details are available on the NRC’s website’s Public Meeting Schedule. Modern Jeweler will report on the meeting in our September 2007 issue.
FIXING THE FRAMEWORK
The NRC says that its actions were motivated by concerns that the rules in place for ensuring safe distribution of blue topaz are not working.
“Our concern is that the regulatory framework has not been maintained and we want to restore it,” says David McIntyre of the NRC public affairs office. “Does that mean we are going to prosecute mom and pop jewelry stores? No. We want to work with the industry. If we get the regulatory structure fixed, retailers won’t have to worry.”
Should retailers stop selling blue topaz? “Not yet, certainly,” McIntyre says. “The letter sought information, it didn’t require action. At this point the NRC isn’t requesting action.” He says the NRC has three goals. First, the agency wants to determine how to fix the situation for the future. For example, can someone be licensed so that the gems can be imported properly? Second, the NRC wants to find a solution for all the gems in distribution now. “Is there a way that we can be reassured that they are safe? We’re hoping to get ideas from the industry and find a way that they can still be distributed,” McIntyre says.
The third goal of the NRC is to let the industry know that its jurisdiction over irradiated gems, including topaz, is expanding, thanks to the Energy Policy Act of 2005.
NEUTRON VERSUS ELECTRON
NRC regulations, which went into effect in 1988, currently cover only gems treated by neutron irradiation in a reactor. In blue topaz, this means “ London” blue topaz and “Swiss” and all other fancy blue shades, both the dark blue and intense blue topaz colors. Some blue topaz, which generally has a paler “sky blue” color, is irradiated instead by electrons in an accelerator.
And accelerator-irradiation is currently regulated only by the states. There is no current licensing requirement for importers of electron-irradiated topaz. But there soon will be. In response to the Energy Policy Act of 2005, the NRC is expanding its jurisdiction to include regulation of all accelerator-irradiated materials, too.
New regulations requiring a license for the release or import of electron-irradiated blue topaz take effect around January 2008. Dates will vary state by state. There is expected to be a grace period for selling electron-irradiated topaz imported or released before the regulation goes into effect.
There are no statistics on the amount of neutron-irradiated topaz as compared to electron on the market today. Most dealers estimate that neutron irradiated is two-thirds to three-quarters of the market. At least one retailer who received the NRC letter sent back all its London blue topaz jewelry to have the stones swapped out for sky blue.
But most retailers interviewed for this article don’t know whether they are selling electron or neutron irradiated blue topaz.
When the regulation of blue topaz began in the ’90s, much of the blue topaz sold was either irradiated in the U.S. at facilities like the University of Missouri, the leading neutron irradiation facility in the country, or IRT, a California linear accelerator. What wasn’t irradiated in the U.S. was imported by large loose gemstone wholesalers who specialized in blue topaz and were familiar with the treatment process and regulations.
Today much of the blue topaz jewelry sold in this country enters already set into jewelry. The wholesalers, manufacturers, and retailers who import this jewelry are not aware of the issues with irradiation and may not have any knowledge of how or where the inexpensive gems were treated.
INDUSTRY RESPONSE
Retailers who received the letter contacted their suppliers to find out more about blue topaz irradiation. And they also contacted industry associations to find out more about the regulations regarding blue topaz.
“The JVC has informed people who have asked that we are not able to assure people that blue topaz has entered the country in compliance with the law,” says Cecilia Gardner, Jewelers Vigilance Committee president, CEO, and general counsel.
The JVC sent out a “compliance alert” to its members and press on July 10. In it the JVC said: “Retailers now offering irradiated gemstones for sale should consider what appropriate action to take, including but not limited to, removing these products for sale from their counters. There is no health and safety issue known to the JVC. This alert pertains primarily to blue topaz, and could apply to other irradiated gemstones that you offer for sale.”
JVC, Jewelers of America, and the American Gem Trade Association plan to attend the July 26 meeting with the NRC.
After consulting with legal counsel, JA sent a detailed summary of the NRC regulations to its members. “JA has long advocated that retailers begin to research and understand their supply chains, so that they might become more familiar with their suppliers' business practices. It was also the reason that JA became a founding member of CRJP, so that retailers could work together with their suppliers on issues within the larger industry supply chain,” says Peggy Jo Donohue, JA director of public affairs. “The irradiated gemstone issue, and the questions surrounding the NRC's recent enforcement actions on its licensing requirements, are a perfect example of why retailers must begin to more thoroughly understand how their products arrive in their stores. Consumers are already asking these questions and JA members will continue to work on efforts to supply responsible answers.”
IRRADIATION: NOT JUST TOPAZ
The NRC letter only mentions blue topaz. But since the new regulations will apply to all materials irradiated in an accelerator, not just topaz, they may also require importers to be licensed to import any other gems irradiated in an accelerator. That includes irradiated diamonds. It may also include some green quartz/prasiolite, lemon citrine/oro verde, smoky quartz, golden beryl, kunzite, morganite, and tourmaline.
Because most irradiation is done in gemstone producing countries, it is difficult to say what procedures are used. Although quartz and tourmaline are traditionally enhanced by more affordable irradiation with cobalt 60, the availability of accelerators around the world for commercial irradiation means that some other gemstones may be irradiated in an accelerator. Any that is would technically become a NRC-controlled substance.
Meanwhile, aside from characteristic colors associated with different processes, it is not possible to easily separate neutron and electron irradiated topaz or electron and gamma irradiated quartz.
LICENSE REQUIREMENTS
The complexity of the regulations and the difficulty of obtaining licenses mean it is unlikely that anyone will become licensed by January 2008.
When the NRC regulations first took effect in the ’90s, there were several exempt distribution licensees, including the University of Missouri. Today, the University of Missouri treats blue topaz for a single client, who exports all the topaz it treats, so it let its license to release to unlicensed customers expire. Also licensed in 1990 were General Atomics in San Diego and Alnor Instruments in Skokie, Illinois. Neither still holds a license.
The Gemological Institute of America obtained both possession and exempt distribution licenses in 1992. The institute spent an estimated $200,000 to set up an advanced testing facility with sophisticated detectors, a staff nuclear engineer to oversee the operation, storage and disposal facilities, and automation that kept fees affordable. In 1994, for lots with a total carat weight of 4,500 carats or more of one-carat or larger stones, the fee was $0.50 per carat.
But there was no demand from the industry for testing. There were no customers for topaz testing after the first few months. “The regulations to provide the service were quite extensive,” says Tom Moses. “And the service was not successful. But during test runs and the few lots we did receive, we did not find residual radioactivity in the topaz we did test. In the 15 years GIA had a license, we maybe tested 5 to 10 stones that had residual radioactivity and only one of those was topaz. We used the detector for research but virtually no one used the service.” GIA gave up its license a few years ago and two years ago donated its germanium detector to a local university. At that point, there no longer were any exempt distribution licensees.
The JVC says that the industry needs someone to become licensed. “We’re encouraging as many entities who can become licensed to do so as soon as possible,” Gardner says.
How will all this controversy affect the market for what is probably the biggest selling colored gemstone in carats? Since this issue is not likely to be resolved before this holiday season, this December’s birthstone is not likely to be blue topaz for some retailers. But that’s not a problem for Sterling Jewelers. “We follow the AGTA recommendation of tanzanite,” Bouffard says.
Note: Previous versions of this story, including the printed August 2007 issue of Modern Jeweler, included an incorrect statement that Sterling Jewelers received a letter from the Nuclear Regulatory Commission. Sterling did not receive a letter. Modern Jeweler regrets the error.
