Buyer (And Others) Beware ... The Lacey Act

One wonders if Les Paul, the legendary guitar genius and creator of Gibson's "Les Paul guitar," turned in his grave, when federal agents recently raided the Gibson guitar factory in Nashville, Tenn. The raids, in 2009, and more recently in August, 2011, were conducted under authority of the Lacey Act, and serve as a warning to U.S. importers that they must be mindful of not only U.S. law, but of the laws of the country where a product is exported.

The Lacey Act, (16 U.S.C. §§ 3371–3378), introduced and signed into law in 1900, was intended to protect both plants and wildlife by creating civil and criminal penalties for trading in wildlife, fish, and plants that have been illegally taken, transported or sold. Amendments to the Act have expanded the Act's application to the enforcement of the laws of other countries to prevent U.S. companies from being used for trafficking in illegal goods. In other words, violation of the export laws of another country also constitutes a violation of the law of the United States.

While importers are the most directly affected, it is possible under this Act, at least in theory, that guitars, or for that matter any products made with "illegal" wood, owned by individuals, could be seized by federal agents. The instruments of musicians travelling internationally could be subject to seizure if proper documentation of origin cannot be produced. Thus far, the focus of enforcement has been on shippers, manufacturers, and retailers.

In the case of Gibson, armed federal agents raided the factory in November 2009, seizing guitars and fingerboard blanks allegedly made from illegally harvested Madagascan rosewood and ebony. In a second raid in August 2011, wood, electronic files, and guitars were seized that were related to a shipment of sawn ebony logs from India.

In addition to the legal implications, the raid resulted in a business disruption and loss of income. The violation asserted under Indian law, arguably could have been avoided, if the wood had been finished in India, rather than the United States. In addition to wood products, the Act has been applied to a multitude of products and wildlife, including lobsters from Honduras, where criminal convictions were upheld by the 11th Circuit Court of Appeals in United States v McNab, et al, 331 F.3d 1228 (11th Cir. 2001).

It is important that companies importing and purchasing goods from overseas be aware and take necessary precautions knowing that they are responsible, both civilly and criminally, when they import goods that violate the law of the exporting country.

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