CLA-2 OT:RR:CTF:TCM H229993 TNA
William J. Maloney, Esq.
Rode & Qualey, Attorneys at Law
55 West 39th Street
New York, NY 10018
RE: Reconsideration of NY N215058; Classification of “Comfy Critters”
Dear Mr. Maloney:
This is in response to your request, dated July 5, 2012, filed on behalf of Infinity Headwear and Apparel (“Infinity”) for reconsideration of New York Ruling Letter (“NY”) N215058, dated May 17, 2012, as it pertains to the classification of a “Huggable Hoody Blanket,” which you also call “Comfy Critters,” under the Harmonized Tariff Schedule of the United States (HTSUS). In coming to our decision, we have taken into account arguments presented during a teleconference with member of my staff on February 1, 2013, as well as arguments presented in a supplemental submission dated February 15, 2013.
FACTS:
The subject merchandise consists of several models of “Comfy Critters,” each constructed of 100% knit polyester pile fabric. When fully opened, each model is shaped like a blanket that measures approximately 47” x 36” except that it also includes a three dimensional animal’s head with facial features such as eyes, nose, ears, snouts, etc. Two of the corners of the flat rectangular portion of the article have “paws” sewn on in a color fabric to match the animal head.
The subject merchandise also contains straps with hook-and-loop closures. These straps allow a user to fold up the blanket shaped portion, fold it into the head-shaped portion, and secure it. When closed in this manner, it assumes an oval, rounded shape, and the “paws” are no longer visible. Whereas no samples of the subject merchandise were retained by this office, a disc with marketing materials showing the way the merchandise is used was submitted and viewed.
ISSUE:
Whether “Comfy Critters” are classified as blankets of heading 6301, HTSUS, as other textile articles of heading 6307, HTSUS, or as toys of heading 9502, HTSUS?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
The HTSUS headings under consideration are the following:
6301 Blankets and traveling rugs:
6307 Other made up articles, including dress patterns:
9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
Note 1 to Section XI, HTSUS, of which Chapter 63, HTSUS is a part, states the following:
This section does not cover:…
(t) Articles of chapter 95 (for example, toys, games, sports requisites
and nets)
Note 7 to Section IX, HTSUS, states the following:
For the purposes of this section, the expression “made up” means:
Cut otherwise than into squares or rectangles;
Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
Cut to size and with at least one heat-sealed edge with a visibly tapered or compressed border and the other edges treated as described in any other subparagraph of this note, but excluding fabrics the cut edges of which have been prevented from unraveling by hot cutting or by other simple means;
Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been prevented from unraveling by whipping or by other simple means;
Cut to size and having undergone a process of drawn thread work;
Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or
Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
Note 1 to Chapter 95, HTSUS, states, in relevant part, that:
This chapter does not cover:…
(v) Tableware, kitchenware, toilet articles, carpets and other textile
floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material).
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 6301, HTSUS, states, in pertinent part, the following:
Blankets and travelling rugs are usually made of wool, animal hair, cotton or man-made fibres, frequently with a raised pile surface, and generally of thick heavy-texture material for protection against the cold. The heading also covers rugs and blankets for cots or prams.
The EN to heading 6307, HTSUS, states, in pertinent part, the following:
This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
The EN to heading 9503, HTSUS, states, in pertinent part, the following:
This heading covers :
…
(D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults). However, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals, e.g., pets, do not fall in this heading, but are classified in their own appropriate heading. This group includes:
…
(i) Toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters), including those for use in marionette shows.
You state that reconsideration of NY N215058 is warranted because the original ruling request did not provide information regarding marketing or principal use of the “Comfy Critters.” You argue that the subject merchandise should be classified as toys of heading 9503, HTSUS, which is a use provision and therefore more specific than heading 6307, HTSUS, a basket provision. In support of this argument, you cite NY N067495, dated July 21, 2009, which classify “Pillow Chums” as toys of heading 9503, HTSUS. You also compare the “Comfy Critters” to the “Pillow Pets” of HQ H161002, dated March 30, 2012, and argue that HQ H161002 supports your position that the “Comfy Critters” should be classified as toys of heading 9503, HTSUS.
In response, we begin by noting that Additional U.S. Rule 1 states, in pertinent part, the following:
In the absence of special language or context which otherwise requires—
(a) a tariff classification controlled by use (other than actual use) is to
be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use
In several court cases that have defined the term “toy,” heading 9503, HTSUS, has been found to be a principal use provision. In United States v. Topps Chewing Gum, Inc., 58 C.C.P.A. 157, CAD 1022 (1971), the court defined “toy” as “any article chiefly used for the amusement of children or adults.” United States v. Topps Chewing Gum, Inc., 58 C.C.P.A. 157, CAD 1022 (1971). In Minnetonka Brands v. United States, 24 C.I.T. 645; 110 F. Supp. 2d 1020; 2000 Ct. Intl. Trade LEXIS 87; SLIP OP. 2000-86 (Ct. Int’l. Trade 2000) (“Minnetonka”), the court held that “an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality.” Minnetonka Brands v. United States, 24 C.I.T. 645; 110 F. Supp. 2d 1020; 2000 Ct. Intl. Trade LEXIS 87; SLIP OP. 2000-86 (Ct. Int’l. Trade 2000). In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28; 1977 Cust. Ct. LEXIS 952 (Cust. Ct. 1977), the court reiterated the Topps court’s definition of a toy, and stated that “when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose incidental to the amusement.” Ideal Toy Corp. v. United States, 78 Cust. Ct. 28; 1977 Cust. Ct. LEXIS 952 (Cust. Ct. 1977).
Furthermore, in Louis Marx and Co., Inc., v. United States, 66 Cust. Ct. 139, C.D. 4183 (1971) (“Louis Marx”), the court concluded that (1) that the term “figures of animate objects” included only those figures which represent living beings; and (2) that since the subject merchandise consisted of figures that represent plant life with human characteristics, they are not figures of animate objects for tariff purposes. Louis Marx and Co., Inc., v. United States, 66 Cust. Ct. 139, C.D. 4183 (1971). While Louis Marx concerned subheading 737.30, Tariff Schedules of the United States (TSUS), this tariff provision corresponds to subheading 9503.00.00, HTSUS. See Conversion of the Tariff Schedules of the United States Annotated into the Nomenclature Structure of the Harmonized System, USITC Publication 1400, 31 (June 1983). In addition, in rulings issued under the HTSUS, CBP has held that the phrase “figures of animate objects” refers to a clearly defined configuration of an animate object in a three-dimensional form. We have therefore found both judicial and administrative support for the notion that, under the HTSUS, the provisions for toys representing animals and non-human creatures require that a toy figure must be a full or reasonably full-figured depiction of the animal/creature it seeks to represent, and that figure must be a soft, sculptured edition or an articulation in three dimensions of the head, torso, and appendages of the character being portrayed. See, e.g., HQ 963390, dated November 24, 2000; HQ 951533, dated June 17, 1992, HQ 957560, dated October 12, 1995. Furthermore, rulings issued following the 2007 changes to the HTSUS have upheld this standard despite the fact that heading 9503, HTSUS, no longer makes the distinction between toys that depict humans and other animals, and toys that do not. See HQ H161002. We also note that you rely on HQ H161002 extensively to support your argument of classification in heading 9503, HTSUS. As a result, your argument that Louis Marx should not apply to the present case is unpersuasive.
Finally, Minnetonka found that heading 9503, HTSUS, is a principal use provision. Minnetonka, 24 C.I.T. 645, 651. As a result, to determine whether the “Comfy Critters” are principally used as toys, we analyze them according to the factors laid out in United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976). These factors include (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels, class or kind of trade in which the merchandise moves; (4) the environment of the sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed); (5) usage, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade of the use. See Carborundum, 63 C.C.P.A. 98.
In the present case, we apply the Carborundum factors as follows:
1. General physical features: the physical characteristics of toys are that they are designed to amuse. Topps Chewing Gum, Inc., 58 C.C.P.A. 157. When they are figures of animate objects, they must be reasonably full-figured depictions of live animals and soft, sculptured edition or three-dimensional articulation of the animal’s head, torso, and appendages. Louis Marx, 66 Cust. Ct. 139; HQ 963390; HQ 951533; HQ 957560. In the present case, the Comfy Critters are essentially flat articles. The “body” of the animal is in the form of a rectangular piece of fabric that can be used as a blanket. The animal’s “head” is also essentially flat when in the open position. The Comfy Critters become three-dimensional only when the fabric is folded into the animal’s “head” and secured, and this configuration obscures the animal’s paws. Hence, even accounting for the Comfy Critters’ various configurations, their physical characteristics do not support classification as a toy of heading 9503, HTSUS.
2. Channels of trade and 3. Environment of sale: We note that both the marketing flyer attached to the request for reconsideration and the original ruling request call the Comfy Critters a “huggable hooded blanket.” Furthermore, the importer’s name is “Infinity Headwear and Apparel”; this suggests that the company’s merchandise is either headwear or apparel, not toys. In addition, the DVD of marketing material that accompanied the request for reconsideration showed the Comfy Critters being used both in their open and closed positions. Yet, at present this product is not widely available and can only be purchased from the importer’s website, or from affiliated sites where reviews of the merchandise have been posted. These reviews show use as a blanket, a pillow to lean on, a hooded cape to wear, and an “animal friend.” As such, the channels of trade and environment of sale favor use as a made-up article.
4. Expectation of ultimate consumers and 5. Actual usage: User reviews show the Comfy Critters being called and used more as a blanket than as a stuffed animal. These reviews also indicate that the children for whom the Comfy Critters were purchased were more interested in using them as blankets than as toys. Furthermore, both these reviews and the pictures that accompany them show actual use as a blanket or cape more often than as a stuffed animal. See, e.g., http://twoboysonegirlandacrazymom.com/cuddly-and-cute-the-comfycritters-make-a-wonderful-christmas-gift-review-giveaway/; http://www.mycomfycritters. com/blogs/news/4736862-check-out-the-awesome-review-of-comfy-critters-on-an-island-life; http://www.thesimplemoms.com/2012/ 03/comfy-critters-the-huggable-hooded-blanket.html. As a result, we find that these two factors support use of the subject merchandise as a made up article.
6. Recognition in the trade: The websites on which the Comfy Critters are sold advertise their use as a blanket, cape, pillow, and a three-dimensional stuffed animal when the blanket portion is wrapped up. Furthermore, the user reviews cited above acknowledge that the Comfy Critters can be used as a stuffed animal, even if they note that the children using them prefer to use them in other ways. As such, this factor supports many uses.
7: Economic practicality of using the Comfy Critters: the Comfy Critters are usually sold for approximately $20. See, e.g., http://www.mycomfycritters.com/. This is much more expensive than the majority of stuffed animals that are sold commercially, as many stuffed animal sell for $10 or under. See, e.g., www.amazon.com; www.ebay.com. Thus, it is not economically practical for consumers to purchase the Comfy Critters as stuffed animals.
After examining the Carborundum factors, we note that only one of these factors support use of the Comfy Critters as toys of heading 9503, HTSUS. Furthermore, we note that consumers can and do use the Comfy Critters as a cape, pillow, or blanket, as marketed. This is a practical, utilitarian function that shows that the Comfy Critters are not designed principally for amusement. See Topps Chewing Gum, 58 C.C.P.A. 157; Minnetonka Brands, 24 C.I.T. 645; Ideal Toy Corp., 78 Cust. Ct. 28. This conclusion is supported by Note 1(v) to Chapter 95, HTSUS, which excludes merchandise from classification as toys of heading 9503, HTSUS, if they are articles of apparel or similar items that have a utilitarian function. We find that the Comfy Critters meet the terms of this Note. As such, the Comfy Critters cannot be classified as toys of heading 9503, HTSUS.
In arguing for classification in heading 9503, HTSUS, you also rely on HQ H161002, which classified Pillow Pets as toys of heading 9503, HTSUS. The Comfy Critters can be distinguished from the Pillow Pets in that the Pillow Pets presented more realistic three dimensional depictions of the animals they portrayed. Furthermore, the Pillow Pets were more strongly marketed and sold as stuffed animals than the Comfy Critters, and consumer reviews showed that they were actually used as stuffed animals more often than the Comfy Critters. In addition, classification of the Pillow Pets as toys of heading 9503, HTSUS, was supported by a long line of prior CBP rulings that classified similar merchandise with dual functions as toys and pillows in heading 9503, HTSUS. See, e.g., HQ 964167, dated December 3, 2001; HQ 964006, dated October 24, 2001; HQ 962131, dated November 2, 2000.
In the present case, by contrast, the Comfy Critters can be distinguished from prior rulings that have classified novelty blankets as toys of heading 9503, HTSUS. See, e.g., HQ 966843, dated February 25, 2004; HQ 966809, dated February 25, 2004; HQ 966758, dated November 5, 2003; NY G84760, dated December 20, 2000. In these cases, CBP classified the “Animal Head Security Buddy,” “Blanket Buddies” and animal blankets, respectively. Each of these consisted of rectangular fabric with a stuffed animal sewn onto it. In each case, the rectangular fabric was smaller than that of the Comfy Critters, making them less usable as blankets. Furthermore, the combination of the rectangular fabric and the stuffed animal made these items more akin to novelty items for children to snuggle with in bed, such as a security blanket. As such, they are distinguishable from the Comfy Critters, which have a utilitarian function as a blanket and which are more than simply stuffed animals.
Lastly, we note that you cite NY N067495 in support of classification of the Comfy Critters in heading 9503, HTSUS. The “Pillow Chums” of NY N067495 are akin to the Pillow Pets of HQ H161002 in that they were stuffed three-dimensional plush animals with clearly defined head and paws that could open to become a pillow or cushion. Furthermore, the underside of the “Pillow Chums” was constructed with a hook and loop closure that created a full-figured depiction of a cuddly stuffed animal when the product is in a folded, fastened state. As such, the Comfy Critters are distinguishable from the “Pillow Chums” for the same reasons that they are distinguishable from the Pillow Pets.
Because the Comfy Critters cannot be classified as toys of heading 9503, HTSUS, we examine alternate headings. As such, we examine classification in heading 6301, HTSUS, which provides for various types of blankets. To be classified here, merchandise must protect a user against the cold. See EN 63.01. The Comfy Critters meet these terms, but this merchandise contains additional features. The Comfy Critters’ hood, which is shaped like an animal’s head, contains substantial padding and is elaborately designed. Furthermore, this hood allows the user to fold up the rectangular portion of the merchandise into the hood to create a three-dimensional object. These features distinguish the Comfy Critters from the one-dimensional blankets without any additional features that prior rulings have classified in heading 6301, HTSUS. See, e.g., HQ H161715, dated June 27, 2012.
The Comfy Critters are also distinguishable from the merchandise of NY N187623, dated October 28, 2011. There, CBP classified a blanket that measured 30 inches by 40 inches and contained semi-circular stuffed fabric dog “paws” attached to each corner. A detailed stuffed dog’s head was attached to the center of one end of the blanket, and a small stuffed tail was attached to the opposite end. There, although there was a pocket in the head that allowed this merchandise to function as a puppet, the dog’s features were much more incidental to the blanket than the additional features of the Comfy Critters. By contrast, the Comfy Critters are not simply blankets; they are novelty items that combine aspects of blankets, stuffed animals, costumes and pillows. As such, they are not completely described as “blankets” of heading 6301, HTSUS.
Similarly, whereas the Comfy Critters can be used as pillows of heading 9404, HTSUS, when they are in their closed position, the Comfy Critters are more than simply pillows in the same way that they are more than simply blankets. As such, we believe that they cannot be classified as pillows of heading 9404, HTSUS, either. Having excluding the subject merchandise from headings 6301, 9404, and 9503, HTSUS, we examine heading 6307, HTSUS, which provides for “Other made up articles, including dress patterns.” This heading provides for items of textile that are not specifically provided for elsewhere in the nomenclature. See EN 63.07. The subject merchandise meets these terms. It also meets the definition of “made up articles” found in Note 7 to Section XI, HTSUS, in that it is cut to shape and is in a finished state, ready for use.
Furthermore, CBP has long classified similar items that have the functionality of a blanket, and yet can fold up into a cushion or pillow and contain other features, in heading 6307, HTSUS. In particular, in NY H81207, dated June 6, 2001, CBP classified a textile item that acted as a blanket, poncho and cushion in heading 6307, HTSUS. There, the merchandise was large enough to be used as a blanket and poncho, but also contained a pouch that could double as a hood and a place in which to wrap up the rest of the item into a cushion. The subject Comfy Critters are substantially the same merchandise. See NY H81207; see also NY D85676, dated December 18, 1998. As such, we find that the Comfy Critters are classified in heading 6307, HTSUS.
HOLDING:
Under the authority of GRI 1, the Comfy Critters are provided for in heading 6307, HTSUS. Specifically, they are classified in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” As such, the duty rate is 7% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N215058, dated May 17, 2012, is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division