Responsibilities of Food Packaging Manufacturers Under the Lacey Act

Companies in the food packaging manufacturing chain are not, for the most part, currently subject to declaration requirements under the Lacey Act. However, packaging manufacturers that trade in plant-based products must exercise due care to avoid importing any plant-based materials that were illegally taken, possessed, transported, or sold since to knowingly do so is prohibited under the Act.

The Lacey Act of 1900 (16 U.S.C. §§ 3371–3378) is a federal law that originally focused on the preservation of game and wild birds but has been amended several times since its enactment. It currently prohibits the trafficking and importing of plants, wildlife, and fish into the United States that have been illegally taken, possessed, transported, or sold. The most recent amendments to the Act, which were part of the 2008 Farm Bill, expanded protection to a broader range of plants and plant products.

More specifically, the Lacey Act now prohibits the import, export, transport, sale, receipt, acquisition, or purchase of:

• Illegally harvested plants (e.g., stolen plants or plants harvested from protected land);
• Plant products taken, possessed, transported, or sold without the payment of appropriate royalties, taxes, or stumpage fees that may be required by domestic or foreign law; and
• Plants taken, possessed, transported, or sold in violation of any domestic or foreign law governing the export or shipment of plants, even if such law is not enforced by the country where it is in effect.

The Lacey Act requires that persons importing covered plants and plant products into the U.S. must exercise due care to determine whether the plants were "taken, possessed, transported, or sold in violation of, or in a manner unlawful under any underlying law, treaty, or regulation." The U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS)—the agency that enforces Lacey Act requirements with respect to plant-based materials—has explained that "due care" requires that "a person facing a particular set of circumstances undertakes certain steps, which a reasonable man would take to do his best to insure that he is not violating the law."

APHIS has provided examples of situations that should raise flags for importers exercising due care. These include: purchasing goods at significantly below market rate, purchasing goods for cash and without paperwork, and accepting goods accompanied by suspect paperwork. Importing goods under these circumstances may indicate that the goods were obtained, produced, or harvested illegally. In terms of when penalties may be enforced under the Lacey Act, penalties are imposed only for knowingly violating the law.

Declaration Requirement

The 2008 Amendments also added a declaration requirement for importers of certain plant and plant-based products. This declaration must include: the scientific name (including genus and species); the value; the quantity, including unit of measure; and the country from which the plant was taken. Enforcement of the import declaration requirement is being phased-in, based on Harmonized Tariff Schedule (HTS) classifications. The most recent Schedule of Enforcement of the Plant and Plant Product Declaration Requirement, was published by APHIS on October 29, 2013.

At this time, there are no de minimis exceptions under the Lacey Act—either with respect to the substantive prohibitions or the declaration requirement, although, APHIS published an advance notice of proposed rulemaking in 2011, in which the Agency asked for comments on "[w]hether an exception from the declaration requirements for products containing minimal amounts of plant material could be developed that would be less burdensome while still carrying out the intent of the Lacey Act amendments…" (See Fed. Reg., 79:38330-2 (June 30, 2011).)

Paper products that are identified in HTS Chapter 48 currently are not subject to declaration requirements under the Lacey Act. Certain types of paper, paperboard, and recycled content may be subject to declaration requirements, however, if they fall under certain Chapter 44 of HTS subcategories of wood and wood products that are listed in the implementation schedule. For example, a painting in a wooden frame may be produced from reclaimed wood and have a paper backing. When products contain plant products whose source is difficult to trace—such as paper, paperboard, and recycled material—APHIS allows "special use designations" that mitigate the burden to trace the source of some materials.

In the original phase-in schedule, APHIS announced that enforcement of the import declaration requirement for paper items (Chapter 48 of HTS) would begin in 2010; however, the Agency removed the requirement for paper items when it revised the implementation schedule in September 2009. While there is no indication that paper items will become subject to declaration requirements in the near future, APHIS has the discretion to impose such a requirement.

Importantly, packaging material is exempt from the Lacey Act's declaration requirement unless the packaging material, itself, is the item being imported, or it is used for some other purpose than supporting, protecting or carrying another item. Packaging materials include wood pallets, cardboard boxes, and packing paper used as cushioning.

Food-Contact Materials and Future Developments

Given the current scope of products that are subject to declaration requirements, it is unlikely that food-contact material producers other than paper manufacturers will be importing the types of products that are currently the subject of declaration requirements (e.g., pulp or wood "in the rough" that is minimally processed). Nevertheless, importers of products that fall under the HTS schedules that are listed in the implementation schedule must submit an APHIS declaration form for each product at time of import, in addition to exercising due care.

Companies in the food packaging manufacturing chain that import only products that fall under HTS classifications that are not listed in the implementation schedule (e.g., paper products falling under Chapter 48 of the HTS) are only obligated to exercise due care to avoid knowingly importing illegal plant-based materials under the Lacey Act, but do not need to submit a declaration form. For example, if a supplier states that 100% of the source material comes from Brazil and is composed of a tree species that is commonly known to be harvested illegally, additional work may be required to ensure that the material complies with Lacey Act requirements.