Forest Product Importation Laws
Both the United States and the European Union, the two largest consumers of imported forest products, have taken legal steps to ban the importation of forest products that were illegally harvested in their country of origin. Other countries, such as Japan and China, have considered or are considering similar measures. These laws include:
- The 2008 amended Lacey Act in the United States;
- The Timber Regulation, in the European Union, published in 2010 and due to enter into force in 2013; and
- The Illegal Logging Prohibition Bill in Australia.
The laws differ in some details but share the intent of closing consumer markets to illegal products. To learn more about each law, visit the Forest Legality Alliance's Laws & Policies page.
Basic Due Care Questions
One of the important elements of the 2008 amendments to the Lacey Act is the “due care” component of the penalty scheme for violations of the Act. In cases where a person is found to have violated the law unknowingly, the penalty scheme hinges on whether that person exercised due care - in essence, whether that person did everything he or she could to determine whether the product in question was legal.
The due care provision removes an incentive to turn a blind eye to the sources of wood products; ignorance is not an excuse for failure to comply with the law. But due care is an evolving and flexible concept, and it applies differently to different categories of persons with varying degrees of knowledge or understanding. Broadly speaking, due care means “that degree of care which a reasonably prudent person would exercise under the same or similar circumstances.” There is currently no certification scheme, standard, verification, stamp, or any other product, service or mark that is considered legal proof of due care. U.S. buyers should beware of any wood product that purports to be “due care certified,” “Lacey compliant,” or similar.
“Lacey Act Primer”, a presentation from the USDA Animal and Plant Health Inspection Service (slides 17-21), provides more information on the definition and exercise of due care.
The European Timber Regulation has a “due diligence” requirement for operators placing timber or timber products on the European market (the Regulation takes effect in March 2013). The due diligence requirement, at its core, is meant to ensure that operators undertake risk management exercises in order to minimize the risk of placing illegally harvested timber products on the EU market. Unlike due care in the U.S. context, due diligence in the EU must be undertaken by operators as an essential component of legal compliance with the upcoming Regulation.
The three key elements of the due diligence system, as defined by the European Commission, are:
- Information: The operator must have access to information describing the timber and timber products, country of harvest, species, quantity, details of the supplier and information on compliance with national legislation.
- Risk assessment: The operator should assess the risk of illegal timber in his supply chain, based on the information identified above and taking into account criteria set out in the regulation.
- Risk mitigation: When the assessment shows that there is a risk of illegal timber in the supply chain that risk can be mitigated by requiring additional information and verification from the supplier.
Unlike the Lacey Act, which does not recognize any third-party licenses or other schemes as proof of legality, the European Timber Regulation scheme recognizes timber and timber products with valid CITES or FLEGT licenses to comply with the requirements of the Regulation.
The above is for informational purposes only and is not legal advice.
The Convention on International Trade in Endangered Species of Wild Fauna and Flora, commonly known as CITES, is an international government-to-government agreement whose purpose is to ensure that international trade in wild animals and plant species does not threaten the survival of these species. 175 countries are parties to CITES, which is a binding legal agreement. CITES protects, to varying degrees, more than 28,000 species of plants, and another 5,000 or so species of animals.
CITES works by making international trade in specimens of the species it covers subject to a system of controls to ensure that the trade does not overexploit the species. A licensing system must authorize all import, export, re-export, and introduction of listed species. Each party to the Convention designates at least one Management Authority responsible for administering the licensing system, as well as at least one Scientitic Authority to advise on the effects of trade on the status of the species.
Species covered by CITES are listed on one of three Appendices.
- Appendix I lists species threatened with extinction, which may only be traded in exceptional circumstances.
- Appendix II lists species that are not necessarily threatened with extinction, but which must be traded in a controlled manner in order to ensure their continued survival.
- Appendix III lists species that are protected in at least one country, which has asked other CITES Parties for cooperation in controlling trade.
The Convention website provides detailed explanations of how CITES works, a trade database of listed species, identification manuals, export quotas, official contacts for CITES authorities in each Party, and further information.
For more information on importing and re-exporting CITES Protected species, see USDA's CITES Timber Species Manual and the UK government's guidance on how to apply for a CITES permit to import and export endangered species for commercial use.
"Sourcing Legally Produced Wood: A Guide for Businesses", developed by WRI with support for the World Business Council for Sustainable Development (WBCSD), provides an overview of key legality issues in the global wood trade that businesses should consider when purchasing wood and paper-based products. Topics covered include trade regulations, public and private procurement policies, trade bans, and resources for meeting legality requirements.
WWF-GFTN/TRAFFIC's "Exporting In a Shifting Legal Landscape", is a guide to legal exports for companies that export, or intend to export, forest products to the US, EU and Australian markets. It is designed to allow companies to assess their own performance and offers advice on how they can meet the needs of their customers in the US, EU and Australia.
The GFTN Guide to Legal and Responsible Sourcing of Forest Products lays out a generic approach for the development and implementation of a responsible sourcing policy. The guide is aimed at any medium-size or large enterprise, and in appropriate circumstances, smaller enterprises. The guide outlines the various ways in which sourcing organizations can exercise due diligence and demonstrate compliance with best practice based on compliance with their own sourcing policies.
The Global Forest Registry is an online tool for responsible timber sourcing, an interactive world map with information on the risk of sourcing wood considered "unacceptable" according to the Forest Stewardship Council's Controlled Wood system. One of the five categories of unacceptable material is illegally harvested. The site is being improved for enhanced user experience and is continuously furnished with data.
The International Tropical Timber Organization publishes a bi-weekly Tropical Timber Market Report that provides market trends and trade news from around the world, including news on timber regulations and illegal trade of timber.