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Important update for antique dealers: selling and buying items containing ivory

Posted by Chris on 27/06/2024

DEFRA (the Department of Trade and Rural Affairs) are soon to be updating UK rules regarding items containing, or made of, ivory (but not the walrus).

Read on to explore the current rules, exemptions for dealing in ivory, what to do with ivory that's not exempt, how to check if your item qualifies for exemption, and how to register any antiques that contain ivory.

 

 

 

 

 

 

The proposals by DEFRA are still subject to parliamentary approval, but if successful they include updating the banned items, including scrimshaw amongst others.

In this article:

• Dealing in ivory: the current rules 
• Why was the ivory ban introduced?
• The meaning of dealing in ivory
• Exemptions for dealing in ivory
• History of ivory - and its use in antiques
• What you can do with ivory that is not exempt
• How to check if your item qualifies for exemption
• How to register an item containing ivory under a standard exemption
• Rules around importing and exporting ivory
• What is an offence under the ivory ban
• What is not an offence under the ivory ban
• If you started a transaction before 6 June 2022

 

Dealing in ivory: current rules

Here are the current rules in place for all antique collectors and dealers within the UK. References to ivory in this guidance mean ivory from an elephant.

• You cannot deal in items containing or made of elephant ivory, unless they are registered as exempt or certified as exempt, under the Ivory Act 2018.
• The Act does not apply to ivory items that you own if you have no intention to deal in them.
• The Act applies throughout the whole of the United Kingdom, including in Northern Ireland.
• If you break the law under the Ivory Act 2018 you face a maximum fine of £250,000 or 5 years’ imprisonment.
• You cannot deal in items containing or made of elephant ivory, unless they are registered as exempt or certified as exempt, under the Ivory Act 2018.
• The Act does not apply to ivory items that you own if you have no intention to deal in them.
• The Act applies throughout the whole of the United Kingdom, including in Northern Ireland.
• If you break the law under the Ivory Act 2018 you face a maximum fine of £250,000 or 5 years’ imprisonment.

 

Elephant ivory was banned worldwide in 1989 - this photo shows a large pile of it waiting to be destroyed. (Image: U.S. Embassy Nairobi, CC0)

 

Why was the ivory ban introduced?

In the 1500s, it is believed that over 25 million elephants were roaming across Africa. But hunting and a growing demand for ivory dramatically decimated their numbers throughout the nineteenth and twentieth centuries.

Ivory became a desirable commodity throughout Europe and North America as it was used in various products, including combs, jewellery, decorative ornaments, piano keys and snooker balls. By 1913, the United States was consuming an estimated 200 tons of ivory each year.

While the demand in Europe waned, Asian demand for ivory began to increase through the twentieth century. By the 1980s just 600,000 African elephants were estimated to remain in the wild.

The ‘ivory frenzy’ eventually led to the international commercial trade in elephant ivory being banned in 1989. However, many countries continued to sell ivory within their own borders.

Following the ban, elephant populations began to stabilise, until CITES approved two legal sales of stockpiled ivory to Japan in 1999 and China in 2008. Since then, elephant populations have once again been in steep decline.

Despite the international ban still being in place, between 2006 and 2015, a fifth of the total population of elephants was killed, with just 415,000 African elephants estimated to survive.

The trade was mainly driven by illegally imported ivory, which was being passed off as ivory traded domestically. In response, China took the monumental step of imposing a near-complete ban on the ivory trade in 2016. Apart from a few exceptions, such as some antiques, elephant ivory can no longer be bought or sold in the country.

Pressure for the UK to follow suit escalated, and in 2018 the British parliament passed the Ivory Act, granting the near-total ban on elephant ivory sales.

Read more about the history of ivory and its trading bans on the Natural History Museum website.

 

The meaning of dealing in ivory

You are dealing in ivory if you:

• buy, sell or hire it
• offer or arrange to buy, sell or hire it
• keep it for sale or hire
• export it from the UK for sale or hire
• import it into the UK for sale or hire

You’re also dealing in ivory if you cause or make it possible for someone else to deal in ivory, even if you’re not directly involved in buying, selling, hiring, importing or exporting an ivory item yourself.

Throughout the service and guidance, the use of ‘sell or hire out’ refers to all the ways you might be ‘dealing in ivory’.

Under the ban:

• ‘buying’ includes acquiring ivory for valuable consideration, such as a trade or swap with something that has value, or for a discount in a store
• ‘selling’ includes disposing of ivory for valuable consideration, such as a trade or swap with something that has value, or for a discount in a store
• ‘offering’ includes advertising and inviting an offer, or displaying in a shop or gallery for sale

 

Elephant ivory was banned in the UK in 2018: only some exceptions to the UK ivory trade remain, including items made before 3 March 1947 with less than 10% ivory by volume and items intended to be bought or hired by qualifying museums. (Image: WWF, CC0)

 

Exemptions for dealing in ivory

You can only deal in ivory items that are exempt from the ban.

There are standard exemptions:

• musical instruments made before 1975 with less than 20% ivory by volume
• items made before 3 March 1947 with less than 10% ivory by volume
• portrait miniatures made before 1918 with a total surface area of no more than 320 square centimetres
• items a qualifying museum intends to buy or hire

There is also an exemption for items made before 1918 that are of outstandingly high artistic, cultural or historical value.

If you have an ivory item that you think falls into one of these exemption categories, you can use the declare ivory you intend to sell or hire out service to:

• check if your item qualifies for an exemption if you’re not sure
• register a single item under a standard exemption
• apply for an exemption certificate for an item made before 1918 that is of outstandingly high artistic, cultural or historical value
• notify us that you intend to sell or hire out an item that has an exemption certificate that was awarded to someone else

You can only deal in these items if your registration or application is successful.

 

Ivory features in a wide range of antiques, such as an inlay in an 18th-century gaming table, a wafer-thin base material for a 19th-century portrait miniature, or this 19th century Chinese ivory panel box (pictured).

 

History of ivory - and its use in antiques

Elephant ivory in large and small quantities has been incorporated into cultural artefacts for thousands of years. As long ago as 1600 BC workshops in Mycenae were producing ivory boxes and furniture inlaid with ivory for export to the Greek mainland. In Egypt during the reign of Tutankhamun it was used as inlay in luxury goods, such as chests or head supports.

Ivory has been carved, valued and appreciated in Africa, Europe, India, the Far East and America.  Its use charts and reflects the changing culture of the world over many centuries and over widely differing cultural backgrounds.

To the lay person, ‘antique ivory’ might make one think of carved tusks or figures made entirely of ivory, but these types of objects are in a minority.

Ivory features in a wide range of antique objects, objects which were created at a time when elephants roamed Africa in their millions and their future was not under threat as it is today. Ivory can appear as inlay in an 18th-century gaming table or be the wafer-thin base material for a 19th-century portrait miniature. 

It's incorporated into culturally-important objects, such as carved Christian diptychs from the 14th century, important 18th-century Grand Tour objects, such as the famous Walpole Cabinet in the Victoria & Albert Museum, and countless pieces of antique furniture and related works of art - picture frames and antique barometers are just two examples – as well as silverware.

 

What you can do with ivory that is not exempt

If you own ivory that is not exempt, you can:

• keep it for personal use
• give it away as a gift
• leave it to someone in your will
• lend it – provided that no payment, exchange or barter is involved

You cannot sell or hire out any ivory you own that has not been registered or certified under any circumstances. If you’re involved in arranging or facilitating an illegal sale, purchase or hire, you will be committing an offence under the Ivory Act 2018.

 

How to check if your item qualifies for exemption

If your item qualifies for exemption, you must register it or apply for and be awarded an exemption certificate before you can deal in the item using the declare ivory you intend to sell or hire out service.

If you need help deciding if your item may qualify for exemption, use the ivory item eligibility checker.

If your item does not meet one of these exemption criteria, you must not deal in it.

 

- Check if ivory has been added

Under all the exemptions, if any ivory has been added after the relevant date (1918, 1947 or 1975) it must have been taken from the elephant before 1975 and added only for the purposes of restoration.

 

- Check if your ivory items can be considered a set

You can register or certify a set of objects as a single item if both the following apply:

• all the objects were produced at the same time with the intention of being kept and used together
• all the objects you are selling or hiring out were part of the same original set

Examples include:

• a teapot with an ivory knob that is part of a tea set
• a dagger with an ivory handle that comes with a sheath

 

- Assess age

To assess the age of an ivory item, you need to demonstrate that it was made or existed before a certain date.

You can do this by:

• getting evidence of the item’s provenance
• having its age verified by an expert
• getting it radiocarbon dated

You do not need to use all 3 of these methods to assess age.

Evidence of provenance could include:

• an original dated receipt or bill to show when it was manufactured, sold or repaired
• a dated catalogue, newspaper article or published article containing photographs or detailed descriptions of the item
• a date mark on the item
• information known by the owner or another person, for example, that the owner inherited the item before the relevant date

An expert who can provide written verification of the item’s date could include:

• a person with expertise or relevant qualifications such as an antiques specialist, museum curator or arts specialist recognised by a relevant trade association, representative body or similar organisation
• a person involved in the associated commercial use of the item if they have the relevant expertise

 

- How to assess percentage volume of ivory in your antique

To register for the ‘less than 10% by volume’ exemption or the ‘musical instrument less than 20% by volume’ exemption, you need to assess the percentage volume of your item.

To assess the percentage volume of an ivory item, you need to consider how much of the item’s total content is made from ivory. For example, a piece of furniture may be made of ivory, wood and other materials.

The percentage volume is the percentage that the ivory content makes up of the total volume of all these materials. A set of objects can be considered a single item.

You should not include any empty spaces or voids when you assess the total volume.

If you cannot find out if there are voids without damaging the item, you can use any knowledge you have about similar items. You do not need to damage items to assess the percentage volume.

To assess the percentage volume, you can:

• judge by eye, if it is clear that the ivory content of the item is less than the percentage allowed – for example, a large piece of wooden furniture with a single small ivory plate around a keyhole (an escutcheon)
• take measurements and use a formula to work out the volume

For items with ivory inlay (thin pieces of ivory on the surface of an object), it may be difficult to work out how deep the ivory goes. You can measure the surface area of the ivory inlays as a proportion of the total surface area of the object.

However, even if the ivory inlay surface area is more than 10% of the total surface area, if the inlay is shallow its percentage volume may still be less than 10% of the total item.

Some examples of common items and their ivory percentage volume:

• a standard piano with ivory keys would likely meet the ‘less than 20% volume’ condition for the musical instrument exemption – however, if the piano has any other ivory parts, other than the keys, it may not qualify so you need to measure and include all the ivory content in the assessment
• a piece of furniture with a small amount of ivory inlay would likely meet the 10% volume condition of the ‘less than 10% ivory by volume’ exemption
• a piece of ivory-handled cutlery is unlikely to meet the 10% volume condition of the ‘less than 10% ivory by volume’ exemption
• a chess set containing ivory chess pieces is unlikely to meet the 10% volume condition of the ‘less than 10% ivory by volume’ exemption

You may not be able to find out the exact percentage volume of ivory, for example, if the item is an irregular shape or if the depth of ivory inlay is difficult to determine. However, it is your responsibility to assess the item and take reasonable care to reach a conclusion about its percentage ivory volume.

 

- Check if ivory is integral to your item

For standard exemption items made before 3 March 1947 with less than 10% by volume, the item will only be exempt if all the ivory is integral. This means the ivory cannot be removed from the item without difficulty or without damaging the item.

Integral ivory includes components designed to be detachable from the item, if without that component the item could no longer function as intended. An example of integral ivory is a detachable ivory knob from a measuring instrument.

Integral ivory would not include an ivory statue that has been temporarily mounted on a plinth.

 

- Check if your item meets the portrait miniature exemption

A portrait miniature is typically a portrait painted on a thin sheet of ivory. The term ‘portrait miniature’ comes from the technique used to create them and not its size.

Portrait miniatures were mainly made to be worn or carried on a person, and could be incorporated into a wide range of items such as jewellery or snuff boxes.

To qualify for this exemption the item must:

• be a portrait miniature made before 1918
• have a total visible surface area that is no more than 320 square centimetres

You can check examples of portrait miniatures that may qualify under the portrait miniature exemption in the Explanatory Notes to the Ivory Act 2018 (section 6, page 16).

A portrait miniature’s main subject matter may show one or more persons or animals. The people or animals may also be representations of gods, religious deities or mythical beings. The painting could also:

• show the subject matter in full – it does not need to be limited to just the head and upper body
• include other details which are not the painting’s subject matter, such as a tree, chair, watercourse or other mythical beings
• be on both sides of the ivory, as long as it meets all the other exemption criteria

If your item has more than one portrait miniature on it, you might not be able to register it under the standard portrait miniature exemption.

You might need to:

• register it as a set or group under the portrait miniature exemption
• register or certify it under one of the other exemptions

If your portrait miniature has an ivory frame

If your portrait miniature has an ivory frame that is integral and original to the item it may be considered as part of the portrait miniature. This means you can register the portrait miniature with the ivory frame as a single item under this exemption.

If the ivory frame is not integral and original then your portrait miniature cannot meet this exemption.

If there is any other ivory on your item, it cannot meet this exemption.

However, your item may be capable of meeting one of the other exemptions.

 

- Assess the surface area for portrait miniatures

The total visible surface area of the portrait miniature must be no more than 320 square centimetres for this exemption to apply.

You can use formulas for different shapes, such as squares and circles, to calculate the surface area of your item.

You can convert an area that’s calculated in square inches into square centimetres by multiplying it by 6.45.

Do not include the portrait miniature’s frame or any part covered by the frame in your calculation.

 

- Qualifying museums exemption

This exemption applies to selling or hiring ivory items to qualifying museums.

The museum buying or hiring the item must be a member of the International Council of Museums or accredited by or on behalf of one of the following:

• Arts Council England
• Scottish Ministers
• Northern Ireland Museums Council
• the Welsh Government

More information can be found within the Arts Council’s list of Accredited Museums.

If the item is owned by a qualifying museum and is being acquired by another qualifying museum, the item does not need to be registered or certified before being sold or hired.

If the item is being sold or hired out to a qualifying museum by anyone other than a qualifying museum, it must be registered through the Declare ivory you intend to sell or hire out service.

 

Register an item under a standard exemption

To register an item under a standard exemption you must:

1. Add up to 6 photos of the item and include a photo of the whole item and any distinguishing features, including where the ivory is.
2. Describe the item and how it meets the exemption criteria.
3. Provide contact details.
4. Declare that the item in your opinion meets the relevant exemption criteria.
5. Pay an administration fee of £20.

After registering an item, you’ll be emailed a unique registration number for each item you register. Keep a record of this number as soon as you receive it so you can match it to your item or items later on.

If the Animal and Plant Health Agency (APHA) believes the item does not meet the exemption criteria, you will be told if your registration has been cancelled or revoked.

Each time an item is sold or hired out under the standard exemptions, the owner or applicant will need to make a new registration and pay the registration fee.

 

- Group registration

You can register multiple items under a standard exemption and pay a reduced administration fee, if all the following apply:

• you’re selling or hiring out 3 or more items up to a maximum of 20 items
• all the items form part of the same transaction, being sold or hired out to the same person
• each item in the group individually meets the same exemption, for example, a group of pre-1918 portrait miniatures

The cost of registering a group of items is £50.

If you have a group of items that you think meet this set of criteria, you need to get an application form and tell us which exemption you plan to apply for by emailing ivoryact@apha.gov.uk.

 

- Register an item or apply for an exemption certificate on someone else’s behalf

You can register an item or apply for an exemption certificate on someone else’s behalf.

You need the owner’s permission, and you will need to provide their name and address. You should also provide the owner’s email address if it’s available.

 

Importing or exporting ivory

You cannot import or export an ivory item to or from the UK for sale or hire, unless you:

• register or certify the item as exempt
• complete the necessary import or export customs declarations and paperwork

For more information on how to complete customs declarations, follow guidance to see which commodity codes fall under the ban on dealing in ivory.

CITES obligations: trading in endangered species

Elephants and their ivory are listed by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

So if you plan to import, export or re-export an ivory item that falls under the Ivory Act 2018, you must check if you also need a CITES permit or a commercial use certificate.

This includes if you move CITES specimens between Great Britain (England, Scotland and Wales) and the EU, and Great Britain and Northern Ireland.

You must register or certify your item as exempt under the Ivory Act before making your CITES application.

If the ivory item you want to import or export is for personal use only, you do not need to register it under the Ivory Act, but you may still need to apply for a CITES permit.

If you plan to use an ivory specimen for commercial purposes you must check if you need a commercial use certificate, also known as an Article 10 certificate. This may be needed for an ivory specimen you plan to:

• use for commercial gain in any way
• keep to sale
• offer for sale
• transport for sale
• display to the public for commercial purposes

 

What is an offence under the ivory ban

It is an offence to:

• breach the ban
• cause the ban to be breached
• facilitate a breach of the ban

Causing or facilitating the ban to be breached includes doing something that helps someone else to deal illegally in ivory.

For example, a dealer in the UK might distribute a catalogue that includes an unregistered ivory item for sale online. The dealer would be committing the offence of facilitating a sale whether or not the sale was to take place in the UK.

In another example, an ivory dealer in the UK might act in a sale arrangement taking place outside the UK. The dealer would be committing the offence of causing or facilitating the sale. If the sale, or any element of it, took place in the UK then both the buyer and the seller, as well as the dealer, would also be committing an offence.

 

What is not an offence under the ivory ban

It is not illegal to sell, hire or buy ivory if:

• all parties to the transaction and anyone involved in the transaction are outside the UK
• the item is outside the UK
• there is no advertising of the item in the UK
• the sale takes place outside the UK

However, as some countries have made ivory dealing illegal, a sale in another country may be illegal under that country’s law.

If you sell, hire or buy through the UK, or any part of the transaction happens in the UK, the item must be registered or certified as exempt. For example, if the item:

• is advertised on a website or media accessible from or available in the UK
• is displayed in a shop, gallery or exhibition in the UK as available for sale or hire
• will move into or out of the UK for purposes of sale or hire

It is the responsibility of anyone intending to be involved in a sale or purchase of an ivory item to find out if the item contains or is made of elephant ivory. If the item does contain or is made of ivory, it will be assumed to be elephant ivory unless you can prove otherwise.

If you buy an ivory item, you, as well as the seller, are responsible for checking that it can be lawfully sold or hired out. Read the guide to buy or hire an ivory item.

If you breach the ban you could face enforcement action and civil sanctions under the Ivory Act 2018.

 

If you started a transaction before 6 June 2022

There was a transition period for transactions in ivory items that started before 6 June 2022.

If you started a transaction before 6 June 2022 you had until 3 July 2022 to complete it, without needing to register or apply for an exemption certificate.

If your transaction was not completed by 3 July 2022, you needed to pause it and either:

• register or apply for an exemption certificate for items that meet the exemption criteria
• cancel the transaction entirely

You could not continue your transaction until you had a registration or exemption certificate.

 

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