(This page was last updated in March 2022)
US Lacey Act
The Lacey Act, initially enacted in 1900, is a United States law that bans trafficking in fish, wildlife, or plants that are illegally taken, possessed, transported, or sold. Prior to 2008, the Lacey Act only applied to a narrow range of plants indigenous to the United States and did not prohibit trade in plants taken in violation of foreign law. However, in 2008, the Lacey Act was amended to include a prohibition on trade in plants and plant products, such as timber and paper, harvested in violation of foreign law. This landmark legislation constituted the world’s first ban on trade in illegally sourced wood products.
There are two major components to the Lacey Act plant amendments: a ban on trading plants or plant products harvested in violation of the law; and a requirement that importers of plants and plant products file a declaration identifying the scientific name, value, quantity, and country of harvest for most plant products.
The Lacey Act is a fact-based statute rather than a document-based statute. This means that its prohibition applies to trade in illegally harvested plants and plant products, even if the person trading in these products has paperwork or certification purporting to establish their legality. In other words, only actual legality counts -- no third-party certification or verification schemes can be used to "prove" legality under the Act if the timber was illegally harvested.
Penalties for violating the Lacey Act vary in severity based on the violator's level of knowledge about the illegal origin of the plant or plant product. Felony criminal penalties, including fines and imprisonment, may be imposed on those who traffic in plants or plant products that they know to be illegally harvested. Misdemeanor criminal or civil penalties may be imposed on an individual or company who failed to exercise “due care” to determine whether the plant or plant product was legally harvested. Due care means 'the degree of care which a reasonably prudent person would exercise under the same or similar circumstance" (Senate Report 97-123). The links below provide more detail about how due care has been interpreted under the Lacey Act. As opposed to misdemeanor criminal or civil penalties, the government does not have to establish any level of knowledge on the part of the person regarding the illegal nature of the product to forfeit it: civil forfeiture of illegally harvested plants or plant products may be imposed on a strict liability basis.
More information from various U.S. government sources regarding Lacey Act penalties and the definition and exercise of due care include the following:
- The USDA Animal and Plant Health Inspection Service website on the Lacey Act.
- The United States Court of Appeals for the Ninth Circuit has issued jury instructions that explain the level of knowledge required for a "knowing" violation of the Lacey Act and what constitutes "due care".
- In the plea agreement resolving a criminal action brought by the United States against the U.S. wood products company Lumber Liquidators for trafficking in illegal wood products, the company agreed to a compliance framework to ensure it exercised due care in the future in its trade in wood products to better ensure it is legally sourced. Additional guidance on a due care framework as part of a comprehensive compliance plan was provided in the settlement with Young Living Essentials Oils.
Enforcement to date
The Lacey Act has a long history of successful enforcement as a statute prohibiting trade in illegally taken fish and wildlife, and over a century of case law on these older provisions of the Act is readily available. The Lacey Act plant product amendments have been used in at least four enforcement cases to date involving trafficking in illegal timber or plant products harvested in violation of foreign laws: a 2012 criminal enforcement agreement entered into between the U.S. and Gibson Guitar, a major U.S. guitar manufacturer, relating to ebony wood products imported from Madagascar; a 2016 criminal enforcement action against Lumber Liquidators for importation of wood flooring manufactured in China that was comprised of wood illegally harvested in the Russian Far East; a 2017 criminal enforcement action against Young Living Essential Oils for trafficking in illegal rosewood oil from Peru and spikenard oil from Nepal; and a September 2021 criminal enforcement action against Global Plywood and Lumber Trading, LLC, for trafficking in illegally taken wood products imported from Peru. Under the criminal plea agreement in the recent Global Plywood and Lumber Trading case, the company was required to pay $200,000 in restitution to the Ministry of Environment of Peru as compensation for failing to exercise due care when it imported illegally-sourced timber from the Peruvian Amazon, as well as a $5,000 fine.
The Lacey Act and other criminal statutes are also used to prosecute persons and companies who traffic in timber illegally harvested within the United States. For example, in April 2016, Harold Kupers, a timber mill owner from Washington State, was sentenced to six months in prison, six months of home detention, and three years of supervised release, and ordered to pay $159,692 in restitution for violating the Lacey Act by trafficking in big leaf maple illegally cut on national forest land. Three men who illegally cut the wood also pleaded guilty to theft of public property or conspiracy to steal public property for illegally harvesting the maple trees in a national forest. In another case in Washington State involving illegal harvest of big leaf maple in a national forest, Justin Andrew Wilke was convicted in July 2021 of conspiracy, theft of public property, depredation of public property, trafficking in unlawfully harvested timber, and attempting to traffic in unlawfully harvested timber. Wilke was sentenced to twenty months in prison and ordered to pay restitution to the U.S. Forest Service. This prosecution involved the first use of tree DNA evidence in a federal criminal trial.
Other U.S. Government Documents and Links
In order to fill out the declaration form correctly, importers generally need to know the scientific name of the wood species being imported. To facilitate this research for importers, the Forest Services operates a Common Name Database with the scientific names of tree species used in wood products.
U.S. Customs and Border Protection has provided some guidance on the filing of Lacey Act declarations, available on their website.
The Animal Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture is a primary implementing agency for the amended Lacey Act’s declaration requirement. APHIS Lacey Act website has a variety of information on the Lacey Act, particularly about the filing of the declaration requirement. This information includes the phased implementation schedule for the requirement that importers file a declaration upon importation of plant products, including timber; guidance on the information to be included in a declaration; and direct contact information. The site also offers the opportunity to be registered as a stakeholder in the declaration requirement implementation process and receive regular updates from APHIS.
APHIS provides two options for filing declarations online: The Automated Commercial Environment (ACE), and the Lacey Act Web Governance System (LAWGS). More information and guidance on declarations can be found at the APHIS site (linked above).