OT:RR:CTF:CPMMA H337896 NAH
TARIFF NO: 9503.00.00
Ms. Linda Golf
Assistant Center Director, Partnership
Consumer Products and Mass Merchandising Center
U.S. Customs and Border Protection
ATTN: Brooke McCoy, Import Specialist
RE: Target General Merchandise: Request for Internal Advice; 19 C.F.R. § 177.11; Classification of Squishmallows® plush articles
Dear Assistant Center Director Golf:
This letter is in response to the February 23, 2024, Request for Internal Advice concerning the proper classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of Squishmallows® plush articles. Specifically, Target General Merchandise (“Requestor”) is requesting a classification change of all Squishmallows®, independent of their size, to subheading 9503.00.0073, HTSUS (Annotated), based on the issuance of Headquarters Ruling Letter (“HQ”) H325768, dated December 22, 2023. In reaching the following determination, U.S. Customs and Border Protection (“CBP”) considered the information provided in the Request for Internal Advice and the issuance of HQ H330361, dated October 9, 2024.
FACTS:
The merchandise at issue and the facts presented by the Consumer Products and Mass Merchandising Center (“CPMM Center”) are as follows:
At issue is the classification of various size Squishmallows® plush articles. Squishmallows® are imported both as an assortment of creatures and individually. They are marketed as a collectible assortment, as shown on their hangtags.
Each individual Squishmallows® creature under current consideration varies between 8” to 20” in height. Each individual plush creature is made of polyester felt on its body and is filled with polyester fibers. Each has a comically large body and face combined and resembles the animal or creature that it represents (e.g., octopus, mouse, dragon) with facial features, markings, and notable extremities (e.g., horns, ears, wings). Each individual plush animal or creature has a hangtag and is given a proper name and character description that explains its personality, aspirations, hobbies, and the like, on each individual’s hangtag. The articles are extremely soft and smooth to the touch, and extremely squishy, to entice hugs and cuddling.
The plush articles vary in color and size with different appendages to include ears, tail, horn, mane, bill, fins, utensils, etc. The figures are collectibles and are distinctive for being soft and squishy. The figures have won toy awards such as “TOY OF THE YEAR”, “People’s Choice Award” and “Plush Toy of the Year” for 2022 by The Toy Association, Inc. and are marketed and sold as toys in the toy aisles of major retailers and online.
ISSUE:
The proper tariff classification of various Squishmallows®.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 based on GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable.
The 2024 HTSUS provisions under consideration are as follows:
6307 Other made up articles, including dress patterns:
6307.90 Other:
Other:
6307.90.98 Other
9404 Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered:
9404.90 Other:
Pillows, cushions and similar furnishings:
9404.90.20 Other
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
Section Note 1(t), Section XI, HTSUS, excludes from the section “[a]rticles of chapter 95 (for example, toys, games, sports requisites and nets).
Chapter Note 1(x), Chapter 95, HTSUS, excludes 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, while neither dispositive nor 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 9404, HTSUS, states, in pertinent part, the following:
This heading covers:
…
(B) Articles of bedding and similar furnishing which are sprung or stuffed or internally fitted with any material (cotton, wool, horsehair, down, synthetic fibres, etc.), or are of cellular rubber or plastics (whether or not covered with woven fabric, plastics, etc.).
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:
…
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.
* * * * *
In New York Ruling Letter (“NY”) N306312, dated October 18, 2019, the decision to classify the cheetah Squishmallows® as a pillow under heading 9404, HTSUS, was based on differentiating the Squishmallows® from the “pillow pets” classified in Headquarters Ruling Letter (“HQ”) H161002, dated March 30, 2012 (classifying “pillow pets,” stuffed articles that depict various types of animals such as unicorns, bumble bees, alligators, cows, dogs, and ducks, under heading 9503, HTSUS) and determining the Squishmallows® was similar to products addressed in NY N296006, dated April 27, 2018 (classifying a Minnie Mouse Emoji Plush Pillow and the Mickey Mouse Emoji Plush Pillows under heading 9404, HTSUS) and NY N250031, dated February 21, 2014 (classifying “plushes” designed to appear as daisies or butterflies under heading 9404, HTSUS). However, since NY N306312 was published, CBP examined other Squishmallows® in HQ H325768, dated December 22, 2023, and CBP classified the Squishmallows® as toys. In light of HQ H325768, CBP reexamined the cheetah Squishmallows® classification and on October 9, 2024, in Volume 58, Number 40, of the Customs Bulletin, NY N306312 was revoked. See HQ H330361, dated October 9, 2024. It is the opinion of CBP that Squishmallows®, of varying sizes, are properly classified under heading 9503, HTSUS.
Section Note 1(t) to Section XI, HTSUS, explicitly excludes merchandise classifiable as a toy from the section, which includes heading 6307, HTSUS. Note 1(x) to Chapter 95, HTSUS, explicitly excludes utilitarian items from being classified as toys. Therefore, CBP’s examination of Squishmallows® must begin with whether they are excluded from Chapter 95 or are toys.
The term “toy” is not defined in the HTSUS, the General Explanatory Notes to Chapter 95, HTSUS, state that the “Chapter covers toys of all kinds whether designed for the amusement of children or adults.” Insofar as it pertains to toys, the Court of International Trade construes heading 9503, HTSUS, to be a “principal use” provision. See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Ct. Int’l Trade 2000). Thus, to be a toy, the “character of amusement involved [is] that derived from an item which is essentially a plaything.” Wilson’s Customs Clearance, Inc. v. United States, 59 Cust. Ct. 36, C.D. 3061 (1967). In Processed Plastic Co. v. United States, 473 F.3d 1164 (Fed. Cir. 2006), the court held that “the principal use of a “toy” is amusement, diversion, or play … rather than practicality.” To assist in the determination of whether an article should be classified as a toy or not, the court in Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33, Cust. Dec. 4688 (1977) stated that “[w]hen 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.”
Thus, to be classified as a toy in heading 9503, HTSUS, an article must belong to the same class or kind of goods which have the same principal use as toys. Accordingly, to determine whether an article is included in a particular class or kind of merchandise, CBP considers a variety of factors, often referred to as the “Carborundum” factors, to determine whether articles are classifiable as toys. The factors, relevant here, include: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class. See United States v. Carborundum Co., 536 F.2d 373, 377 (Cust. Ct. 1976). While these factors were developed under the Tariff Schedule of the United States (the predecessor to the HTSUS), the courts, and this office have applied and continue to apply them to the HTSUS. See, e.g., Minnetonka Brands, 110 F. Supp. 2d at 1026; Aromont USA, Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012); Essex Mfg., Inc. v. United States, 30 C.I.T. 1 (2006).
In HQ H325768, CBP carefully examined the definition of “toy” and its use by the Court of International Trade, the application of the relevant primary use factors espoused in Carborundum, and the similarity between Squishmallows® and the pillow pets classified in HQ H161002, dated March 30, 2012. Altogether, CBP determined the Squishmallows® addressed in HQ H325768, dated December 22, 2023, were properly classified as toys. While the Squishmallows®, that are the subject of this Internal Advice, are not explicitly addressed in HQ H325768, dated December 22, 2023, the products at issue are inextricably linked. The Squishmallows® in HQ H325768 and the subject of this internal advice are made of polyester felt and filled with polyester fibers; each is designed without arms or legs, and the head and torso form one body part; the exterior has stitching and print designed to resemble the animal or creature that it represents; each Squishmallows® has three dimensional appendages sewn onto the body, such as, ears, tails, horns, or wings; and each Squishmallows® has a hangtag that creates names and personalities for the figures. While not identical, the Squishmallows® addressed in HQ H325768, dated December 22, 2023, are so similar to the subject merchandise that the legal analysis underpinning their classification should be the same even though exact sizes may not align.
To that end, CBP finds the reasoning in HQ H325768, dated December 22, 2023, to be determinative. The application of the Carborundum factors to the Squishmallows® being examined here results in their classification under heading 9503, HTSUS, as a toy.
The general physical characteristics of the Squishmallows® are intended to amuse rather than be utilized as a typical pillow: The printed and stitched detailing and the notable extremities are designed to amuse a child and playfully resemble an animal or creature. The details specifically reduce the merchandise’s ability to function as a utilitarian pillow.
The channels, class or kind of trade in which the merchandise moves (where the merchandise is sold) is predominantly in the toy sections, aisles and websites of stores and companies, rather than in the bedding or homewares aisles, departments or sections.
The expectation of the ultimate purchasers is to provide a child with a named plush toy with which the child can play and bond with like a teddy bear or blanket that many children take everywhere for amusement and emotional comfort.
The environment of the sale (i.e., accompanying accessories and marketing) is, as stated in the discussion of factor 2, predominantly in the toy aisles, departments and sections of websites and not in the homewares or bedding departments with other pillows, blankets and bedding.
The primary usage of the Squishmallows® is the amusement of children, in the same manner as merchandise which defines toys classified under heading 9503, HTSUS. The Squishmallows® are intended to amuse children in the same manner as a teddy bear.
The exact size of the Squishmallows® only superficially affects the analysis of HQ H325768, dated December 22, 2023. In fact, while the size of the Squishmallows® in HQ H325768 is mentioned, it is the whole shape of the Squishmallows® that makes them unsuitable as pillows and to fit in standard pillowcases. Further, when comparing the Squishmallows® at issue here to the merchandise examined in HQ H161002, dated March 30, 2012, it becomes clear the Squishmallows® are more like pillow pets than like cushions, whose purpose is to support the body and increase comfort. A Squishmallows® lacks the support or shape of a utilitarian pillow and therefore the substantial amusement it produces outweighs the slightly more limited utilitarian value, which allows the Squishmallows® to be classified as toys.
The Squishmallows® at issue in this Internal Advice are too similar to the Squishmallows® in HQ H325768, dated December 22, 2023, to produce a different classification and the same legal analysis espoused in HQ H325768, dated December 22, 2023, applies here. The Squishmallows® do not have an accompanying pillowcase, would not correctly fit into a standard pillowcase, and would rarely be used as a pillow to support a person’s head when sleeping. The size of the items, their shape, their depth, their plush squishiness, and their colorful and fun design demonstrate that the Squishmallows® are primarily designed to amuse, rather than be used for utilitarian purposes. The articles are not of the correct size or flatness to support the head or the body as a utilitarian pillow and it is not designed to provide or increase comfort. The fabric and plush stuffing are extra soft because the Squishmallows® are intended to be cuddled. The Squishmallows®, in all their various sizes, are designed to entice a child to hug and bond with them, similar to the pillow pets classified in HQ H161002. The Squishmallows® at issue here are too similar to pillow pets and other Squishmallows® classified in heading 9503, HTSUS, to be classified separately.
As such, the Squishmallows® are described by heading 9503, HTSUS, and preclude classification under heading 9404, HTSUS, or heading 6307, HTSUS. In accordance with GRI’s 1 and 6 the Squishmallows® are described in and classified under heading 9503, HTSUS and specifically under subheading 9503.00.00, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the Squishmallows®, are classified in heading 9503, HTSUS, and specifically in subheading 9503.00.00, HTSUS, which provides for “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.” The 2024 column one, general rate of duty is free.
You are to mail this decision to the requestor no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division