Lacey Act Due Care: What It Means in Practice

What Does ‘Due Care’ Actually Mean Under the Lacey Act?

The USDA’s Animal and Plant Health Inspection Service (APHIS) defines due care as “the degree of care which a reasonably prudent person would take under the same or similar circumstances.” This is a helpful starting point, but it doesn’t offer a checklist to follow.

Due care is a moving target. It is shaped by enforcement outcomes and court-mandated compliance plans, and no certification scheme enables automatic compliance. Importantly, Lacey Act requirements also scale with risk. A low-value shipment from a well-documented supplier in a stable sourcing country has a different obligation than high-value timber products sourced through multi-tier chains in higher-risk regions. This means that you must understand the risk profile of your specific supply chain.

For a full overview of who the Lacey Act applies to and the enforcement environment in which it operates, visit our Lacey Act Compliance Centre.

The Due Care Scale: Low Risk vs High Risk Shipments

Several factors determine where a product may sit on the risk scale.

1. Species

CITES-listed, commercially sensitive, difficult to identify, and enforcement-focused species carry much higher scrutiny. If you cannot identify and justify the species, that uncertainty is a risk indicator that warrants further investigation.

2. Country of harvest

Countries that have weaker governance or documented instances of illegal logging are deemed high-risk sourcing origins. Tools that provide country-level risk scoring, such as the WWF Wood Risk Tool or Forest Trends ILAT Risk Data Tool, can help identify higher-risk sourcing origins.

3. Supply chain complexity

The more parties and intermediaries between your source and your facility, the more difficult it is to verify what you are actually purchasing. Multi-tier chains from high-risk regions are typically deemed to represent the highest risk profile.

4. Value

Higher-value shipments may call for greater scrutiny, particularly where they involve sensitive species, high-risk origins or complex intermediary chains. Enforcement actions do not only target commodity timber imports, but high-value finished goods too. Lacey Act compliant practices apply across product categories and price points.

5. Other trade considerations

If the product or sourcing country is exposed to other trade regulations, such as tariffs or sanctions, it raises its exposure to Lacey Act enforcement. If your supply chain involves products or origins that are already being scrutinized, you must apply greater due care efforts.

What Does Not Count as Due Care?

Three key considerations are as follows:

1. Supplier word

Trusting your supplier’s word is not due care. If the information they give you turns out to be incorrect, the question remains whether a reasonably prudent person in your position would have verified it.

2. Third-party certification

Third-party certification is not enough to be Lacey Act compliant. Certification does not automatically provide the species and country of harvest data that is required. No certification scheme constitutes product traceability or legality to a degree that demonstrates Due Care was performed.

3. Choosing not to investigate

Not investigating red flags that come up is in direct contradiction with the definition of due care. There have been enforcement cases resulting in convictions and financial penalties which arose from company failure to act on risks it identified. In enforcement terms, choosing not to investigate known red flags can be treated much like actual knowledge.

What Does Count as Due Care: The Evidence Standard

Due care must be documented, proportionate to risk and applied consistently. Beginning with the Gibson Guitar compliance programme that followed the DOJ’s first major Lacey Act timber enforcement action, mandated compliance programs have provided a clearer articulation of what documented due care may look like. They included requirements such as:

• Communicating with suppliers to identify challenges in meeting compliance requirements
• Determining wood origin through supplier discussions
• Conducting independent research on risky sources
• Requesting sample documentation to assess validity
• Making a legality determination before purchasing
• Declining to purchase where illegality could not be ruled out

More recent enforcement outcomes have required more for high-risk supply chains, such as risk-tiered supplier assessment and in-person audits at supplier premises. While not a formal regulatory standard, these requirements reflect what prosecutors have expected in serious enforcement cases. They can be treated as a practical indication of current expectations for Lacey Act due care.

Building Due Care Into Your Procurement Process: A Practical Summary

What does being Lacey Act compliant look like for procurement in practical terms?

1. Assess risk first

For every supply chain, you must assess species risk, country of harvest risk and chain complexity. Ensure you document your reasoning.

2. Know your suppliers

Collect legality documentation that demonstrates traceability and legality across the entire supply chain. For high-risk suppliers, on-site validation confirms what paperwork cannot.

3. Document at purchase order level

Records must show what was verified, by whom and on what basis, for every shipment. Ensure you maintain those records for a minimum of five years.

4. Cascade requirements to your suppliers

Your supply chain’s compliance directly impacts yours. Suppliers that cannot provide credible documentation for species and origin or demonstrate their own upstream due care actions are a risk that warrants action.

5. Review regularly

Due care is not a one-time exercise. Ensure you review your supply chain as a matter of routine.