Lawsuits Ignite Furor Over Created Opal
by Colored Stone (Aug 2001)
NEW YORK - It's not often that gem terminology is discussed in Southern New York District Court, but if Gerry Manning of Manning International in New York City has his way, the question of what constitutes a synthetic opal may one day become a matter of law.

Manning has sued several opal dealers, manufacturers, and retailers for false advertising, claiming that the polymer-impregnated manufactured opal they are selling as synthetic should actually be called a simulant. The lawsuits, which each seek several million dollars in damages, are based on the Lanham Act, which gives a company the right to sue for damages if a competitor's false advertising has hurt its business.

According to Manning and his attorney, Eric Vaughn Flam, the defendants have taken a considerable number of sales from Manning International - the exclusive worldwide distributor of Gilson created opals - by representing the less expensive polymer-impregnated manufactured opals as "lab-created." They say that the material does not meet the Federal Trade Commission's (FTC) criteria for identifying stones as synthetic.

Industries state that for a stone to be called "laboratory-created" or "synthetic," it must have "essentially the same optical, physical, and chemical properties as the stone named." The polymer-impregnated material does not meet those standards, contends Manning. "Does ['essentially the same'] mean being held together with plastic?" he says. "It doesn't mean that, and there is nothing that will convince me that something that is held together with plastic is a synthetic. It's a simulant."

According to Manning, the problem is that the material's similarity to synthetic opal is purely superficial. Although the base material is an opal-like silica lattice, it is the plastic with which the silica lattice is impregnated that holds the material together and enhances its color - which makes the material an imitation, not a synthetic, he argues. "What [the polymer-impregnated material] starts out as is a loosely-assembled array of silica spheres that in and of themselves have almost no color, and that can't stand on its own," says Manning. "If you took it and tried to cut and polish it, it would fall apart on the wheel."

Not so, says Robert Addington of ICE Industries in Downey, California, one of the manufactured opal dealers that Manning has targeted. The polymer-impregnated material starts life precisely the same way as other lab-created opal products, including the Gilson opal that Manning distributes, he argues. "All [synthetic opals] use a precipitation technique," says Addington. "Amorphous silica is precipitated over a period of time, and creates silica 'cakes,' and that silica lattice is what opal is. . . . In the case of the [polymer-] impregnated [opal], the difference is that instead of the silica cake being dried out all the way, which takes a lot longer and is a trickier process, the cakes are impregnated [with polymers]." The result, says Addington, is a material that is 20 to 25 percent polymers and 75 to 80 percent synthetic opal.

"If you look up 'essentially' in any dictionary recognized by law, it means basically, fundamentally, etc.," says Scott Cottrill of Created Opal Co. in New Mexico, a company that has been sued by Manning. "The properties [of the polymer-impregnated material] are essentially the same [as natural opal]. Silicon oxide, SiO2, is the main constituent of both."

Cottrill agrees that the material shouldn't be called a synthetic, but believes that the term "lab-grown" belongs in another category altogether. "I don't really like to use the term 'synthetic.' In my honest opinion, to my knowledge, there are no true synthetic opals, not even Gilson, because there are no materials that have water in them [as natural opals do]." He contends that the opal he sells is, literally, grown in a laboratory, and thus 'lab-grown' is an accurate descriptive term.

Besides, he says, their material is far from being an assembled stone; it is basically like an opal without any water. "The reason why [the Kyocera manufactured opal] we carry is impregnated with resin is to give it strength and durability - just like with Mother Nature. Even natural opals, if they ever lose their water, will begin to crack or craze. Some opal dealers impregnate it with resin to give it that durability again."
Addington acknowledges that the material probably should not simply be called "lab-created" - a designation he admits he once used. But the material is a genuine synthetic, he says, and can legitimately be called a "polymer-impregnated synthetic opal."
Both ICE Industries and Created Opal Co. sell the same type of manufactured opal, a product produced and distributed by Kyocera Corp. of Japan. The material is sold by agents, each of whom appears to use his or her own terminology, but the company itself uses the term "polymer-impregnated synthetic opal." It bases its stance on a March 2000 letter to Kyocera from Mary Johnson, the Gemological Institute of America's (GIA) manager of research and development. In the letter, Johnson describes the material as an "impregnated synthetic opal," and states, "As described in the Summer 1995 issue of Gems & Gemology, the Kyocera material is composed of orderly arrays of silica spheres, so it is synthetic opal." This description has also been used in several Gems & Gemology articles, including a Gem News column in Summer 1999 and an article titled "Synthetics in the 1990s," published in the Winter 2000 issue.

Manning, however, is not persuaded by the GIA description. "It really has no bearing," says Flam, Manning's attorney. "The GIA description is unfortunately not a good one. . . . We take the position that once [the material] is plastic impregnated, it's no longer a [synthetic] gemstone and you have to inform consumers it's an imitation. GIA just hasn't been really clear, and I'm not sure it's their province to dictate how things are described [anyway]."
Manning says that the only relevant definition is the FTC's, and he bases his case on what the Guides say. However, the FTC itself is not involved in any of the lawsuits, nor is it expected to be. According to FTC attorney Robin Rosen Spector, who worked on the recently-published revisions to the Guides, the FTC normally does not monitor advertising unless it receives a complaint or is asked for its opinion - neither of which appears to have occurred in the case of polymer-impregnated manufactured opals.

Even if the case were brought to the FTC, there is no guarantee how the agency would rule. "If there were someone manufacturing opal and calling it synthetic or lab-created, and there was an issue in the industry whether it was appropriate, we'd have to investigate it and come up with an answer. But there aren't any cases that we've done previously that would define this," says Spector, noting that the FTC normally relies on industry experts in such cases.
In this case, the FTC isn't likely to find much agreement. Even among gemologists, there's still debate over where to draw the line between synthetics and simulants, and some argue that neither the Gilson opal nor the polymer-impregnated opal should be called a synthetic. (See sidebar "Synthetic or Simulant?")

Whichever view ultimately wins in the terminology war, for now it seems likely Manning will get his way. Thus far, most of the defendants in the lawsuits have settled, and Manning's attorney anticipates that the others will as well.

"People are going to settle relatively quickly because they know they're wrong," says Flam. "If they don't settle, it's going to expose them to some serious monetary damages. I don't think any [of our cases] will go to a jury because it's pretty clear that this is consumer fraud, and that this is seriously damaging to Gilson created opal, which is the industry leader in this field."

One company that has refused to settle is Created Opal Co. "It's a matter of principle," says company manager Heather Cottrill. "As far as we are concerned, we have not violated the FTC [guidelines], we have not infringed on his trademark, and we will not give up the right to call [the material] what it is. It would have been easier and cheaper to settle out of court, but it was just giving up too many rights."

Addington says that his decision to comply with the cease-and-desist letter he was sent had nothing to do with knowing he was wrong. "I believe that Mr. Manning is doing nothing but interfering with fair trade, and that these are nothing but nuisance suits," says Addington. "However, since we don't have the time or energy or money for this kind of foolishness, as of now, we are going to sell material we had formerly invoiced and advertised as 'lab-created synthetic stabilized' as 'simulated stabilized.' However, as always, we will enclose the Gems & Gemology report [on polymer-impregnated material] so the customer can make up his own mind."

Other dealers involved in the lawsuits were prevented by their settlement agreements from commenting on the record, but indicated that their decision to settle was based on the cost of fighting the lawsuit, rather than any admission of wrongdoing.

Meanwhile, Manning says he has no intention of giving up his one-man crusade to label polymer-impregnated material "imitation," or of changing his tactics. "The only way these people listen is if a big enough hammer is brought down on their heads," he says. "I want something on the federal record. I want it understood by these people that they have to know more about the law, they have to know more about consumer protection, they have to know more about their products, and they have to watch what they say."
Because none of the manufactured opal currently on the market contains water - as virtually all natural opal does - there are some who argue that none of the material can legitimately be called "lab-created."

Synthetic or Simulant?
By Suzanne Wade

The Federal Trade Commission (FTC) defines a synthetic gemstone as having "essentially the same optical, physical, and chemical properties as the stone named." The question is, what does "essentially the same" mean? How different can a manufactured stone be from the natural gem and still be called "synthetic?"

Because none of the manufactured opal currently on the market contains water - as virtually all natural opal does - there are some who argue that none of the material can legitimately be called "lab-created."

"If a piece of man-made opal doesn't contain water, then it is not physically the same as the natural, and it then doesn't comply with the FTC regulations of being able to call it lab-grown," argues Robert Silverman of Lannyte Inc., a synthetic gemstone dealer in Houston, Texas. He does sell manufactured opal, labeling it as a simulant. "[Calling Gilson opal lab-grown] is wrong, it's incorrect, but it's been promoted as lab-grown material by people who should know better, who feel it's close enough to be correct. But if it doesn't contain water, I don't see how it can possibly qualify as a lab-grown material."

That view has its supporters in the gemological community. A 1987 Gems & Gemology article by two German gemologists, Karl Schmetzer and Ulrich Henn, concluded that "Because of the complete absence of water, these man-made materials are not within the compositional range of natural opals. . . . Consequently, the authors propose that these products of Kyocera Corp. should be designated opal simulants rather than synthetic opals." Since Gilson opal doesn't contain water either, they argued that it should also be called a simulant.
Others take a less hard-line stance. Both the Gemological Institute of America (GIA) and the Swiss Gemmological Institute (SSEF) in Basel, Switzerland, have identified Gilson and similar opals as synthetics in lab reports for years. "If a material fulfills the criteria for synthetic opal - that is, it has essentially the same physical, optical, and chemical properties and, when checked, shows the same type of structure as natural opal - it would be identified as 'synthetic opal,' " says a GIA representative. "If it has been treated in some way, such as dyed or impregnated, or if the material is assembled, treatment is disclosed in the conclusion."

"Natural opals have 5 to 15 percent of water, while synthetics do not. Synthetic opals sometimes have a zirconium content, while naturals have barely any. Synthetic opals are sometimes bound with epoxy, while naturals are usually not, but they could be treated with epoxy, too," observes Dr. H.A. Hänni of the SSEF. "The situation is complex. [So] a practical and simple approach is to call them synthetic, because the majority of features are in agreement with natural."

But extending the description "lab-created" to polymer-impregnated material may meet greater resistance in the industry. "It's an imitation," says Leonid Bride at Morion Co., who sells the polymer-impregnated manufactured opal. "It imitates the best opal, but it's not real opal, because it has 25 to 30 percent resin." He adds, "We also sell two different [synthetic] opals produced in Russia, and those opals are really lab-created because . . . [they are] really close in all properties to Australian opal."

"When you look at [the impregnated] material you say, 'This isn't opal,' " comments Tom Chatham of Chatham Created Gems, who sells the Gilson synthetic opal. "It doesn't even look like opal. It's not like oiling of emerald or that type of subtle improvement. It's a major change."
Chatham adds that he supports Manning's efforts to change industry practice. "I applaud him for the effort. He's spent a lot of money trying to get Gilson opal accepted and used in the marketplace, and along comes this stuff that in our collective opinion is fake opal . . . and the mass merchandisers of this world have jumped at this opportunity to pull a fast one."