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.
Useful resources from various U.S. government sources regarding the definition and exercise of due care include the following:
- “The Lacey Act and Due Care,” a presentation by Tom Swegle of the U.S. Department of Justice, Environment and Natural Resources Division (slides 9-11)
- “Lacey Act Primer”, a presentation from the USDA Animal and Plant Health Inspection Service (slides 17-21)
- Ninth Circuit Model Criminal Jury Instructions, a Lacey Act-specific set of jury instructions that many other sources have found useful in explaining 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.