In 2022, the UK introduced an almost total ban on trading in ivory.
The ban currently defines ivory as "elephant ivory" but is set to be expanded to include ivory from other species. Under the forthcoming Ivory Act 2018 (Meaning of "Ivory" and Miscellaneous Amendments) Regulations 2024, the ban will extend to other ivory-bearing species (namely hippopotamuses, killer whales, narwhals, and sperm whales). Although the regulations have yet to come into force, collectors, dealers, and owners of items containing ivory from these species should prepare for the same stringent restrictions that already apply to elephant ivory, ensuring that their historical and artistic objects comply with the new rules.
This blog has two objectives. First, we address the breadth of the ivory ban. In a nutshell, anyone who from the UK deals in ivory even if the ivory is outside the UK, commits an offence. Secondly, we describe the scope of the new regulations.
The current ban is wide and covers the sale and loan (other than to an accredited museum) of ivory both inside and outside the UK. Arranging the sale or loan in breach of the ban is also prohibited, giving rise to unexpected consequences.The additional offence of "facilitating" a breach of the ban could extend to persons not directly involved in the transaction who simply make it possible for the transaction to occur (see below).
Whilst the ban covers the purchase of ivory in the UK, it is not illegal to buy ivory objects outside the UK or to own, bequeath or gift such objects in the UK. However, unless such objects are exempt, they cannot subsequently be sold once in the UK – whether in the UK or by exporting them to another country first.
This blog does not address compliance with CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) which applies in most countries worldwide separately, and in addition to, the UK ban on ivory.
Summary of the restrictions in the Ivory Act
Offence of Dealing (including Arranging)
The Ivory Act prohibits dealing in ivory. Dealing includes selling, buying, hiring, offering or arranging to do the same, keeping for sale, importing to or exporting from the UK with the intention to sell or hire.
The Ivory Act expressly prohibits arranging to sell or hire ivory even when the transaction takes place outside of the UK. By contrast, offering or arranging to purchase or borrow ivory outside the UK is permitted though the transaction itself must occur outside the UK.
The Ivory Act has a wide application and will apply to anyone within the UK, even non-residents who are simply visiting the UK temporarily. This includes collectors, shippers, art advisors, lawyers, art dealers and anyone involved in the arrangement of a sale /private loan or advertisement of the same, even if the actual transaction takes place outside the UK.
Ultimately this means that collectors and dealers can continue to buy ivory objects outside the UK (provided it is legal to do so in the country of acquisition and all steps in the transaction occur overseas) and should be permitted to import them into the UK provided the objects comply with CITES. However, once an ivory object is in the UK, it will not be possible to sell it or export it for sale later down the line unless the item is exempt (see below).
The "Arranging" Element of the Prohibition
The Ivory Act specifically prohibits arranging or offering to sell or loan (other than to an accredited public museum) an ivory object that is outside the UK (where the act of arranging or offering takes place within the UK), although arranging to buy outside the UK is permitted.
The effect of this restriction is wide and covers all forms of communication such as:
- Sending details of an item for sale that is outside the UK when the sender is in the UK (e.g. a London gallery sends emails about an art fair in France where it intends to exhibit, and the list of items for sale includes items containing ivory). It does not matter if those items are not kept in the UK or that the emails do not specifically discuss the ivory objects. By sending the emails, the London gallery could commit the offence of "facilitating a sale outside the UK";
- Discussing the commercial terms of a potential sale whilst in the UK could constitute an offence e.g.:
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- A member of staff of a London auction house briefs his team in the UK on a sale taking place in the auction rooms of the auction house outside the UK which they will need to attend and at which ivory objects will be sold. This could amount to facilitating the sale of ivory outside the UK; or
- An employee of a French auction house answers calls or emails about his upcoming Paris sale (which includes ivory objects) whilst he is visiting London for the day.
- Advertising ivory items for sale in the UK even if the items are outside of the UK, e.g. sending or making available a catalogue of items for sale which contain ivory (including making your gallery or auction website available in the UK if ivory is displayed for sale on the website). It does not matter if the items are being sold by a non-UK entity or if the items are outside the UK, they will probably be considered to be advertised in the UK if the advertisement is available in the UK. Geo-blocking is advisable for any websites referring to sales of ivory objects.
Offence of "Facilitating" a Breach
Under the Ivory Act, it is also an offence to facilitate a breach, extending to those who may facilitate a transaction such as shippers, lawyers and art advisors if they help make the transaction possible whilst they are in the UK. It could also extend to sales platforms and publishers that print sales catalogues if the offence is interpreted broadly.
UK based persons dealing, arranging or facilitating a transaction will be permitted to do so when they are outside the UK (provide all arrangements to assist are also outside the UK) but this is probably unworkable in practice as even responding to an email or phone call or having an internal discussion once back in the UK could be deemed "arranging" from the UK.
Exemptions
The Ivory Act is, in essence, a near total ban with five narrow exemptions:
- Pre-1918 "Outstandingly Valuable and Important" Exemption: ivory objects assessed by recognised specialists to be of 'outstandingly high artistic, cultural or historical value'. These must be the rarest of their type and so the threshold is expected to be very high. The Government anticipates a very small number of objects will meet these criteria (figures cited in the House of Commons Committee stage of the debate suggested 75-150 per year).
- Pre-1918 Portrait Miniatures Exemption: a portrait miniature is a small portrait painted on a thin sheet of ivory, with less than a 320cm2 ivory content by surface area. These portraits were very popular in the Georgian era, mainly with soldiers, to allow the image of a loved one to survive the perils of war.
- Pre-1947 De Minimis Exemption: worked ivory objects produced before 1947 that contain less than 10% ivory by total volume AND where the ivory is integral to the object (i.e. the ivory cannot easily be removed without damage to the object).
- Pre-1975 Musical Instruments Exemption produced before 1975 that contain less than 20% ivory by volume (such as the keys of a piano).
- Museum Exemption (this exemption does not have a cut-off date like the other exemptions): Sales, loans and exchanges by individuals and companies to accredited museums and between accredited museums. This will not include sales, loans and exchanges to and from private museums that are not accredited by the relevant institutions (i.e. ICOM, Arts Council England or the equivalent in the relevant country).
Registration Requirements to Qualify for an Exemption 2, 3 & 4
A mandatory registration system is operated by APHA (the Animal and Plant Health Agency) for all transactions involving ivory objects that are exempt under exemptions 2, 3 and 4 above. Owners intending to sell will have to register their item, provide an explanation supporting their claim that it falls within an exemption and pay a fee. An ivory object will then receive a unique registration number. If APHA believes the item does not meet the exemption criteria, the registration will be cancelled or revoked. Both the seller and the buyer will have legal responsibility for ensuring the sale is compliant with the legislation.
Application for an Exemption for "Outstanding" Items
The process is different for the 'outstanding' exemption (point 1 above). You must apply for an exemption. APHA will refer the application to an expert assessor at a prescribed institution (such as the V&A and the Ashmolean Museum). If the ivory object is deemed to meet the 'outstanding' criteria, the ivory object will receive an exemption certificate which will operate as a passport allowing future dealing (provided that the seller notifies APHA of its intention to sell or hire out the certified item). This fee is higher than the normal registration fee for an exemption under exemptions 2, 3 and 4.
Penalties
The Ivory Act carries criminal penalties for violations of the restrictions, with the potential for a maximum conviction of up to 5 years and/or a fine of up to GBP 250,000. Any relevant object will be seized and forfeited.
Impact of New Regulations
Once the Ivory Act 2018 (Meaning of "Ivory" and Miscellaneous Amendments) Regulations 2024 become law, the ivory ban will apply to ivory from species beyond elephants, namely hippopotamus, killer whale, narwhal, and sperm whale. Although are still in draft form, the Regulations are expected to come into force by 2025 (having missed the initial deadline set at the 1 September 2024). This expansion means that a variety of artworks and antiques will soon fall under the same restrictions as elephant ivory.
Hippopotamus ivory
Hippo ivory is dense and highly durable, making it ideal for fine carving and certain utilitarian applications. Objects containing hippo ivory include knife handles, weapons, combs and hair ornaments.
Killer whale and sperm whale ivory
Killer whale ivory held special significance, particularly among coastal Native American and Inuit communities. Scrimshaw Art, a type of detailed engraving or carving on ivory or bone, was practiced using killer whale ivory. Scrimshaw artists would engrave scenes of whaling, wildlife, or nautical life into the surface of the ivory, often inlaid with ink or pigment.
Narwhal ivory
Royalty and nobility in Europe prized narwhal tusks as symbols of power and status. These tusks were fashioned into ceremonial sceptres or staffs, which were thought to have mystical properties due to the belief that they came from the legendary unicorn. In the 17th and 18th centuries, narwhal tusks were carved into walking canes for wealthy individuals. These canes often featured intricate handles or embellishments made from gold or silver, making them luxury items. In Europe, during the Renaissance and later, narwhal tusks were used to create or embellish drinking vessels, such as goblets or cups. These vessels were often highly decorative, with engravings or metal accents, and were used in ceremonial contexts or by nobility.
Chess pieces and jewellery may also contain these different types of ivory.
For those wishing to sell or export such items, time is running short. Once the Ivory Act 2018 (Meaning of "Ivory" and Miscellaneous Amendments) Regulations 2024 becomes law (no date has been set as yet), the ivory ban shall apply to those species.
If items containing those species are exported from the UK, they will require a CITES export license from the UK and a CITES import license in the destination country. Furthermore, depending on the age and value of the item, an Arts Council license may also be needed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
