Importers of plants and plant products have good reason to be concerned about running afoul of the Lacey Act given the uncertainty created by 2008 amendments making violations of foreign law regarding plants a basis for violations under the Act. The recent saga of the Gibson Guitar Corp., maker of the iconic Les Paul guitar, has only confirmed that such concern is well-founded. As Gibson’s case exemplifies, the Department of Justice (“DOJ”) can disagree with foreign officials to rely on its own interpretation of foreign law to seize and seek forfeiture of goods, and even bring criminal charges.

The Lacey Act, 16 U.S.C. section 3371-3378, passed in 1900 in response to growing concern about interstate profiteering in illegally taken game, i.e., poaching, has long been recognized as the United States’ first and most comprehensive federal wildlife protection law. The Act was amended by the 2008 Farm Bill (the Food, Conservation, and Energy Act of 2008) for the purpose of combating illegal logging and expanding anti-trafficking protections to a broader array of plants and plant products brought into the United States, either directly or through manufactured products.