In my previous post, I noted an aspect of Trump’s tariffs that has received little to no media attention: the evident exemption for books and other publications, including graphic novels, comics, and manga. Today we’ll take a more detailed look at this exemption, which we have in large part because of books bans in the 1980s, back when the CBLDF was founded.
The Trump Reciprocal Tariffs
Before we go into exemptions, let’s take a moment to review where the new reciprocal tariffs fit into the larger tariff landscape.
A tariff is essentially a tax on imports or exports. Although the Constitution gives Congress the authority to impose tariffs, it has delegated to the President certain tariff-making and rate-setting powers. For example, international trade agreements can establish a tariff framework for a particular country or region, and Section 301 of the Trade Act of 1974 (24 United States Code § 2411), the administration can impose tariffs for violating a trade agreement. President Trump imposed Section 301 tariffs on China in his first term, including tariffs that had an impact on graphic novels, comics, and other books.
Tariff rates are set on an item-by-item basis according to categories set forth in the Harmonized Tariff Schedule. An item’s category can make the difference between an exemption or a tariff owed; there is similar incentive to try to get your product in a category with a lower rate. This is why importers have sought confirmation that their products fit within preferred categories, such as the rulings that adult graphic novels and children’s comics fall under HTS categories 49019900 and 49030000.
Last week, the Trump administration issued an executive order imposing reciprocal tariffs on the majority of countries worldwide. The stated authority for this action was a statute commonly referred to as IEEPA, the International Emergency Economic Powers Act, 50 U.S.C. § 1702. This same law is often invoked when presidents impose a trade embargo, such as the sanctions prohibiting trade with Russia in response to the invasion of Ukraine.
Instead of a trade embargo, last week’s EO imposed two levels of ad valorem duties. In the tariff context, a duty is a tax on imported goods. Ad valorem refers to how the tax on is calculated, namely, as a percentage of the goods’ value rather than, say, a fixed price per item. The first level of the Trump reciprocal tariffs is a 10% duty on all imports from all U.S. trade partners, except for the imports and partners subject to an exemption. The second level consists of a country-specific ad valorem duty percentage calculated on the basis of a country’s trade deficit with the U.S.
As many have noted, these reciprocal tariffs could have a substantial impact on comics retailers, publishers, distributors, merchandise licensees, and others in the industry. T-shirts, toys, games, collectibles – product-specific trade groups such as GAMA (for games) and the Toy Association have called attention to what these tariffs could mean for a variety of items stocked in today’s comic shops.
But what about comics themselves?
The Publications Exemption
The president’s authority under IEEPA is not absolute. As the EO itself notes, in accordance with IEEPA the EO’s new 10% and country-specific ad valorem duties shall not apply to “all articles that are encompassed by 50 U.S.C. 1702(b).”
The EO’ Annex II provides a long list of such articles and their respective HTS categories, but for our purposes the most significant are those originating in Section 1702(b)(3), which provides that the president has no IEEPA authority over the import or export “regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds.” Accordingly, note the following screenshot from the EO’s Annex II, a list of reciprocal tariff-exempt categories that I also included in my previous post:
The above categories arguably encompass the broad spectrum of comics publications, such as graphic novels, comic books, mini-comics, and manga. These publications would not have an automatic exemption from tariffs imposed on the basis of other statutes, but they would be untouchable for tariffs imposed by the President through the emergency authority granted by IEEPA.
Looking at the specific language of Section 1702(b)(3), you might be wondering whether the statute’s reference to “information or informational material” restricts the tariff exemption to nonprofit works. The answer to this question lies in the historical link between IEEPA’s enactment and cross-border book bans.
The Book Ban Connection
Generally, the First Amendment does not give publications an automatic exemption from tariffs. Trump’s first-term Section 301 tariffs imposed on China exemplified this: while these Section 301 tariffs carved out an exemption for Bibles and other religious texts, they did not establish a comprehensive exemption for books.
However, IEEPA’s exemption for publications and other informational material regardless of format or medium was expressly created to exempt constitutionally protected free expression. As noted by the House Conference report on the 1994 revision of the original 1988 Act, Congress enacted Section 1702(b)(3) to prevent the President from imposing any restriction, “directly or indirectly,” on “the import or export of information that is protected under the First Amendment of the U.S. Constitution.” The inciting incident was President Reagan’s mid-1980s embargo of Cuba, which banned the unlicensed importation of printed material by mail or in person. The impact of this embargo went beyond political propaganda; the government seized novels, newspapers, magazines, and other material sent to ordinary people from their home country.
In response to public outcry from free speech groups and politically influential Cuban immigrant communities, President Reagan ultimately revised his printed materials embargo and signed the bill establishing the Section 1702(b)(3) exemption. Nonetheless, subsequent administrations interpreted the scope of this limit on presidential authority narrowly in order to impose restrictions on material imported from other disfavored countries, which led Congress in 1994 to expand the statute’s original language to its current version in order to make clear that the exemption was “explicitly intended … to have a broad scope.” The goal: to facilitate the flow of constitutionally protected material “without regard to the type of information, its format, or means of transmission.”
President Trump, in his first term, once again tried to narrow the scope of the Section 1702(b)(3) exemption, only to meet sharp resistance in court. The target in that instance was TikTok, which he tried to ban through an executive order based on the authority under IEEPA to take emergency action. The Trump TikTok ban was instead ruled to have no valid legal basis, since Section 1702(b)(3) was designed to exempt all informational material protected by the First Amendment regardless of the communications medium or the kind of information being expressed. (See, e.g., Marland v. Trump, 498 F.Supp.3d 624 (E.D. Pa., 2020).)
The judicial rebuff of Trump’s previous attempt to use IEEPA authority to curb the flow of expressive material into the U.S. through TikTok was doubtless a factor in the decision to recognize Section 1702(b) exemptions – including the publications exemption – in last week’s reciprocal tariff E.O. We would not have that protection, though, without a previous generation’s rejection of earlier cross-border bans.
Protecting Comics from the New Reciprocal Tariffs
The new Trump reciprocal tariffs are just a few days old, and there is naturally a fair degree of uncertainty as to their precise scope. I understand that some tariff invoices have been sent for imported graphic novels, but there are also indications that these might be retracted due to the Section 1702(b)(3) exemption.
Based on all of the case law, regulatory material, customs decisions, and commentary that I have researched since the EO was first released, I am personally convinced that graphic novels, comic books, manga, and other comics-related publications should be exempt. Of course, this post is not legal advice, and you should certainly seek the advice of counsel with regard to your specific situation. If there are any attorneys, customs experts, or government officials who have a different perspective on the scope of the IEEPA exemption, I would love to hear from them.
Likewise, if anyone encounters customs officials or shippers who do end up trying to collect tariffs on imported comics, please feel free to let me know – you can email me directly at jeff.trexler@cbldf.org. Given the express references to the First Amendment in the enactment and judicial interpretation of the publications exemption in Section 1702(b)(3), my sense is that the imposition of tariffs on imported comics raises constitutional concerns analogous to the landmark Paul Mavrides California sales tax on original art case back in the 1990s, which, as it happens, was my first direct contact with the CBLDF!
UPDATE: I spoke with a Customs official about graphic novels and the reciprocal tariff exemption. They weren’t yet familiar with the details of the exemption (!) but agreed that the analysis seemed right. The rule of law at work!