The Art and Antique Dealers League of America and The National Antique and Art Dealers Association of America (represented by McLaughlin & Stern) have brought a lawsuit claiming New York’s regulations are unconstitutional and impose an “incidental burden on commercial speech”.
The ivory rules in New York are stricter than those set by the 2016 Endangered Species Act that applies across the US.
While the federal government permits the sale of ivory antiques within and across states, in New York almost any form of trade is difficult. Essentially, antiques (comprising less than 20% ivory and more than 100 years old) need a licence to be sold.
Dealers can sell to buyers from outside the state (with a licence) but displaying the antiques is severely restricted.
Sale by photograph
This has led to the curious situation where dealers in the Big Apple continue to offer ivory items for sale to out-ofstate visitors but only via photographs alongside the disclaimer that the objects are “not for sale in New York”.
The main thrust of the appeal is the prohibition of the display of commercial ivory objects. Dealers argue that the right to sell the items (as allowed under federal law) and to display the actual items with that same disclaimer should be allowed under the First Amendment.
The defence has argued that the US Endangered Species Act created a basis for the law but that individual states can enact more stringent measures as they see fit. The outcome of the appeal will be decided by Judge Sullivan, Judge Leval and Judge Pérez but no timescale was given.
The European Union and the UK have separately implemented new laws on the trade of antiques containing ivory.
