Many breathed a sigh of relief in the late afternoon of February 3, 2025, when the news broke that President Donald Trump had halted, for 30 days, the imposition of tariffs on a wide range of Canadian products crossing into the United States, and Prime Minister Justin Trudeau likewise announced a delay in implementing retaliatory tariffs on US products. The pause offers a chance to answer a question that had been on the minds of many in the cultural industries, "How would the tariffs affect cultural works or works of creative expression – such as movies, TV shows, books and videogames – that cross the Canada-US border?"
The question is relevant to a diverse set of activities, ranging from books printed in Canada that are shipped to and sold in the United States, to distribution and licence agreements for "Canadian content" films that are going to be streamed or exhibited in the United States.
To answer the question, we need to examine two different tariff regimes: the US regime, which is applicable to products originating in Canada and crossing into the United States, and the Canadian regime, which is applicable to products originating in the United States and crossing into Canada.
To the extent that there is a short answer, it is this: while we can be confident that virtually no cultural works are subject to the first wave of the Canadian tariff regime, there remains uncertainty about whether they will be included in the second wave of Canadian tariffs and whether existing exceptions for "information" will apply to exempt cultural works from the US tariff regime.
US tariffs and Canadian cultural products
On February 1, 2025, Trump issued an executive order1 (the EO) pursuant to emergency powers granted to the President under the International Emergency Economic Powers Act (the IEEPA) that imposed a 25% tariff (in addition to any pre-existing tariffs) on all "articles that are products of Canada" and which are imported from Canada into the United States. The term "products of Canada" is to be defined in a Notice issued by the U.S. Customs and Border Protection and published in the US Federal Register.2 It is important to note, however, the terms of the EO itself indicate that the goods affected by the tariffs "exclude those encompassed by 50 U.S.C. 1702(b)." US Code § 1702 provides the US President with various powers to investigate, regulate, prohibit and seize the property of foreign nationals – but § 1702(b) expressly limits the President's powers with respect to certain types of materials. Among the items shielded from presidential power are "the importation from any country ... whether commercial or otherwise, 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."
While there is some ambiguity about the application of the § 1702(b) language to cultural products (particularly fictional materials), the intent of the exception is to respect US constitutional protections for freedom of speech. Therefore, it would be congruent with that intent to interpret the language as applying to all cultural works, whether fact-based or fictional. In the past, it has included films and broadcast materials, written materials, a software for personal communication – but not all types of software, and not all entertainment. It also traditionally has excluded items developed for a specific audience (e.g., economic reports, market analysis and similar project-based materials), but has included mass-media items on the grounds of free speech. In the current context, a specific challenge is that US Customs typically evaluates imports on the basis of tariff codes alone, rather than the more "use based" exclusions under IEEPA. As such, the inter-agency coordination process to implement these new restrictions may create challenges for compliance.
Canadian tariffs on US cultural products
In response to the EO, Canada announced two waves of retaliatory tariffs: one originally scheduled to take effect on February 4, 2025, targeting goods worth approximately CA$30 billion, and a second, scheduled to take effect twenty-one days later, targeting goods worth approximately CA$125 billion.
The first wave was implemented by means of a February 1, 2025 Order in Council3 scheduled to take effect on February 4, 2025. That Order in Council instituted retaliatory tariffs on "goods that originate in the United States" and which are "classified under any of the tariff items set out in the schedule." Among the extensive list of items included on the schedule,4 the only cultural work included is Tariff Item 9701.91.10, which covers "paintings, drawings and pastels, executed entirely by hand" (but which excludes Tariff Item 49.06, which covers "plans and drawings for architectural, engineering, industrial, commercial, topographical or similar purposes, being originals drawn by hand; handwritten texts; photographic reproductions on sensitized paper and carbon copies of the foregoing). Most cultural works flowing north across the border (other than hand-drawn paintings, drawings and pastels) were thus not included in the list of goods subject to retaliatory tariffs that were set out in the February 1, 2025 Order in Council. The February 1, 2025 Order in Council was repealed on February 3, 2025, in light of the pause on implementing the EO announced by President Trump.5
Because of the US pause on their tariffs, the list of goods which would be subject to the second wave of Canadian tariffs has not yet been published. Therefore, as of February 11, 2025, we do not yet know whether any cultural works will be subject to the second set of tariffs (if they are ever implemented). Canadian importers of cultural goods from the US may wish to urge the Government of Canada to disclose the list of goods targeted by the announced second wave of tariffs to allow for early contingency planning.
Footnotes
2 While a draft notice was released for public inspection on February 3, 2025, the draft was subsequently withdrawn in light of the announced pause in implementation of the tariffs.
3 https://orders-in-council.canada.ca/attachment.php?attach=46660⟨=en
5 https://orders-in-council.canada.ca/attachment.php?attach=46661⟨=en
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