Looking at the Lacey Act in the United States certainly requires a look at the first Lacey enforcement action, that being against Gibson guitars. In August 2011, for the second time in two years, Gibson's facilities in Nashville were raided for an alleged Lacey Act violation, and for a second time everyone is waiting to hear what-if any-charges will be filed.
I have no inside knowledge of the case, on either side. I've been reading the news the same as everyone else. And, like everyone else, I'm very interested in the public reaction to the case and also how it may impact Lacey's future.
When the Gibson case hit the papers, it was the first time many Americans outside the wood industry had even heard of the Lacey Act. The coverage was almost overwhelmingly negative - how could a law punish an American company for importing wooden fingerboards to be finished in the United States by American workers, rather than in India, where the material was sourced from? How can a customs issue be covered by a law that is aimed at preventing illegal logging? In an era where government overreach is a politically charged issue, and in the run-up to an election year, the American people can be forgiven for their outrage.
They can also be forgiven if they are confused and concerned about what Lacey now means to them. When the Lacey Act was originally passed in 1900, it only covered birds. The scope gradually expanded with each amendment until 2008, when it was drastically expanded to cover the importation of all plant and plant products. This conservation law is intended to eradicate illegal logging by making American companies liable for the products they sell. And not just companies, but consumers as well.
Since there is currently no exception for goods produced prior to the law's passage in 2008, it is possible under the law that a person traveling with a vintage guitar could have their instrument seized. It's unlikely that person would face jail time, but they would have lost a priceless instrument. And under the Justice Department's interpretation of the Lacey Act, no person or company can petition the courts for the return of their goods.
There is also a problem with the Lacey Act's definition of illegal. It is not limited or specific to harvesting questions. Illegality in the case of Lacey means in violation of virtually any law. And while I agree that we don't want to break the law in any way, it's putting an extraordinary burden on all wood professionals (or consumers) to know the law both within their field and without. Just as discussed last week, Lacey can be enforced for accidental violation just as aggressively as for deliberate actions.
That's because there is no due diligence protection in Lacey. Nor is there any innocent owner protection or option to appeal confiscation of a load of wood or a single guitar. And the U.S. government has made it very clear that they are the only ones who can determine if the law, foreign or domestic, has been broken. In past (non-wood) cases of Lacey, foreign governments have disagreed with the U.S. government's interpretation or enforcement of the foreign laws.
In the case of Gibson, that means if the wood exported from India was 10 mm rather than 6 mm, it is illegal based on Indian export laws. Apparently, from what I've read, there isn't a dispute about the actual legality of the wood itself-it seems that everyone agrees it was harvested legally-but rather in the extent of it's processing. In other industries such as fish imports, Lacey has previously been enforced for failure to meet certain packaging and labeling requirements.
This law, as currently written, seems able to find everyone guilty, even those without intent, and no matter what actions they take to comply. It forces American companies to draw legal conclusions about foreign laws-conclusions that aren't automatically going to be accepted by the U.S. government. It covers every person who has ever bought any product that contains wood. And as discussed in previous posts, it's unclear about applications when a company tries to make things right about a violation.
If you would like some more information on the Lacey Act and the Gibson case, here are a few recent articles: