Subtle differences have been identified between the new law as written in the Federal Register and the provisional laws that have been in effect since 2014.
While the July 6 statute provides only narrow exceptions for objects more than 100 years old – and demands for paperwork remain a major issue – it permits both intrastate commerce and the trade across state lines of newer objects that contain only a small amount of worked ivory.
New York dealer Scott Defri, of the European Decorative Arts Company in New York, spokesman for Art and Antique Dealers League of America on the ivory issue, says he was surprised to see the ‘final rule’ explicitly permit intrastate commerce (sales within a state).
He said this “potentially presents a major conflict with the legislation passed by states such as New York, New Jersey and California under the Supremacy Clause of the Constitution. This says that federal laws constitute the supreme law of the land and take precedence over any conflicting issues of law passed on a state level”.
Defrin, a specialist in European ivory carvings from the 17th to the 19th centuries, believes state and federal laws are now effectively in contradiction. He says the ongoing case in California – a test of whether state laws can be used to tackle an issue focused way beyond its borders – is key.
“If that law is overturned then others could fall,” he says.
Key Exceptions
Another unexpected addition to the ivory law is the so-called de minimis exception that allows the trade within the US of items of less than 100 years old where ivory forms only part of a larger object. This potentially would allow the sale of many pieces from the Art Deco period such as bronze and ivory figures or ivory inlaid furniture.
Nonetheless, the need to demonstrate, via a CITEs permit, that ivory of any age was legally imported into the US remains highly problematic. Defrin says nine out of ten items have no paperwork and have become ‘orphans’.
“Even though the antiques exemption is still in place, the burden on the owner to prove that the object has been in the US since before 1982, or legally imported thereafter with a CITES permit, will in most cases be an insurmountable hurdle for most individuals, thus rendering most antiques valueless as a result.”
This aspect of the law is being challenged by an act introduced to Congress in July 2015.
US ivory ‘final rule’: what you need to know
