With enactment of the 2008 Farm Bill (the Food, Conservation, and Energy Act of 2008), the Lacey Act was amended for the purpose of combating illegal logging and expanding the Lacey Act’s anti-trafficking protections to a broader set of plants and plant products. The following points and background are designed to provide a concise summary of the amendments as well as background on the Lacey Act.

The Lacey Act now makes it unlawful to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant, with some limited exceptions, taken in violation of the laws of a U.S. State, or any foreign law that protects plants. The Lacey Act also makes it unlawful to make or submit any false record, account or label for, or any false identification of, any plant.

The definition of the term “plant” includes “any wild member of the plant kingdom, including roots, seeds, parts, and products thereof, and including trees from either natural or planted forest stands."

There are certain exclusions, including: (1) common cultivars (except trees) and common food crops; (2) live plants that are to remain or be planted or replanted; and (3) scientific specimens of plant genetic material to be used for research, except, in the latter two instances, for those species that are listed in an Appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), as endangered or threatened under the Endangered Species Act, or pursuant to any State law providing for conservation of indigenous species threatened with extinction.

Beginning on December 15, 2008, the Lacey Act also requires an import declaration for plants and plant products, except for plant-based packaging materials used exclusively to import other products. Importers must file a declaration uponimportation that contains the scientific name of the plant, the value of the importation, the quantity of the plant, and the name of the country from which the plant was taken.

Anyone who imports into the United States, or exports out of the United States, illegally harvested plants or products made from illegally harvested plants, including timber, as well as anyone who exports, transports, sells, receives, acquires or purchases such products in the United States, may be prosecuted. In any prosecution under the Lacey Act, the burden of proof of a violation rests on the government.

The defendant need not be the one who violated the foreign law; the plants or timber, and the products made from the illegal plants or timber, become “tainted” even if someone else commits the foreign law violation. However, the defendant must know, or in the exercise of due care should know, about the underlying violation.

Violations of Lacey Act provisions for timber and other plant products, as well as fish and wildlife, may be prosecuted through either civil or criminal enforcement actions. Regardless of any prosecution, the tainted plants may be seized and forfeited.