The Lacey Act: What Print Buyers & Designers Need to Know

A Q&A with Environmental Expert Gary Jones

At our 4th Annual Print Buyers Conference, Gary Jones delivered a keynote on what constitutes a sustainable printing company. Gary is an industry-acknowledged expert in sustainable printing. He is the director of the environmental, health and safety (EHS) affairs at the Printing Industries of America near Pittsburgh, PA. His primary responsibility is to monitor and analyze EHS regulatory activities at all government levels and provide representation on behalf of the printing industry.

Towards the end of his keynote, Gary introduced the crowd to the little-known Lacey Act.

It really caught my attention as something that print buyers and print designers need to know about. So I asked Gary 10 questions about this key piece of federal legislation.

1. Gary, in a nutshell, what is the Lacey Act – and why does it matter to print customers?
   
   The Lacey Act was enacted in 1900 and is the primary law that prohibited trade in illegally captured animals and wildlife products such as hunting to supply commercial markets, interstate shipment of unlawfully killed game, and introduction of harmful exotic species and killing of birds for feather trade. In May 2008, the Act was amended to extend this protection to prohibit all trade in plant and plant products (e.g., furniture, paper, or lumber) that are illegally sourced from any U.S. state or any foreign country.The Act requires importers to declare country of origin for harvest and species of all plants contained in product. The deadline for paper is being phased in and takes effect April 1, 2010 to September 1, 2010. The declaration requires the following information:
   • Scientific name of plant (including genus & species)
   • Value of importation
   • Quantity of the plant
   • Name of the country in which the plant was harvested
   • Paper and paperboard products with recycled content require the average percent recycled content without regard for species/country of harvest

   The Lacey Act is significant in that the authority granted to the U.S. government means that it can now seek jail time, levy fines, and seize goods for those who violate the law. The potential for enforcement is not limited strictly to those companies that make products or sell illegally harvested goods - but to those who actually receive them.

2. As it relates to printers and their customers, how is it enforced?
   
   The primary agency with enforcement responsibility is the U.S. Fish and Wildlife Service. Enforcement occurs at the border when covered products are imported and when an investigation would occur. Any importer of a covered plant or product derived from a covered plant must have declaration forms filed as part of the importation process.
3. What exactly is “illegal” under the Lacey Act, with regards to paper?
   
   There are two areas where violations can occur. The first is the act of illegally harvesting a protected animal or plant and the second area is the actual trading of the illegally sourced animal or plant. The second is more pertinent to those who purchase paper as the law states one must “import, export, transport, sell, receive, acquire, or purchase.” The word receive is highlighted because fines can be levied for knowingly and unknowingly receiving paper made from illegally sourced fiber such as trees and/or other plants.The potential areas for concern are first and foremost the paper that is being used to produce a product, but the scope of the act does not just address unprinted paper. The law requires that paper that is made outside of the U.S. must have a declaration filed. However, a declaration would also be required if finished printed goods were printed outside of the U.S. and then imported.

   In fact, there are several other scenarios where the printer or print customer may have to file a declaration. For example, if a portion of a product is printed outside of the U.S. and imported and added to or assembled in the U.S., then a declaration for the imported piece is required. If the pulp is from the U.S. and the paper is made in the U.S., but the printing occurs outside of the U.S., then a declaration would be required. Likewise, if the pulp is from the U.S., but the paper is made outside of the U.S., even though the printing may be done in the U.S., then a declaration would be required. Lastly, if the pulp is imported and the paper and printing is done in the U.S., a declaration is required.

4. Are there specific steps that you recommend print customers take to ensure that their printers are in compliance with the Lacey Act?
   
   Yes, the best approach to take is to “exercise due care,” which is specifically mentioned in the Act. Printers and print customers who can demonstrate that they have “exercised due care” will be able to mitigate any potential penalties that could be levied against them. However, even those companies that can show they are innocent can still have the products made with the illegal plant or plant product seized by the government.Due care is situational and means that degree of care which a reasonably prudent person would exercise under the same or similar circumstances. Due care is applied differently to different categories of persons with varying degrees of knowledge and responsibility. For example, a zoo director is expected to know and understand which species are protected by various countries where the average person going into a pet store to obtain a pet would not be expected to know which species are protected.

   Due care can be shown by taking positive actions to show that efforts were made to determine the source and origin of paper being used for products. Developing a policy on the steps that will be taken for paper purchasing will provide a basis for actions and will serve as baseline for all employees involved in paper purchasing. Providing training on the purchasing policy and documenting the training also will show a positive response. Most importantly, ask questions, visit suppliers and document everything that can be documented. For example, if the paper that is being purchased is imported, ask for a copy of the declaration. If the paper is made from pulp that was imported, ask for a copy of the declaration. If the pulp and paper is produced domestically, then a letter or other supporting information from the vendor will be necessary. Asking questions is always a good starting point.

5. Does SFI or FSC certification mean a company is already covered by (in compliance with) the Lacey Act?
   
   No. SFI and FSC certification does not always guarantee that the fiber used in paper is completely traceable. The only designation where the fiber is 100% traceable is with the Pure Fiber certification, in which all of the fiber in the paper came from a certified source. Since this paper is not common because most paper companies do not dedicate production to only Pure Fiber certified paper, almost all certified paper is a mixture of fiber from certified areas and fiber from “controlled fiber” sources.Controlled fiber refers to any wood fiber in an FSC product that isn’t from an FSC forest or recycled. All Controlled sources are screened to ensure they aren’t contributing to any of the five most destructive practices in forestry:
   • Illegal logging
   • Natural forest conversion to other land uses
   • The liquidation of high conservation value forests
   • Civil rights violations
   • Genetic modification of forest species (traditional breeding being fine, of course)

   In addition, paper that has the recycled designation means that the paper is made from recovered fiber, regardless of the source. The fiber in the paper could be from any source as long as it has been recovered and used to make recycled paper.

6. Can you give us one example of a violation of this Act?
   
   On November 17, 2009, the first ever enforcement action under the law was initiated when U.S. federal agents raided Gibson Guitar Corporation’s manufacturing facility in Nashville, Tennessee. The raid was part of an investigation into the illegal trade of a rare wood species used on some of Gibson’s musical instruments. The agents seized wood, guitars, and other documents. The wood in question was harvested from Madagascar. Following political turmoil in Madagascar earlier in 2009, loggers invaded Madagascar’s national parks and plundered valuable hardwoods, such as rosewood and ebony, for export to international markets.
7. Would you say that U.S. printers are well versed in the guidelines set forth in the amended Lacey Act? I guess I’m asking if print customers can safely rely on their printers to comply with it.
   
   Since the Lacey Act Amendments are recent changes, the knowledge base of many printers, customers, and other paper consumers is relatively low. The best course of action for printers would be to initiate a conversation with their paper suppliers and for print customers to initiate a conversation with their printers and if they are buying paper directly from paper companies or distributors, to start talking and asking questions. I have complete confidence that printers will be able to put in place the necessary program to ensure that their customers will have confidence in their print provider.
8. What are penalties for failure to comply?
   
   The penalties for knowingly violating the law or filing a false declaration can be severe. The fines for trading (buying or selling) illegal plants or animals can be up to $500,000 for a corporation and $250,000 for an individual along with a prison sentence of up to 5 years. The fine for knowingly filing a false import declaration is a fine of up to $10,000 and a possible prison sentence of up to 5 years. In both instances all goods will have to be forfeited.The fine for “unknowingly” trading in illegal plants or animals without exercising “due care” is a fine up to $200,000 for corporation, $100,000 for individual, or twice maximum gain/loss from transaction. There is also a possible prison term for up to one year and forfeiture of goods. The fine for “unknowingly” filing a false import declaration without exercising “due care” is $250 and possible forfeiture of goods.The fine for “unknowingly” trading in illegal plants or animals with exercising “due care” is forfeiture of goods. The fine for “unknowingly” filing a false import declaration with exercising “due care” is $250 and possible forfeiture of goods.
9. How will a customer know that his or her printing company is in compliance?
   
   The only way to ensure that the paper being used by a print provider is in compliance is to ask questions and request documentation. Documentation is the key to being able to show that “due care” was exercised and the source of the fiber being used to produce the paper is known.
10. In closing, what advice would you give to print customers regarding this legislation?
    
    There are two important steps that need to be taken. The first is to learn as much as you can about the Lacey Act, and the second is to be prepared to answer the question, “Do you know where your paper or the fiber in the paper is from and can you prove it?” There are several sources of information about the Lacey Act. A good starting point is the U.S. Department of Agriculture web site.

© 2010 Gary Jones and Margie Dana. All rights reserved.