CLA-2 OT:RR:CTF:TCM H253885 TNA
Ms. Stephanie De Silva
Avon Products, Inc.
1251 Avenue of the Americas
New York, NY 10020
RE: Revocation of NY L83691 and NY L82259 and Modification of NY F85438 and NY G80850; Classification of a “Boo Boo Pack”
Dear Ms. De Silva:
This letter is in reference to New York Ruling Letter (“NY”) L83691, dated April 15, 2005, issued to you concerning the tariff classification of “Boo Boo Pack” from China. There, U.S. Customs and Border Protection (“CBP”) classified Boo Boo Pack in subheading 9503.00.00, Harmonized Tariff Schedule of the United States (“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.” We have reviewed NY L83691 and found it to be incorrect. For the reasons set forth below, we hereby revoke NY L83691.
This letter also concerns NY L82259, dated January 26, 2005, NY F85438, dated April 25, 2000, and NY G80850, dated September 5, 2000. We have reviewed these rulings as well and found them to be incorrect. For the reasons that follow, we revoke NY L82259, and modify NY F85438 and NY G80850.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY L83691 and NY L82259, and modify NY F85438 and NY G80850 was published on January 1, 2015, in Vol. 49, No. 1, of the Customs Bulletin. CBP received no comments in response to this notice.
FACTS:
The subject merchandise consists of plush fabric animals in the form of teddy bears, a hippo, and a brown bear. Each animal contains an opening in which to insert a gel pack that can either be heated or frozen. Once the gel pack is inside the animal, they are used together to treat minor scrapes, bruises, etc. in children. Each animal is imported with the gel pack.
In NY L83691, the hot/cold pack consists of a gel that contains 70 percent distilled water and 30 percent propylene glycol. In L82259, the cool pack is a reusable, flexible ice pack that consists of a non-toxic gel and a soft, washable cover that protects the skin from direct contact with the frozen gel pack. In NY F85438, the warm/cold pack consists of a rice/ lavender mix. In NY G80850, the hot pack consisted of dry, white, long-grained rice encased in a textile pouch. The Cold Pack consists of a mixture of 70 percent water, 30 percent glycol, and polyurethane foam sealed in a water-tight polyurethane film bag.
In NY L83691, NY L82259, NY F85438, and NY G80850, CBP the subject merchandise in 9503.49.00, HTSUS, which provides for “toys representing animals or non-human creatures…and parts and accessories thereof: other.”
ISSUE:
Whether fabric animals with hot or cold packs inside of them are classified as toys of heading 9503, HTSUS, or in various headings depending on the chemical makeup of the hot and cold packs?
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.
The HTSUS provisions under consideration are as follows:
1404 Vegetable products not elsewhere specified or included:
2905 Acyclic alcohols and their halogenated, sulfonated, nitrated or nitrosated derivatives
3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:
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 Chapter 29, HTSUS, provides the following:
Except where the context otherwise requires, the headings of this chapter apply only to:
(a) Separate chemically defined organic compounds, whether or not containing impurities;
(b) Mixtures of two or more isomers of the same organic compound (whether or not containing impurities), except mixtures of acyclic hydrocarbon isomers (other than stereoisomers), whether or not saturated (chapter 27);
(c) The products of headings 2936 to 2939 or the sugar ethers, sugar acetals and sugar esters, and their salts, of heading 2940, or the products of heading 2941, whether or not chemically defined;
(d) Products mentioned in (a), (b) or (c) above dissolved in water;
Note 1 to Chapter 95, HTSUS, states, in pertinent part, the following:
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).
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The EN to heading 1404, HTSUS, provides, in pertinent part, the following:
This heading covers all vegetable products, not specified or included elsewhere in the Nomenclature.
The EN to heading 2905, HTSUS, provides, in pertinent part, the following:
Acyclic alcohols are derivatives of acyclic hydrocarbons obtained by replacing one or more atoms of hydrogen by the hydroxyl group. They are oxygenated compounds which react with acids giving the compounds known as esters.
The alcohols may be primary (containing the characteristic group –CH2OH), secondary (containing the characteristic group >CHOH) or tertiary (containing the characteristic group COH)….
(C) DIOLS AND OTHER POLYHYDRIC ALCOHOLS
(I) Diols
(1) Ethylene glycol (ethanediol). A colourless, syrupy liquid with a faint, pungent odour. Used in the manufacture of nitroglycol (explosive), as a solvent for varnishes, as an anti-freeze agent or in organic synthesis.
(2) Propylene glycol (propane-1,2-diol). Colourless, viscous and hygroscopic liquid.
The EN to heading 6307, HTSUS, provides, 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 3824, HTSUS, provides, in pertinent part:
This heading covers:…
(B) CHEMICAL PRODUCTS AND CHEMICAL OR OTHER PREPARATIONS
With only three exceptions (see paragraphs (7), (19) and (32) below), this heading does not apply to separate chemically defined elements or compounds.
The chemical products classified here are therefore products whose composition is not chemically defined, whether they are obtained as by-products of the manufacture of other substances (this applies, for example, to naphthenic acids) or prepared directly.
The chemical or other preparations are either mixtures (of which emulsions and dispersions are special forms) or occasionally solutions. Aqueous solutions of the chemical products of Chapter 28 or 29 remain classified within those Chapters, but solutions of these products in solvents other than water are, apart from a few exceptions, excluded therefrom and accordingly fall to be treated as preparations of this heading.
The preparations classified here may be either wholly or partly of chemical products (this is generally the case) or wholly of natural constituents (see, for example, paragraph (24) below).
The EN to heading 9503, HTSUS, provides, in pertinent part:
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.
In NY L83691, NY L82259, NY F85438, and NY G80850, the subject merchandise was classified as toys of heading 9503, HTSUS. In several court cases that have defined the term “toy,” heading 9503, HTSUS, has been found to be a principal use provision. The CIT has provided factors which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum).
In United States v. Topps Chewing Gum, Inc., 58 C.C.P.A. 157, CAD 1022 (1971), however, 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). For articles that are both amusing and functional, we look to Ideal Toy Corp. v United States, 78 Cust. Ct. 28 (1977), in which the court stated that “when amusement and utility become locked in controversy, the question becomes one of determining whether amusement is incidental to the utilitarian purpose, or whether the utility purpose is incidental to the amusement.” Thus, not all merchandise that provides amusement is properly classified in a toy provision. See also HQ H040737, dated July 23, 2009.
In the present case, the subject merchandise has a utilitarian purpose. It is heated or chilled to decrease the pain and provide healing to children’s scrapes, bruises and other minor injuries. As a result, it cannot be classified in heading 9503, HTSUS. This conclusion is consistent with prior CBP rulings, as CBP has consistently precluded classification of items with a utilitarian function from Chapter 95, HTSUS, because of this utilitarian purpose, under both the authority of Ideal Toy Corp. and Note 1(v) to Chapter 95, HTSUS. See, e.g., HQ H238475, dated May 14, 2013 (“Note 1(v) to excludes merchandise from the heading when it has a utilitarian function. Courts have also 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 (2000). See also Ideal Toy Corp. v. United States, 78 Cust. Ct. 28 (1977)); NY N248810, dated January 13, 2014 (precluding a handbag from classification in heading 9503, HTSUS, because of its utilitarian function); NY N219280, dated June 25, 2012 (precluding classification of novelty tote bags from Chapter 95, HTSUS, because of their utilitarian function); NY N217537, dated June 1, 2012 (precluding children’s novelty tote bags from Chapter 95, HTSUS, via Note 1(v) because of their utilitarian function); NY N198255, dated January 26, 2012 (precluding a child’s novelty handbag from Chapter 95, HTSUS, via note 1(v) because of its utilitarian function); NY N141795, dated February 2, 2011(precluding a novelty travel bag from classification in Chapter 95, HTSUS, because of its utilitarian function); NY N138557, dated January 7, 2011 (precluding children’s novelty handbags from classification in Chapter 95, HTSUS, because of their utilitarian function); NY N048845, dated February 4, 2009 (precluding various tote bags from classification in Chapter 95 via Note 1(v) to Chapter 95, HTSUS).
In addition, an analysis of the Carborundum factors supports the conclusion that the subject “Boo-Boo Packs” are not toys. In terms of physical characteristics, the fabric components of the subject merchandise are imported with a gel pack. They also contain an opening into which the gel pack is inserted. This is a clear indication that the subject merchandise is intended to be used with the gel packs for healing minor wounds, not by themselves as stuffed animals. Furthermore, these “Boo Boo Packs” are often sold as cold packs in stores’ health and personal care sections, not in their toy sections. See, e.g., http://www.amazon.com/Boo-Buddy-Cat-ColdPack/dp/ B002122WWY/ ref=sr_1_1?ie=UTF8&qid=1410442483&sr=81&keywords=boo+boo+ buddies; http://www.target.com/p/sesame-street-boo-boo-buddy-cold-pack/-/A-13345776. Consumer reviews also show that consumers are purchasing and using these items as ice or hot packs first and foremost. The fact that the fabric component makes the item more attractive to children is secondary to the items’ use as an ice or hot pack. See, e.g., http://www.amazon.com/Stephan-Baby-Fuzzy-Bunnie-Pack/dp/ B002CR T2GM/ref=sr_1_1?ie=UTF8&qid=1410443428&sr=81&keywords=Stephan +baby+ fuzzy+boo+bunnie+ice+pack. Thus, an analysis of the Carborundum factors supports the conclusion that the subject merchandise is used as an ice or hot pack rather than as a toy. As a result, we examine alternate headings.
The subject “Boo Boo Packs” contain both a pack that can be heated or cooled, and fabric components. Thus, they contain two components that cannot be described by the terms of a single heading. As a result, they cannot be classified under GRI 1. GRI 2 is not applicable here, and neither is GRI 3(a), because none of the headings at issue describe the whole good more specifically than any other. As such, we turn to GRI 3(b), which states, in pertinent part, the following:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:…
Mixtures, composite goods consisting of different materials or made up of
different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
For purposes of GRI 3(b), EN IX to GRI 3(b) explains, in relevant part, that:
For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those which the components are attached to each other to form a practically inseparable whole, but also those with separable components, provided these components are adapted to one another and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
With respect to the essential character of composite goods, EN (VIII) to GRI 3(b) provides the following guidance:
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
In HQ 957478, dated September 7, 1995, CBP stated that:
In Headquarters Ruling Letter (HRL) 956845, issued December 22, 1994, we discussed the classification of articles equipped with a heating or cooling element. The ruling articulated the proposition that the heating/cooling element of articles of this kind will not always impart essential character to the article. The ruling explained that where an article as a whole appears to function primarily as a means to employ the heating or cooling element, the heating/cooling element will usually be considered to impart essential character on the basis of its more predominant function or role. In such an instance, it is relatively clear that the heating/cooling element is the predominant component for GRI 3(b) purposes. However, where the article as a whole performs an ordinary function that merely incorporates the heating or cooling function, it is not clear that the heating/cooling element is predominant. A closer examination of the components, their functions/roles, and other factors is required.
See HQ 957478.
In HQ 966262, dated May 29, 2003 we classified a heated head therapy wrap consisting of a terry head cover or hood of knit 100% polyester terry fabric and plastic covered gel packs that can be heated in a microwave and placed inside specially shaped pockets in the terry cloth as headgear of heading 6505, HTSUS. We did so because the headgear portion of the article kept the gel packs in place. The unique shape of the fabric component was paramount in the functioning of the articles. See also HQ 964851, dated April 18, 2001 (classifying the plastic eye mask is filled with chemicals and can be heated or chilled which the user places the plastic in a textile packet containing an elastic band to keep the article over his or her eyes as an article of plastic of heading 3924, HTSUS); HQ 964877, dated May 17, 2001 (classifying an eye patch consisting of a vinyl plastic eye patch filled with solution consisting of 58% propylene glycol, and 41.98% distilled water and 0.02% dyeing material that can be heated or chilled as an article of plastic of heading 3924, HTSUS); HQ 964878, dated May 17, 2001 (classifying four different styles of vinyl plastic eye masks and one vinyl plastic head compress designed to be heated or cooled and worn over the eyes or the forehead and temple as plastic articles of heading 3924, HTSUS); HQ 963725, dated May 17, 2001 (classifying a vinyl plastic eye mask filled with 59.8 percent propylene glycol, 40 percent distilled water and 0.02 percent color pigment that is intended to be chilled and placed over the user's eyes as articles of plastic of heading 3924, HTSUS); and HQ 963852, dated May 17, 2001 (classifying one facial mask consisting of a vinyl plastic facial mask filled with water, 0.3% Poly Aery/Sodion, 0.5% salt, 0.2% 2-Phenoxyaethanol and 0.05% food color, and one eye mask consisting of a vinyl plastic mask filled with a 60% glycerin and 40% distilled water mixture as articles of plastic of heading 3924, HTSUS).
In the present case, the subject “Boo Boo Packs” consist of a gel pack that is placed inside a fabric component. It is then placed on a child’s injury and serves as a barrier between the hot or cold gel pack and the child’s skin. The familiar shape and soft fabric of the animal theoretically function to soothe the child such that he or she will not be adverse to allowing the hot or cold pack to stay on the injured body part for the requisite amount of time. However, the shape of the fabric components is not particularly conducive to placement on a particular body part. Hence, this merchandise is not completely analogous to that in HQ 966262, but the fabric component here still plays a relatively important role in delivering the heat or cold for the required amount of time. Thus, the fabric component and the gel packs, in this limited scenario, equally contribute to the use of the goods. As such, the subject merchandise will be classified according to the last tariff provision at issue.
Lastly, we note that the subject merchandise is distinguishable from the ice packs and heating packs that CBP has classified in heading 3824, HTSUS, according to the chemical makeup of the gel inside the packs. See, e.g., NY N070376, dated August 11, 2009 and NY N057817, dated April 22, 2009. These rulings classified vinyl-covered gel packs that were put directly on bruises and cuts and were not first inserted into fabric components. As a result, these articles are fundamentally different than the items at issue in the present case.
HOLDING:
Under the authority of GRI 3(c), the Warm Buddy Sleep Pet, the Hot & Cold Cuddly Bear, Boo Boo Pack, and the Huggable Booboo Buddy are all classified in heading 6307, HTSUS. Specifically, they are provided for in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The column one general rate of duty 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 L83691, dated April 15, 2005, NY L82259, dated January 26, 2005 are REVOKED.
NY F85438, dated April 25, 2000, and NY G80850, dated September 5, 2000 are MODIFIED.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division