New Ivory Ban to Prove Problematic for Executors, Dealers & Collectors

This 1898 Martin O-42 has an ivory bridge and an ivory-bound top & back. With age documentation, it is saleable in-state.

In February of last year, armed wardens of the California Department of Fish and Game descended on an auction preview hosted by Slawinski Auction Company. The wardens seized 40 lots of ivory with a market value of about $150,000.

Slawinski employees claimed that there were about 20 wardens, armed and in uniform. Owner Bob Slawinski said that his younger employees were “intimidated and shaken” by the display of force. Fish & Game spokesman Patrick Foy laughed at the notion that there were so many wardens, saying “I doubt we’re able to get 25 uniformed and armed officers together in this state at one time. That’s a little over the top.”

Over the top or not, for the past year California has cracked down on the sale of ivory, as well as other animal parts and trophies. California Fish & Game wardens have raided auctions, flea markets and antique dealers. They have executed complicated “stings” to arrest Craigslist and eBay sellers.

This lot of pre-ban ivory is no longer saleable without proof that it is more than 100 years old.

Although it has been illegal to sell ivory in California since 1970, ivory sales are now an enforcement priority. U.S. Senator Diane Feinstein (D-Ca.) intends to make the penalties for dealing in ivory even tougher than they currently are by making it prosecutable under statutes used for other felonies such as drug trafficking, racketeering and money laundering.

Despite California’s tough stance for the past year, dealers who regularly sell ivory have found ways to work-around the situation. But, a “California work-around” is no longer possible.

On Feb. 11, 2014 the Federal government instituted a “near complete ban” on the commercial sale of African elephant ivory in the United States. The U.S. ban currently does not include ivory from Asian elephants or from whale bone and teeth. California makes no such distinction. Other states are considering tighter restraints on ivory sales, notably New York.

According to the White House, the U.S. is one of the world’s largest markets for illegal ivory. Demand has pushed the price of elephant ivory to over $1,500 per pound and Rhinoceros ivory to more than $45,000 per pound—higher than the price of gold.

One of the three stated purposes of the new regulations is to “reduce the demand for illegally traded wildlife.” The strategy is to make it difficult to trade in the parts of protected species, including ivory. The rules will indeed make it difficult to trade in ivory and anything made using ivory. Ownership of such items isn’t affected by the new rules, and owners may pass their ivory collectibles to heirs.

How the Ban Effects Dealers and Estates
The ivory crackdown puts small dealers and estate executors in an awkward position. Sometimes items made from ivory can be clearly identified: scrimshaw, statues, jewelry, piano keys and other items that are commonly known as being made from ivory. But what about items with decorative ivory trim? How are non-experts supposed to separate ivory trim from faux ivory (plastic) on pool cues, canes, clocks, toys, musical instruments and hundreds of other items? Chemical testing is available through a forensics lab, but such tests are expensive. High-value collectible ivory may be worth the cost of testing. The cost of testing small amounts of ivory may exceed the value of the item.

This vintage piccolo cannot be sold across state lines due to its ivory head.

For more information on identifying ivory, see the guide provided by the US Fish & Wildlife Forensics Laboratory.

Ivory has long been used in the manufacture of stringed instruments. Guitars, mandolins, violins, banjos, ukuleles and dozens of other instruments have used ivory for decorative and functional purposes. Guitars, for example, may have ivory binding around the edge of the body to disguise and bind the edge joints. Ivory bridge saddles and nuts are commonly used to seat guitar strings. Musicians (and scientists) claim that ivory, being organic, has a cellular structure that allows for better transmission of a string’s vibrations and produces a better sound. Ivory has been used as purfling (trim) to prevent the edges of violins from splitting. Ivory tuning pegs are commonplace on acoustic instruments. Pianists old to enough to have experience playing on ivory piano keys agree that ivory piano keys are “less slippery” than plastic keys.

What the New Regulations Mean
Let’s take a look at the new federal regulations, and explore a few of the questions that they raise (the ivory referred to in the discussion below is elephant ivory unless noted):

1. No ivory can be imported, regardless of its country of origin. The former rule allowing the import of antique ivory no longer applies. It doesn’t matter how old an item is; if it contains ivory it cannot be imported. Of course, pianos having ivory keys have not been allowed for some time. But what are musicians travelling with vintage instruments to do? Will Customs agents confiscate Eric Clapton’s guitars or violins belonging to the Vienna Philharmonic? Perhaps not—if the instruments owner get an exemption, called a “CITES certificate.”

2. No ivory can be exported, except for “bona fide antiques,” non-commercial items and certain items allowed under the Endangered Species Act. A “bona fide antique”—according to Customs rules—is one that is more than 100 years old. Dealers won’t be able to sell ivory-trimmed instruments to overseas customers, and touring musicians will have to settle for playing on their newer instruments and leave their vintage instruments behind. 

New regulations make violin bows such as this one (with an ivory frog) illegal to import, even though it is more than 100 years old.

3. Sales across state lines are banned, except in the case of antiques where “documented evidence of age” is provided. Obtaining such documentation will be practically impossible since such documentation was not issued 100 years ago (the items were legal then). Musicians will be able to travel with their instruments, but dealers won’t be able to sell ivory out-of-state unless they can prove that their items are at least 100 years old.

4. Sales within a state are prohibited, unless a seller can demonstrate that the ivory was lawfully imported prior to 1990 (or prior to 1975 if it’s Asian ivory). Some modern guitars use parts made using “fossil ivory” (i.e., ivory taken from the tusks of wooly mammoths found in North America). Fossil ivory is not illegal because it’s not elephant ivory and it meets the age requirement. But if such parts are used on an instrument you own—or intend to buy—I suggest that you keep the documentation with the instrument. Your local Fish & Game Warden might not be able to tell the difference between African elephant ivory and wooly mammoth ivory.

The “sales within a state” rule adversely affects private owners and estate executors as well as dealers. Musical instruments and goods (containing ivory) that were legally obtained and are legally owned cannot be sold without proof that the items were obtained before 1990 (the date of the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES). Owners might still have a bill of sale, but how are executors going to locate such documentation?

Perhaps the most severe (yet unintended) consequence of the new regulations is the effect they have on the value of collections. If the value of a collection is calculated on the basis of market value—the price at which a willing seller sells to a willing buyer—then what happens to value when sellers cannot sell (or the pool of buyers is greatly reduced)? Certainly, values will be reduced in legal markets.

The new regulations will be enforced at the state level. Since state law enforcement agencies are already over-burdened, it’s not clear how effective enforcement will be. If California’s style of enforcement gives any clues, dealers and auctioneers will be the first to be targeted. Online sales venues like eBay and Craigslist will also be monitored. Certainly, the interstate ban will be difficult to enforce. Nevertheless, executors, dealers and collectors should proceed with caution.

Wayne Jordan is a Virginia-licensed auctioneer, Certified Personal Property Appraiser and Accredited Business Broker. He has held the professional designations of Certified Estate Specialist; Accredited Auctioneer of Real Estate; Certified Auction Specialist, Residential Real Estate and Accredited Business Broker. He also has held state licenses in Real Estate and Insurance. Wayne is a regular columnist for Antique Trader Magazine, a WorthPoint Worthologist (appraiser) and the author of two books. For more info, visit Wayne Jordan Auctions or Resale Retailing with Wayne Jordan.

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