NAD Process Too Brittle for Wedding Band Wars?

What's the right metal for your wedding ring? In recent years some jewelers have been encouraging couples saying their "I-dos" to forgo traditional options like gold or platinum in favor of tungsten carbide. Also used in industrial machining and armor-piercing ammunition, this metal is especially popular with grooms–according to a consumer survey by The Knot, almost one in five men's wedding rings sold in 2009 was made with tungsten carbide. Jeweler Scott Kay, however, recently challenged tungsten carbide's suitability for use in wedding bands. After refusing to participate in an NAD proceeding brought by Frederick Goldman, Inc., Kay's claims about tungsten carbide rings may now be under review by the FTC. It all began last October when Scott Kay held a press conference for the jewelry industry trade press to contest some of the claims being made about tungsten carbide wedding bands. In order to show that these rings are not "hard" and "indestructible", which he said some unnamed internet retailers have claimed, Kay literally bashed tungsten carbide, shattering a number of tungsten carbide rings by throwing them onto a piece of marble tile and hitting them with a pair of pliers. He later posted a video of his demonstration which declares, "It is the opinion of Scott Kay that carbide is not a practical metal for the use of bridal jewelry." Kay's website also depicts magnified images showing that tungsten carbide is porous, which he maintains puts it "at risk of cracking, chipping, or shattering." Reasoning that a material subject to breaking is not appropriate to symbolize matrimonial commitment, Kay also advertised that "Brittle is NOT for Bridal Jewelry." The ads urge knot-tiers to choose Kay's own new line of cobalt alloy rings instead. (Apparently neither Kay nor its competitors think that couples should consider contemporary divorce rates when choosing a wedding band.) Frederick Goldman, the leading manufacturer of tungsten carbide bands, was none too pleased with Kay's public metallurgy seminar, and challenged Kay's claims about the alleged weakness of tungsten carbide and the superiority of cobalt before the NAD. Characterizing Kay's demonstrations as contrived parlor tricks, Frederick Goldman argued that both Kay' express claims about tungsten carbide's brittleness and his implied claim that tungsten carbide bands are not durable enough to withstand a lifetime of normal consumer use were false. Frederick Goldman also challenged Kay's claims that cobalt rings are produced through a green process and that they can be easily and safely removed in an emergency. Kay decided against participation in the NAD process, which, of course, is entirely voluntary. Kay maintained that the NAD was not the appropriate forum for this dispute because Kay's claims "merely respond to" advertising by Frederick Goldman and other tungsten carbide manufacturers, and NAD procedures do not allow for counterclaims. Accordingly, Kay expressed its willingness to defend its advertising in a judicial forum, "where Goldman's own advertising may be examined in the same light and simultaneously as Scott Kay's." Under the NAD's procedures, however, "[i]f the advertiser fails to file a substantive written response . . . [NAD] may refer the file to the appropriate government agency . . . ." Faced with Kay's non-participation, the NAD did just that, sending the matter over to the FTC for further review. Most companies, even if they are confident their comparative claims are substantiated, do not want their file to land on the FTC's desk. For this reason, among others, voluntary compliance with a NAD investigation is high — over 90% of companies agree to participate in the process and most of those voluntarily comply with the NAD's recommendations. The FTC is a public supporter of the NAD and self-regulation generally, and takes NAD referrals seriously. The FTC, however, also recognizes the value of truthful, nondisparaging comparative advertising. Other companies prefer to participate in the NAD process to avoid the more costly airing of the grievance in federal court in a Lanham Act false advertising case (including full blown discovery and in many cases the need to retain survey experts), something Kay apparently welcomes so the fact finder can consider simultaneously both sides of the story. It raises an interesting question of whether the NAD process would be improved or unduly hampered by allowing simultaneous counter challenges. – Amy Mudge and William Perdue

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