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Fun Story: According To U.S. Tariff Codes, The X-Men Aren't Human

By Victoria McNally | Miscellaneous | February 17, 2017 |

By Victoria McNally | Miscellaneous | February 17, 2017 |

Earlier today, amidst all the wailing and gnashing of teeth that constitutes a regular news cycle lately, you might have noticed a weird little story going around from International Trade Daily about how snuggies are now officially blankets in the eyes of the United States legal system. That might sound peculiar because of course they are. That’s literally their whole gimmick. It’s blankets with sleeves.

But that didn’t stop the Justice Department from trying to make the argument that they should actually be “robes or priestly vestments.” You see, blankets and robes are taxed differently when imported to the U.S. under current tariff regulations; manufacturers pay about 14.9% duties for apparel, and only 8.5% duties for blankets. The government would clearly prefer to get more money from imported goods, so it was in their best interest at the time to argue that snuggies are actually robes, even though literally no one wears them as such.


If this sounds patently ridiculous, that’s because it is, and it’s always been like this. At best, tariff code doesn’t make a whole lot of sense; at worst, it compels businesses and governments alike to argue against logic, reason, and even their own ideals in order to to save money.

And nowhere has that ever been more apparent than in the case of Toy Biz Inc. vs The United States, in which our government was tasked with the most ridiculous task of all: defending the X-Men from Marvel Comics.

Here’s the short version: In the early 2000s, several employees of ToyBiz (who not only owned all the toy rights for Marvel but saved the comic publisher from bankruptcy in the ’90s) noticed that according to the Harmonized Tariff Schedule at the time, “dolls” were taxed at a higher rate than “toys.” All of Marvel’s action figures were being classified as “dolls,” and if they could convince the government to tax their products as “toys” instead, they could save the company millions of dollars each year.

The problem? The tariff code made this distinction between dolls and toys: dolls must represent “only human beings,” and toys are “animals or other non-human creatures (for example, robots and monsters).” So the people who make Marvel toys had to argue that the heroes in their most popular toy line at the time, the X-Men, were not human. You know, the characters who were literally created as a civil rights metaphor. And the U.S. government had to argue the opposite — that despite whatever superpowers or odd appearances they might possess, the mutants in Marvel’s line-up should be considered human beings. What would Senator Robert Kelly think about this reversal of interests?


The worst part? Toybiz won. While the court acknowledged that many of the X-Men and X-Force characters featured in Toy Boy’s line “manifest human characteristics at various degrees,” sometimes to the point that they are unrecognizable from humans (they cite Longshot as an example of this, I’m not kidding), they should still legally be considered something other than human, specifically because they are classified as mutants. From the final 2003 court decision, as ruled by Judge Judith M. Barzilay of the United States Court of International Trade:

A “mutant” is an “individual (or, formerly, a species or form) which has arisen by or undergone mutation, or which carries a mutant gene (in Science Fiction, usu[ally] an individual with freak or grossly abnormal anatomy, abilities, etc.).” 10 OED at 145- Court No. 96-10-02291 Page 24 46. The first meaning of “mutation” is the “action or process of changing; alteration or change in form or qualities.” Id. at 146-47. Thus, a “mutant” is someone (possibly originally belonging to human species) who has undergone change and become something other than human. Especially, in science fiction, a “mutant” is someone with an extraordinary appearance or abilities, such as the figures at issue here. Since HTSUS subheading 9503.49.00 leaves open the set of those that can be classified as “toys representing animals or non-human creatures (for example, robots and monsters),” it is clear that the intention was to include other categories of non-human creatures that are not necessarily enumerated in the subheading. Thus, to include “mutants” under this subheading is perfectly appropriate.

Oh, but it gets wackier.

I first heard about this lawsuit on an episode of Radiolab a few years ago, and, being curious, decided to see if I could dig into the case a little more. Y’all, Radiolab doesn’t even get into the half of it. ToyBiz didn’t just try to argue that the X-Men weren’t human — they did the same for every single toy in their line, including Spider-Man and Fantastic Four characters. There are several paragraphs devoted to whether or not Mole Man is a human! Spoiler alert: he isn’t! Evidently, the fact that he’s a little troll-looking weirdo who lives underground and hangs out with subterranean creatures means he has forfeited his humanity. (As The Unbeatable Squirrel Girl has recently shown us, he’s also kind of a creep around girls, but that’s neither here nor there.)


But my favorite part of the ruling comes from the Spider-Man section, where the court attempts to determine whether or not Spider-Man, Doctor Octopus, the Green Goblin, Kraven the Hunter, and Kingpin should be classified as “dolls” or “toys.” You guys remember Kingpin, right? The crime lord who’s now mostly synonymous with Daredevil? Vincent D’Onofrio plays him on the Netflix series? According to the court, he’s not human either, and here’s why:
The figure of “Kingpin” resembles a man in a suit carrying a staff. Nothing in the storyline indicates that Kingpin possesses superhuman powers. Yet, Kingpin is known to have exceedingly great strength (however “naturally” achieved) and the figure itself has a large and stout body with a disproportionately small head and disproportionately large hands. As it is, the figure is designed to communicate the legendary and freakish nature of the character. Even though “dolls” can be caricatures of human beings, the court is of the opinion that the freakishness of the figure’s appearance coupled with the fabled “Spider-Man” storyline to which it belongs does not warrant a finding that the figure represents a human being.

Their argument is literally, “Well, technically he’s just a regular dude without any superpowers, but he’s also a giant brick shithouse and people don’t look like that, therefore he isn’t people.” THAT’S IT. THIS IS A REAL OPINION BY A REAL JUDGE.


Of course, now it’s all a moot point, because current tariff code doesn’t make any monetary distinction between dolls and toys — they’re both taxed the same way. But as near as I can tell, the decision was never overturned; Legally, the X-Men are not human*. Of course, someone could always petition the courts to nullify the decision for symbolism’s sake, I suppose — too bad the government’s busy with some, ah, other stuff right now, huh?

H/T to Radiolab and Law and The Multiverse

*As and Law and The Multiverse points out, there was one figure that an earlier 2001 court decision chose to recognize as a “doll” over a “toy” and that, as near as I can tell, wasn’t nullified by later rulings: The Silver Samurai. Good for you, Shin Hamada. You’re a real boy.

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