Tariffs and the Art World: What is going on?

Unsurprisingly, lawsuits followed almost immediately.

On 28 May 2025, the US Court of International Trade delivered the first blow, ruling that the president had exceeded his authority under the International Emergency Economic Powers Act of 1977 (“IEEPA”) and “vacating and permanently enjoining” the bulk of the tariff orders.

On 30 August 2025, the U.S. Court of Appeals for the Federal Circuit sided with the Court of International Trade and ruled that Trump did not have the authority to impose these global tariffs.

Now, the case is set to be heard before the Supreme Court on 5 November 2025.

The stakes are high. For many art world professionals, tariffs have become an urgent business concern. With art fairs around the corner and whispers of further rate hikes stirring anxiety, this note aims to cut through the haze: we’ll clarify how these tariffs work, dissect the court’s recent rebuke, consider the next moves President Trump might make, and outline some strategies galleries and collectors could employ to bring art and antiquities into the US without shouldering the full burden of these duties should the tariffs survive.

I. Tariffs and Legal Authority

Tariffs are taxes imposed on imported goods, serving both as revenue sources and tools for trade policy.

In the United States, the Constitution grants Congress the exclusive power to regulate foreign commerce, impose tariffs, and collect revenue[1]. However, Congress has long enacted laws authorizing the President to adjust tariff rates on goods in certain circumstances. Courts have generally upheld these laws when faced with constitutional challenges, holding that they do not impermissibly delegate Congress's legislative power over tariffs to the executive branch.

Several statutes authorize the President or an executive agency to impose tariffs under various circumstances. These include:

1. Section 232 of the Trade Expansion Act of 1962 authorizes the President to adjust the importation of articles that the Secretary of Commerce finds are being imported in such a way as to threaten to impair national security (these tariffs, for now, mainly relate to steel and aluminium).
2. Section 122 of the Trade Act of 1974 directs the President to take measures that may include a temporary tariff of up to 15% when necessary to address "large and serious United States balance-of-payments deficits" or certain other situations that present "fundamental international payments problems. After 150 days, these tariffs would require Congressional approval. Section 122 has never been used.
3. Section 201 of the Trade Act of 1974 authorizes the President to impose tariffs or take certain other actions if the International Trade Commission finds that a surge in imports is causing or threatening serious injury to a U.S. domestic industry.
4. Section 301 of the Trade Act of 1974[2] allows the United States Trade Representative to impose tariffs in response to actions by foreign countries that violate U.S. rights under international trade agreements or that burden or restrict U.S. commerce in "unjustifiable," "unreasonable," or "discriminatory" ways. This provision was used as the legal basis of the tariffs against China in 2018 based on findings that China had engaged in certain conduct relating to forced technology transfers, intellectual property and innovation.
5.  Section 338 of the Tariff Act of 1930 directs the President to impose tariffs on articles produced by, or imported on the vessels of, foreign countries that discriminate against U.S. commerce in certain ways. Section 338 has never been used.
6. The International Emergency Economic Powers Act of 1977 (also known as “IEEPA”). IEEPA does not specifically mention tariffs but gives the President extensive economic powers in case of a national emergency (declared under the National Emergencies Act), including to "regulate" or "prohibit" imports. Under previous administrations, Presidents have invoked IEEPA on many occasions to impose sanctions such as asset freezes and prohibitions on unlicensed transactions directed to foreign countries, entities, and individuals, although no President had used IEEPA to impose tariffs until President Trump.

As is well known at this point, on 2 April 2025 (the so-called “Liberation Day”), President Trump invoked IEEPA to impose a two-tier system of ad valorem “reciprocal” tariffs on all imports:

1. The first tier of 10% affecting all imports as of 5 April 2025;
2. The second tier of additional country-specific rates outlined in Annex 1 of the Executive Order (0% for the UK; 10% for the EU).

President Trump proclaimed a national emergency based on "a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners' economic policies that suppress domestic wages and consumption, as indicated by large and persistent annual U.S. goods trade deficits."

Tier 1 (10%) applied immediately. The second tier of additional tariffs was suspended until 7 August 2025. Most countries managed to negotiate their tariff rates down.

The United Kingdom negotiated a blanket tariff of 10%. The EU 15%.

II.  Appeals on the tariffs: What happens next?

It’s important to note that the decisions issued by the Court of International Trade (28 May 2025) and the Federal Appeals Court (30 August 2025) only affect the IEEPA tariffs. That will be the subject matter of the Supreme Court showdown on 5 November 2025. Sanctions on steel, autos and aluminium are not affected as they are based on a different legal foundation (namely, Section 232 of the Trade Expansion Act of 1962 – see above) which the Trump administration may now be forced to make more use of in pursuit of its tariff campaign.

Many analysts seem to believe that Trump will rely on Section 122 of the Trade Act 1974 in the future as it does not require a formal investigation and could therefore be one of the swiftest ways to get around the court roadblock.  However, Section 122 restricts tariffs to 15% and only lasts for up to 150 days, after which Congressional action is required.

III. Artworks and Tariffs: the Berman Amendment, IEEPA and Chapter 97 of the HTS

Art market insiders can’t help but wonder: if these tariffs stick around, will collectors and art market professionals pay tariffs on paintings and other collectors’ items or will imports into the US grind to a halt? To get to the bottom of this, we need to unpack the so-called “Berman Amendment”.

On 23 August 1988, the Berman Amendment, codified at 50 U.S.C. § 1702, was passed. The Free Trade in Ideas Act further expanded and clarified the scope of the Berman Amendment.

Essentially, the Berman Amendment limits the President's authority under IEEPA by exempting "information or informational materials regardless of their format or medium, or whether they are intended for private or commercial use" from Presidential regulation. This includes, but is not limited to, publications, films, photographs, artworks, and news wire feeds[3].

The intent is to safeguard the free flow of information and protect First Amendment rights. However, the application of this exemption, particularly concerning artworks, has been subject to varying interpretations.

The main issue is the definition of “informational materials” pursuant to the Berman Amendment. What does “artworks” mean under the Berman Amendment? What other “informational materials” are implicitly included in that list which is expressly stated as merely providing examples of “informational material”?

The Harmonized Tariff Schedule (HTS) Chapter 97 covers "Works of Art, Collectors' Pieces and Antiques," with specific headings:

• 9701: Paintings, drawings, and pastels executed entirely by hand.
• 9702: Original engravings, prints, and lithographs.
• 9703: Original sculptures and statuary.
• 9704: Postage or revenue stamps, stamp-postmarks, first-day covers, and the like.
• 9705: Collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archaeological, or numismatic interest.
• 9706: Antiques of an age exceeding one hundred years.

Traditionally, headings 9701, 9702 and 9703 have been deemed “artworks” and thus shielded from Presidential interference. This was the case, for example, with the Cuban embargo. The Bureau of Industry and Security clarified many times that “artwork is considered “informational materials” exempt from [the embargo] if it is classified under Chapter subheadings 9701, 9702, or 9703 of [the HTS]”[4].

Whether headings 9704, 9705 and 9706 can be deemed “informational materials” regardless of the fact that they are not “artworks” in the traditional sense, is not as clear-cut.

In their recent IEEPA FAQ (last modified May 27 2025), the US Customs and Border Protection agency (CBP) affirmed that headings 9704 and 9705 are deemed “informational materials”[5]. Heading 9706 (“Antiques of an age exceeding one hundred years”) however, was not included.

This essentially means that (for the time being and provided that CBP does not amend its guidance), antiques of more than a hundred years old shall be subject to the IEEPA tariffs if they survive.

Collectable items that are less than 100 years old and are not within the scope of Headings 9701 to 9705 inclusive are caught by other Headings, for example, mid-20th century furniture is typically caught by Chapter 94, specifically Heading 9403, which covers “Other furniture and parts thereof.”   These items do not qualify for exemption as “informational materials”, accordingly, they are subject to tariffs at the applicable rate, depending on the country of origin of the item (not the country of export unless the country of export is the same as the country of origin).

If the tariffs are later replaced under another statute, however, the Berman Amendment will not apply and there will be even more uncertainty for the art world. 

IV. Items of furniture: Recent Hikes

The Trump administration already appears to be pivoting toward other statutory authorities to keep its tariff agenda alive.

Just a few weeks ago, the White House issued a Proclamation imposing duties on upholstered furniture and certain kitchen cabinets and vanities, citing Section 232 of the Trade Expansion Act of 1962: the same statute previously used to impose tariffs on steel and aluminium.

According to the Proclamation, upholstered furniture will be tariffed at a rate of 25%, rising to 30% on 1 January 2026; and kitchen and bathroom cabinets will be 25%, increasing to 50% on the same date. For certain countries, these tariffs will apply in addition to other measures (for example, the ongoing anti-dumping duties on wooden cabinets and vanities from China). For others, they will not. More specifically, these Section 232 tariffs will not stack on top of “reciprocal tariffs” or IEEPA duties affecting Brazil, India, Canada and Mexico. 

Imports from the United Kingdom will face a capped duty of 10%, while those from the European Union and Japan will be limited to 15%, proving that there are some benefits to trade diplomacy. The Proclamation also makes clear that other countries may negotiate similar terms to avoid the upcoming tariff hikes.

In an uncommon twist for Section 232 duties, the Proclamation explicitly authorizes the use of duty drawback (see below) for these tariffs, a rare concession that could soften the blow for certain importers, at least those who know how to take advantage of it.

It should be stressed that, given that those tariffs were not adopted under the IEEPA, they fall outside the scope of the Supreme Court’s current review.

V. The UNESCO Florence Agreement

It is worth noting that, traditionally, art and collectable items have been exempt from tariffs.  So much so that in 1950, the international community agreed that tariffs should not apply to art and collectables.

This was recorded in the UNESCO Florence Agreement, created to promote the free circulation of educational, scientific, and cultural materials globally by removing customs duties and economic barriers to their importation.  The Agreement came into force in 1952. Signatory states, including the US, agreed not to impose tariffs on a range of materials (including books, periodicals, educational films, works of art, antiques over 100 years old, and scientific instruments) on the condition that any fees or internal taxes did not exceed those applied to similar domestic products.

The Agreement was implemented into US law by way of Public Law 89-651 (“the Educational, Scientific, and Cultural Materials Importation Act of 1966”). Whilst most of Public Law 89-651 has been hollowed out by subsequent tariff policy, its spirit lives on and the Florence Agreement remains binding.

In line with the Florence Agreement, the General Act on Trade and Tariffs 1994 (or “GATT 1994”) bound the relevant tariff lines (i.e. Chapter 97 lines) to zero. This includes heading 9706 (“Antiques of an age exceeding one hundred years”). An argument could, therefore, be made that tariffs on antiques more than a hundred years old violate the Florence Agreement and the GATT 1994.

The US has withdrawn from UNESCO, however, it continues to act as a party to UNESCO conventions it has individually ratified, maintaining treaty obligations on cultural heritage, education, and scientific cooperation unless it takes explicit steps to withdraw from each one.

VI. Temporary Import Schemes

Arguments aside, for now, the US authorities have taken the view of excluding 9706 antiques from their zero-rate imports. So, say you have an antique and wish to exhibit it at an American fair with the view of potentially selling the piece and turning a profit. How would you go about that?

The United States lacks a straightforward and effective temporary admission scheme akin to those in the EU or UK. There are certain mechanisms that allow for temporary admission; however, they do not appear well-suited to the peculiar dynamics of the art market.

These shall be analysed in turn.

1. The “Duty and Tax Drawback” Program

Duty drawback is a program with U.S. Customs and Border Protection (CBP) that allows for the refund of up to 99% of customs duties, taxes and fees that were paid at time of importation.

This mechanism may suit larger companies with ample liquidity, but it poses substantial cash-flow challenges for smaller firms. Indeed, importers are required to front all applicable import taxes, tariffs and duties, and refunds are typically issued months after providing evidence of re-export from the US, effectively turning the process into a long-term financial outlay.

Moreover, participation is far from straightforward. Applicants must submit extensive documentation, and approval is not guaranteed. CBP has long maintained that drawback is a privilege, not a right. Given the bureaucratic complexity and uncertainty regarding approval, engaging an experienced customs broker is essential. A customs broker typically costs around 1,000 to 2,000 USD in fees per shipment, adding yet another expense for importers.

2. ATA Carnets

ATA carnets offer a mechanism for the temporary admission of goods into the United States without the immediate payment of import duties, provided the items are not sold while in the country.

If a sale does occur (for example, during a fair) the item must be exported out of the U.S. and subsequently re-imported under a standard customs declaration, with duties then assessed and paid. Further, there is the risk of penalties because the sale of items under ATA is prohibited.  As a result, ATA carnets are impractical for commercial art fair settings where the sale of works is the primary objective.

3. Temporary Importation under Bond (TIB)

A Temporary Importation under Bond (TIB) is a temporary importation of goods under bond, not imported for sale or sale on approval, without payment of duty with the intent to export the goods within a certain period of time not to exceed three years from the date of importation.

The bond typically equates to an amount equal to two times the estimated duties, including fees, determined at the time of entry.

Similar to the ATA carnet system, a temporary bond does not allow items to be sold and retained within the US. A sale can occur only after the item has been re-exported, then it can be sold, and only then can it be re-imported as a permanent entry in the US, rendering this option largely unworkable for commercial art fairs.

4. Freeports

A Freeport is a special customs status where art and valuable items can be stored without incurring import duties. These sites are typically managed by specialised logistics companies that operate under the supervision of national customs authorities. Commonly referred to as "Freeport warehouses" or simply "Freeports," these facilities are governed by stringent rules. Customs officials maintain the right to conduct inspections and demand detailed inventory records at any moment.

While artworks housed in these spaces can be restored, displayed, photographed, or even sold within the premises, they cannot be taken out temporarily; not even for a brief period. If an artwork needs to be moved elsewhere, it must first undergo an official import process, either on a temporary or permanent basis.

This renders freeports essentially useless for commercial art fairs as a bond, carnet or drawback would still need to be applied for to move it out of the freeport.

Conclusion

We must now await the decision of the US Supreme Court.  It will hear oral arguments on the challenge to Trump’s tariffs on 5 November 2025. A decision is typically expected within 2 to 6 months after arguments, with most Supreme Court rulings issued before the end of the Court’s term in late June 2026. There has been no official expedited timeline announced for an early decision, so observers anticipate the judgment will likely be handed down between February and June 2026, barring any extraordinary circumstances.