Issue 3: January 10, 2012
Lacey's Unimaginable Scope of Laws and Products
“It is unlawful for any person to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant taken, possessed, transported, or sold in violation of any law or regulation of any State, or any foreign law, that protects plants.” Lacey Act -- Section 3372, (a)(2)(B)
In the three years since the Lacey Act was amended to cover plant and plant products, countless American businesses may have been unknowingly breaking the law every day by simply buying or transporting commonly imported plant and plant products. What are these contraband products? Here are just a few examples: clothing containing rayon, coffee filters, egg cartons, pet shampoo (pine tar), books, chewing gum, cigarette filters, lipstick (wood rosin), any machinery with a rubber gasket, toothpaste, shoe polish … the list goes on and on as the scope of products covered by Lacey is unimaginable.
And here’s the kicker. If any of these plant and plant products were “taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law whether in interstate or foreign commerce,” (italics added) then you may very well be in possession of contraband goods. If caught, that “contraband” will be seized by the government and you will never see it again.
The confusion for consumers is understandable. They frequently ask questions like, “will my product (guitar, etc..) be seized if I try to sell it or travel back into the U.S.?” The U.S. Department of Justice tried to address these concerns through a letter to Rep. Blackburn when they asserted that people who "unknowingly possess a musical instrument or other object containing wood that was illegally taken" would not face criminal charges. This letter didn’t clarify the real problem for consumers - “Will my item be seized?” And the U.S. government is eerily quiet on that point.
That is the paradox of the 2008 Lacey Act Amendments. The folks who drafted the language of the law sought to give federal agencies the power to go after criminal enterprises that were knowingly trading in illegally sourced plant and plant products. But by making the scope of laws and products covered by Lacey so vast they made it virtually impossible for law-abiding companies to comply – thereby creating unknowing and unintended “criminals” out of honest, law-abiding business owners and consumers.
The problem of this virtually limitless scope can be easily addressed. The Lacey Act should be revised to be more focused and more transparent about the foreign laws that can give rise to a violation under U.S. law. In addition, the Executive Branch should identify in advance the foreign plant protection laws that are the subject of concern, so that businesses can meaningfully perform due diligence on their supply chains with respect to those specific laws, rather than on open-ended and potentially unknowable list of foreign laws.
“They said it”
“The Lacey Act hangs like the sword of Damocles over the heads of American businesses.” Andrew Grossman, The Heritage Foundation
“It is the responsibility of the importer to be aware of any foreign laws that may pertain to their merchandise prior to its importation into the United States. Currently, the U.S. Government has no plans to create such a database.”
“Under the Lacey Act, as amended, ‘Plant’ means: ‘Any wild member of the plant kingdom, including roots, seeds, parts or product thereof, and including trees from either natural or planted forest stands.’”
“The Lacey Act pertains to plants (in particular trees) that are illegally harvested. There is no list because the Lacey Act applies to all plants, as defined in the statute.”
Questions IWPA has received from the media (and how we answered them)
Don't you think you're painting a worst-case scenario? Lacey was never designed to hurt good businesses.
That’s the problem with unintended consequences: they come about regardless of intent. Yes, Congress intended to include only foreign laws related to Lacey Act policy objectives (i.e. those intended to promote protection and conservation and those directly connected to logging practices). In practice, however, a broad interpretation by enforcement agencies makes it clear that an unknowably wide and elastic set of foreign laws unrelated to logging could potentially form the basis of a violation. We can improve Lacey so that limited government resources are focused on the fight against illegal logging.
A look ahead
Join us in Indian Wells, California March 28-30, 2012 for the IWPA World of Wood Convention, which brings together more than 250 overseas manufacturers, North American importers and distributors and the leading ports and companies that facilitate international trade.
Highlighting the program this year is Gibson Guitar’s CEO, Henry Juszkiewicz, and more than a dozen other speakers on subjects from the economy and international trade policy to business leaders from your key market segments. This year’s convention also features a half-day workshop specifically on Lacey Act compliance with tools and techniques you can use.
Learn more or register for IWPA`s Convention.
What Next? What do we need from you?
IWPA is actively working to improve the Lacey Act. Our frequent visits with Members of Congress and the aggressive outreach we are doing to all affected industries are greatly assisted by your outreach as well. Please continue to use this publication and the information provided to inform your customers, your suppliers, your friends and your neighbors. Refer to our website for updates, and send anyone our way who wants to know more about our actions to protect the integrity and improve the functioning of Lacey. As always, your thoughts and comments as well as your continued support is greatly appreciated.
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The Lacey Act and You bulletins are published through our voluntary Special Projects Fund. Please contact Cindy Squires for more information on how to support IWPA’s Special Projects.
The Lacey Act & You bulletins are published through IWPA's voluntary Special Projects Fund. Please contact Cindy Squires for more information. Special Projects. Contributors to date:
- Alan McIlvain Company
- American Pacific Inc
- Argo Fine Imports Inc.
- Baillie Lumber Co.
- Elizabeth Baldwin
- Bridewell Resources
- Brookside Veneers Ltd.
- Clarke Veneers & Plywood
- Columbia Forest Products
- Holland SW International
- IHLO Sales & Import Co
- International Specialties Inc
- John A. Steer Co.
- Liberty Woods International
- Newman Lumber Co.
- Pollmeier Inc.
- PRS Guitars
- Robert Weed Plywood Corp.
- South Jersey Port Corp.
- Spartan Sources
- Tradelink Wood Products
- UCS Forest Group
- VM International
- Wood Brokerage International