In May 2008, the US government enacted a revision to the Lacey Act, a hundred year-old piece of legislation that renders it illegal to trade in goods in the US which are from illegal sources, which now makes the Act applicable to the timber trade. Whilst timber traders are no doubt hoping that use of FSC certified wood is going to keep them out of prison, they may be in for a nasty shock.
This year’s revision to the Act came about through a long lobbying campaign by US environmental groups, who were also joined by the US wood industry and labour organisations in seeking to exclude illegally acquired wood from outside the US. Under the new Act, there will be a scale of penalties applied to those caught trading in illegal wood products. These range from a $0.5 million fine, up to five years in prison, and forfeiture of goods for those proven to have been “knowingly” trading in illegal woods products and failing to practice “due care” in seeking to avoid doing so; through to simple forfeiture of goods for those found to be trading in illegal woods “unknowingly” and despite having practiced “due care”.
This raises an important question in relation to the FSC, which could determine whether company bosses go to prison and have their assets seized; does the trading of illegally sourced woods, which are nevertheless FSC certified, represent the practice of “due care” or perhaps conversely of “knowingly” trading illegally sourced woods?
Many wood and paper traders will no doubt assume that FSC products are at least legal. The FSC’s Pinciples and Criteria do include a stipulation that the forestry operation should comply with all relevant laws. However, for the last two years, FSC-Watch has repeatedly exposed that this requirement is not consistently complied with.
FSC-Watch believes that, given the long and now well-known track record of FSC certificates being issued (by, amongst others, the Rainforest Alliance, one of the promoters of the new Act) to companies that are operating illegally, the purchase of FSC certified wood products could not be seen as an indicator of a trader having exercised “due care”. In some cases, where specific certificates have been shown – by FSC-Watch amongst others – to have been issued to law-breakers, US traders might even find themselves charged with “knowingly” trading illegal (but FSC certified) wood, and going to prison as a result.
The problem is likely to be especially acute in relation to FSC Mixed Sources labelled FSC wood. As FSC-Watch has been showing for at least two years, and on which there is now clear evidence and general agreement amongst even timber industry members of the FSC, the ‘Controlled Wood’ policy, which ‘regulates’ the non-certified content in ‘Mixed Sources’ certified wood, is effectively useless in terms of ensuring exclusion of wood from undesirable sources, including those that are illegal. The trade in Mixed Sources FSC certified wood products containing illegally-sourced components might therefore be deemed by courts to be an indication of non-application of “due care”.
Of particular interest to US courts might be the fact that the Norwegian government has already made a well-publicised decision not to rely on FSC certification as a means of ensuring government procurement of legal-only timber, noting that “Today there is no international or national certification that can guarantee in a reliable manner that imported wood is legally and sustainably logged”.
FSC-Watch will continue to do its best (on an entirely voluntary basis) to inform traders of FSC certificates that have been issued to illegal operations. However, we cannot guarantee that we have identified more than a small fraction of such cases; we welcome information from any source that can help us to expose other problem certificates.
The US wood industry might feel that, given the severity of the punishments for contravention of the Lacey Act, a good investment would be a comprehensive research programme into the legality of FSC-certified sources. Given that the FSC has so far shown itself to be powerless in cancelling such certificates, an independent database could be established showing where FSC certificates are being applied to questionable or outright illegal operations, and which traders would then know to avoid.
As ever, the scrapping of FSC’s so-called Controlled Wood standard, and major revisions to the ‘Mixed Sources’ labelling policy, would be a great help in efforts to stamp out the trade in illegal products, and might save the US wood trade a lot of fines or even prison sentences.
A very useful briefing on the Lacy Act published by the Environmental Investigation Agency is available here (pdf file: 3.2 Mb).