CLA 2 RR:CR:TE 964690 SG
Ms. Pilar Dorfman
E. Besler & Company
115 Martin Lane
Elk Grove Village, Illinois 60007-1309
Re: Classification of Stuffed Pillow-like Articles in Form of Variety of Animals: Oversized Animal Body Pillows: Pillows: Stuffed Toys
Dear Ms. Dorfman:
This is in response to your October 23, 2000, request, on behalf of your client, LTD Commodities, Inc., for a binding classification ruling under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a KJP-Oversize Body Pillow. A sample was submitted. It is returned under separate cover.
FACTS:
The sample is a pillow-like article designed and shaped to resemble a tiger. We understand that the merchandise is also manufactured to resemble a dog (Rascal), and a panda bear (Paddy). Each differs depending on the animal that it represents. However all appear to possess the following characteristics and features, as appropriate: The outer surfaces are composed of 100% tricot plush. The fabric is stuffed with 100% polyester fiberfill giving the articles a soft, resilient feel. The sample measures approximately 32 inches long (excluding tails) by 16 inches at its widest point. It is 5 to 7 inches thick. The construction of the sample includes a stuffed head with eyes, a nose, a snout and ears, the nose and eyes are plastic, the ears and snout are stuffed and three-dimensional; a fairly block-shaped torso with appendages, e.g., heads, tails; flat and plain undersides; and arm, leg, and paw appendages which are stuffed but are configured in such a way as to form, with the torso, a rectangle shaped article. These features make the article eminently suitable for use in a stretched out and prone position on its stomach and impractical for use in any other position.
ISSUE:
Whether the proper classification of the body pillow is in heading 6307, HTSUS, as other made up textile articles, in heading 9503, HTSUS, as stuffed or other toys, or in heading 9404, HTSUS, as other pillows?
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the Harmonized System is such that virtually all goods are classified by application of GRI 1, that is, 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's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the international Harmonized System, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.
The competing provisions for the article is heading 6307, HTSUS, other made up textile articles, heading 9503, HTSUS, stuffed or other toys, and heading 9404, HTSUS, other pillows.
Heading 9404, HTSUS, provides for articles of bedding and similar furnishings (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed.
A pillow is defined by Webster's Third New International Dictionary, Unabridged (1986) as "1 a : something used to support the head of a person resting or sleeping; esp : a sack or bag made typically of cloth and filled with a soft or resilient material (as feathers, down, hair, sponge rubber): CUSHION." In defining cushions and pillows. The Random House Dictionary of the English Language, the Unabridged Edition (1983) states at p. 357, "CUSHION, PILLOW, BOLSTER agree in being cases filled with a material more or less resilient, intended to be used as supports for the body or parts of it. A CUSHION is a soft pad used to sit, lie, or kneel on, or to lean against: a number of cushions on a sofa; cushions on pews in a church. A PILLOW is a bag or case filled with feathers, down, or other soft material, usually to support the head: to sleep with a pillow under one's head."
It is the opinion of this office that so long as pillow-like articles such as the body pillow at issue are sufficient in size and stuffing to be capable of providing support, classification in heading 9404, HTSUS, is not excluded.
The size, shape, and texture of the sample provides a clear invitation for children to relax, snuggle, and sprawl upon their favorite animal or creature. We note that the catalog page supplied by the importer describes the merchandise as “oversized animal body pillows”, and shows a child stretched out laying on the article. This seems to be similar to the use of cushions as defined above. The attraction and function of the article before us is similar to the Pillow Buddies® of HQ 960480 dated November 24, 2000, which referred to pillow-like articles designed and shaped to resemble animals and which possessed some toy features.
The article at issue is described within the provisions of heading 9404, HTSUS. We must now consider whether it is also described within the provisions of heading 9503, HTSUS, as claimed by the importer.
Chapter 95, HTSUSA, covers toys of all kinds, whether designed for the amusement of children or adults. Although the term “toy” is not specifically defined in the tariff, the ENs to Chapter 95, HTS, indicate that this chapter covers toys of all kinds whether designed for the amusement of children or adults. Customs has classified in subheadings 9503.41 through 9503.49, HTSUS, the provisions for toys representing animals or non-human creatures, those toy animals or creatures which are full or reasonably full-figured depictions of the animals or creatures which they seek to represent, which are fully configured in the sense that they are an articulation of the character in three dimensions, i.e. a representation in a sculptured form. See Headquarters Ruling Letters HQ 951533, dated June 17, 1992, HQ 957560, dated October 12, 1995, and HQ 957617, dated May 3, 1995.
In the case of Louis Marx & Co., Inc. v. United States, 66 Cust. Ct. 139, C. D. 4183 (1971), the court stated that " `figures of animate objects' must be read to mean forms or representations of humans or animals. In HRL 079594, dated March 8, 1987, we stated that Customs position has been that the phrase "figures of animate objects" refers to a clearly defined configuration of an animate object in a three-dimensional form. It is, therefore, clear that there is both judicial and administrative support for the idea that 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.
The sample basically, although not completely, meet this criterion. The construction of this figure includes a stuffed head with eyes, noses, snout and ears, fairly block-shaped torso with stuffed appendages, heads, tails; flat and plain undersides; and arm, leg, and paw appendages which are stuffed but are configured in such a way as to form, with the torso, a basically rectangular article. The sample is generally designed and constructed to lie in a flat position, as would any pillow-like object. The shape of the article enables it to be used as a floor or bed pillow while watching TV, reading, relaxing, or napping. Because of this design, the anatomy of the article is not completely and fully delineated into sculpted fully three-dimensional anatomical definition of the animal it seeks to portray.
In addition, in order for the sample to be classified as a toy it must be principally designed for amusement. It is our view that the shape, colors, and design of the article for which classification is sought is designed to amuse. We note however, that their large size makes them difficult for a small child (the ultimate consumer) to manipulate and detracts somewhat from their play value, although not their amusement value as evidenced by the reactions of the children we observed with the sample submitted. To the children this was an object of much amusement. It therefore appears that the imported article may have a dual purpose, for use as a pillow-like object, and as a toy. See HQ 960480, dated November 24, 2000, which concerned Pillow Buddies®, stuffed pillow-like articles in the form of a variety of animals and objects, which are very similar to the sample before us here. In that case we noted that sample was a reasonably full-figured depiction of the animal it represented. In addition, the article could be used for support, as for example, if placed along the spine of a chair to provide support to the lower back. The filling did not merely provide shape to the pillow, but also offered support. However upon a review of the commercial sample submitted, and observation of how this article was actually used by the ultimate consumers (children), we determined that the primary use of this article was in as a toy and not as a pillow. Its cartoon-like amusing appearance, and soft, manipulative polyester fleece skin made it suitable as an object of amusement or plaything. It appeared to be principally used as a toy and its use for any other purpose would be secondary. This is the case with the sample before us too.
The subheadings at issue essentially differentiate between toy animals that are stuffed and those that are not stuffed.
In determining whether an article classifiable within heading 9503 is stuffed for tariff purposes, it is Customs position that the stuffing materials must impart the shape and form of the torso of the animal or creature. Customs has also held that the "feel" of an article may be relevant to the determination as stuffed or non-stuffed. This long-standing position is based, in part, on the dictionary definition of the verb "stuff," which was adopted in Customs Information Exchange Ruling (C.I.E.) 449/46, issued August 7, 1946. The cited definition is, in part, as follows:
Stuff, v. I.t. 1. To fill to distention by crowding something into; cram; pack full; as, to stuff a trunk full of clothes; to stuff the head with knowledge.
2. Specif., to fill with material specially prepared for such use; as, to stuff a cushion…
…
4. To cram into a small space; crowd; as, to stuff a newspaper into one's pocket.
5. To fill full or distend by crowding or being crowded into…
In HRL 089334, issued August 26, 1991, Customs, after citing this definition, stated that: “It is apparent that the emphasis of the above definition is upon the filling and/or distending of the article that is ‘stuffed.’” There is a generous use of words and phrases such as "cram," "crowd," and "pack full." Customs has reiterated its acceptance of the above definition on many occasions since the C.I.E. ruling was published, and has not altered its rather strict standards concerning the "stuffed" classification of articles similar to the item at issue.
In this case, the stuffing materials do impart the shape and form of the article, the torso returns to its original form after being compressed. It is our view that taken as a whole the article adequately portrays an animal likeness and that the stuffed toy animal provides the essential character of the sample. It is therefore classified as a stuffed toy.
Heading 6307, HTSUS, provides for other made up articles of textiles. It is a basket provision wherein a variety of merchandise is classified when no other heading more specifically provides for given merchandise. This is not the situation in this case.
HOLDING:
The sample is classifiable in subheading 9503.41.0000, HTSUSA, which provides for “Other toys…:Toys representing animals or non-
human creatures…:Stuffed toys and parts and accessories thereof.” It is neither subject to quota nor to duty.
Sincerely,
John A. Durant, Director
Commercial Rulings Division