NYS Ivory Ban Overturned as Antique Dealers Win Federal Court Case

In a significant development for antique dealers, the 2nd U.S. Circuit Court of Appeals overturned a critical section of a New York statute that imposed stringent restrictions on the sale and display of ivory and rhinoceros horns.

The 2014 New York law was enacted under former Governor Andrew Cuomo and combats the illegal ivory trade. While the federal Endangered Species Act permits the sale of antique ivory or items containing less than 50% ivory, New York’s legislation limited this to items with less than 20% ivory, subjecting violators to substantial fines. This law effectively banned the sale of antique ivory items over 100 years old, even if they complied with federal regulations.¹

Antique dealers challenged the law and were represented by the Art and Antique Dealers League of America (AADLA) and the National Antique and Art Dealers Association of America (NAADAA). They argued that it violated their First Amendment rights by restricting commercial speech. The court ruled that the law was broader than necessary to curb illegal ivory sales and placed an excessive burden on lawful commercial activities.

Other antique dealers not involved in the case largely support the ruling. However, lawmakers are encouraging additional dialogue on how to protect endangered species without unduly burdening legitimate commerce. The New York Department of Environmental Conservation, responsible for enforcing the ivory law, is reviewing the court’s decision.

Under current federal regulations, the sale of ivory items is subject to specific conditions to ensure compliance with conservation laws. Here’s a brief overview:

• Sellers must provide documentation proving the item’s age and the legality of its importation or manufacture. This may include provenance records, importation documents, or other verifiable evidence.
• Items must be at least 100 years old and meet the criteria of the Endangered Species Act (ESA) antiques exemption. This includes demonstrating that the item was legally imported into the U.S. before 1982 or after 1982 through one of the 13 designated ports for antiques.
• For items not qualifying as antiques, the de minimis exception allows for the sale of items containing a small amount of ivory. To qualify, the item must contain less than 200 grams of ivory, be less than 50% ivory by volume, and have been manufactured before July 6, 2016. Additionally, the ivory must be a fixed or integral component of a larger manufactured item and not the primary source of the item’s value.²