Sunday, December 24, 2017

Is a Santa Suit Apparel?

It is Christmas Eve as I write this while on my way to warmer climes. This short vacation is a good opportunity to catch up on court decisions and blog posts. The fact that it is Christmas makes a discussion, however brief, of Rubies Costume Co. v. United States timely.

This particular Rubies case involves a Santa jacket and pants. Apparently, it is a particularly well-made Santa costume. Among other characteristics, it features a zippered jacket with lining and finished sleeve cuffs. The pant legs are unfinished, but are designed to be tucked into black shoe covers, meaning they do not show. The costume sells for about $100 and includes a fabric-care label specifying that it be dry cleaned. I think this is an image of the item in question:


We have been over some of this ground in previous posts. See here and here for example. The basic question is whether these garments are wearing apparel of Chapter 61 of the HTSUS or whether they are festive articles of Chapter 95. There is also a question of whether Santa’s toy sack is similar to a travel bag of Heading 4202.
I have repeatedly proposed a bright-line for these cases. For some reason, no one listens. I say if we want to know whether something is closely associated with Christmas so as to qualify as a duty-free article of Chapter 95 all we need to do is show it to a rabbi. If the rabbi takes one look at it and says. “I would never have that in my home,” then it is a Christmas (or possibly Easter) festive article. But, I digress.

To take a step back, we need to understand that certain garments are excluded from classification as wearing apparel in Chapter 61. Section XI, Note 1(t) excludes articles of Chapter 95, which includes festive articles. Plaintiff Rubies’ contention is that the Santa costume is a festive article. The problem for Rubies is that Chapter 95, Note1(e) excludes “fancy dress,” of textiles, of chapters 61 or 62. Consequently, if the Santa costume is also “fancy dress” then the Santa costume is not an article of Chapter 95 and is, therefore, not excluded from Chapter 61.
The Court of Appeals for the Federal Circuit has previously addressed the question of whether costumes are “fancy dress.” That case involved what I believe to be the sort of flimsy Halloween costumes I recall from my youth. These were the ones that came in a box from the local pharmacy or convenience store with a clear plastic window allowing the buyer to see the plastic mask of Casper the Ghost or Superman, for example. Inside the box, we would find a flimsy onesie with an opening in the back that tied at the neck. The costume part was adorned with a printed motif matching the mask. Without fail, for me at least, the masks were unwearable either because the elastic strap holding them in place would break almost immediately or it was impossible to see, breathe, or both. These were “flimsy” in all senses of the word. 


On appeal, the Federal Circuit held that “fancy dress” includes “a costume (as for a masquerade or party) departing from conventional style and [usually] representing a fictional or historical character.” However, for fancy dress to be excluded from Chapter 95, it must be “of textiles, of chapters 61 or 62.” Consequently, according to the Court, the fancy dress must also be “wearing apparel.” To be wearing apparel, the garment must be of the kind ordinarily worn as “clothes or coverings for the human body worn for decency or comfort.” From that, the Court determined that a costume is a festive article when it is a flimsy, non-durable item having utility and use associated with the festive occasion. Compared to a standard garment, it will have functional or structural deficiencies. Festive costumes will have a significant element of “make believe” or “festive value” and only incidentally afford coverage for decency and comfort.
Here, the Santa jacket has a zipper closure and long sleeves with a turned edge. The jacket is durable and intended for repeated wearing and cleaning. This is a non-flimsy garment. The pants too, although they have an elastic waist and unfinished leg bottoms. This, according to the Court, makes them durable garments that can be ordinarily worn even if infrequently. That means the Santa suit is fancy dress and that excludes it from classification in Chapter 95 as festive articles.

I can’t pick at the legal analysis. It seems to closely follow the guidance from the Court of Appeals and gives meaning to the entirety of the legal text. I just subjectively hate the outcome.
What is more festive than a Santa suit? I would posit, very few things. What is more closely associated, at least in the U.S., with Christmas than Santa? Probably nothing. How likely are you to see a person in a Santa suit between January 1 and November 1? Not very likely. If you are anything like me, if you happen to see a Santa roaming the mall or streets in July, your initial reaction is to scream internally, “Hey Buster, Christmas is in five months!” Walking around in a Santa suit in the summer is a fugitive use of it. Why? Because a Santa suit is not really apparel. Rather it is a commercial or artistic rendering of a character associated with a specific festive event. For the sake of young readers stumbling on this page, I will not opine on whether the Santa character is fictional or historical or actual. Either way, the clothing turns the wearer into a specific representation of a character who is associated with a specific holiday. To me, that is not wearing clothes in the ordinary sense.
The problem with my own analysis is that half the people in Chicago on any given day are wearing some article of clothing that communicates their affiliation with the Cubs, Sox, Bull, or Bears. In my house, there is even apparel emblazoned with the logo of the Chicago Wildfire, our local professional Ultimate team. Wearing these, even a full-on Bears uniform with pads and helmet, however, does not “depict” a specific character associated with a specific festive occasion any more than wearing a police or firefighter uniform depicts a specific person or character associated with a specific event.

To me, the Santa suit is different because it has a distinct purpose of communicating the identity of the depicted individual rather than showing a functional or personal affiliation the way a uniform does. Furthermore, depicting that individual communicates specific connections with a specific festive event. In my mind, a Santa suit, like a devil, ghost, or pirate costume is communicative and linked to a festive occasion. Fancy dress, on the other hand, would be, for example, a historical costume (say a colonial minuteman) that is not associated with any specific festive occasion or specific character.
Unfortunately, I do not get to make the rules. I just help others follow them and report on the results. For now, and probably for the foreseeable future, costumes will only be classified as festive articles when they are flimsy, non-durable items that cannot be ordinarily worn for comfort and decency. I can live with that.

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