FSC and the Lacey Act: the $500,000 question

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).



  1. I was asked to respond to this report by another party. I will do so in this case, but I should note that the quality of information on FSC Watch is so inconsistent, or frankly out of date or poor quality, and often unbalanced, that I no longer monitor the website’s contents. From my personal perspective, it is not a reliable vehicle for accurate information on FSC certification – contrary to website’s claims of transparency or balance, neither quality is a strength – the purported original intent of making FSC better from integrity or other perspectives has been lost.

    Also, though the FSC Watch website purportedly emphasizes in its masthead “because transparency matters”, there is no author name attached to the above report on the Lacey Act. From another forwarded message I have received, I can see that Chris Lang does sign his reports (thank you). And all other writers submitting comments to an FSC Watch article must provide a name. So why not all the other FSC Watch writers? Why just “posted on FSC Watch”? Shouldn’t the authors of ALL FSC Watch initial postings be clearly and consistently identified?

    Last, on the topic of legality and forest products, FSC Watch keeps referring to the cases of the FSC-certified community forestry operations in Laos and Forestal Venao in Peru as being involved in some illegal activity, or even worse that they produced illegal forest products. In BOTH cases, as has been publicly reported elsewhere by Rainforest Alliance on multiple occasions and in multiple languages, allegations of illegal activity by these operations has not been backed up by any objectively verifiable evidence, despite extensive field audits and other investigations (in the case of Venao in both Brazil and Peru), follow up on any and all information provided by stakeholders, interviews with indigenous groups, etc. If we do actually get objectively verifiable evidence, we will follow up. If readers have more questions, they should contact me directly at rdonovan@ra.org.

  2. When all else fails, falsely accuse your opponent of being misinformed, unbalanced and of poor quality.

    FSC is already dead.

  3. Dear Richard.
    You are not the first, who reclaim that their is not always a name on the postings in FSC watch, i hate it too…. but sometimes the people don’t want to outing their self, but i give You right, must be serious in the postings and not like WWF do it consequently, using their own references…But Equal, here its interesting another Thema;

    You talk about transparency, legality and all this nice word.
    But why these are only empty word in the FSC?
    Why only the FSC and all supporting NGO reclaim all this for others?????
    Why they don’t answer to critical, inconveniently questions?
    Why are the financial situations of the FSC and all their intertwinement together and to the woodindustrie are hidden? Why they dont give of a balance of their business activitiy (more content then two circles)free?

    No, believe me, FSC is only on the paper open, in realty its a very suspect organization with.
    Dont come to me with this stupidity words please. And before please give me a definition what we discuss: You believe, that wood from Burma is legal, for the regime in Burma made the law that it is????
    What is the basis of our discussion about legal Wood? to respect the law of the origin country? This is all?
    Believe me, i have here a lot of sources about illegal woodtrading (under the law of the UN and the EU. Several international Companies, mainly with an FSC certicication.

    IN front of a meeting in Bonn, Sayer, the leader of the german workgroup give me accidentally an answer to my question who the FSC guaranty the legality of the wood:
    i repeat only in German:

    Der FSC garantiert nicht die Legalität, er vermittelt sie

    No other Questions…..
    Gerriet Harms ( NoFSC@eurobinia.eu)

  4. Nickarz is a putz. Shouldn’t you be tied to a tree in some Canadian Caribou habit holding a sign? That’s the extent of any solution you’ve proposed

  5. Barry,

    Sorry for my late reply. I just spent 77 days chasing whalers around the Antarctic continent. Yes, I should be getting back to Canada and working on forest issues again. My solution is the sanest and will result in an intact forest.

    Dave Nickarz

  6. Wildwood, New Jersey, is presently hammering down “uncertified” Ipe in its close to $4 milllion re-decking of its boardwalk project. Since the city has contracted with an outside company – Walters Marine – to do the work they are denying they have any documentation whatsoever on the source of the wood. “The contractor has it”.

    Walters says the supplier of the Ipe has the documents and the supplier Martin’s Piling of Kenilworth NJ refers us back to the original contractor Walters!! We have a “denial of access ” complaint into our state government.

    The wood most likely is illegally logged and we know its from Brazil. How do we implement the Lacey Act?? We have US Fish and Wildlife looking into it but they are understaffed. This project is fully funded by taxpayers dollars including $2.5m from NJ and around $400,000 from the US Dept of Agriculture.

    Someone in US Fish & Wildlife informed us that Ipe is not protected under the Lacey Act?? Where do we go from here? Our group has been fighting for over 14 years shore communities in NJ in their use of rainforest wood for boardwalks. FSC certification has been our biggest enemy. So long as there is a label the municipalities claim they are making a “green” decision and should be congratulated.

    We need clarification and we need help.

  7. FSC was dead forever,it is USA’s a day dream. Protecting environment is a lie from USA,Please see Iraq & Afghanistan
    war started by USA,so much forest and life were destroied.

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