OT:RR:CTF:CPMMA H330361 NAH
TARIFF NO: 9503.00.00
Ms. Laty Chaykeo
International Trade Analyst
Ascena Retail Group, Inc.
112 Heritage
Pataskala, OH 43062
RE: Revocation of NY N306312; Tariff classification of a plush stuffed pillow from China.
Dear Ms. Chaykeo:
This letter is in reference to New York Ruling Letter ("NY") N306312, dated October 18, 2019, concerning the tariff classification a cheetah pillow that is a member of a merchandise line of stuffed pillows depicting various animals (cat, panda, fox, etc.) referred to as "Squishmallows." In NY N306312, U.S. Customs and Border Protection ("CBP") classified the cheetah Squishmallows under heading 9404, Harmonized Tariff Schedule of the United States ("HTSUS"), and specifically under subheading 9404.90.20, HTSUS, which provides for "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: Other: Pillows, cushions and similar furnishings: Other."[1] We have reviewed NY N306312 and determined that the ruling is in error. Accordingly, for the reasons set forth below, CBP is revoking NY N306312.
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 ("Customs Modernization") of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on July 31, 2024, in Volume 58, Number 30, of the Customs Bulletin. One comment was received in support of the proposed action.
FACTS:
The merchandise at issue was described in NY N306312, as follows:
The cheetah Squishmallows is an asymmetrical, oval, plush pillow in the likeness of a forward-facing, cheetah with black applique eyes, an off-white applique belly and an off-white applique snout with a black embroidered nose and mouth. A cheetah-print fabric covers all surfaces, including the ears extending from either side of the "head" and the tail, sewn onto the back. The Squishmallows measures approximately 18" x 17" x 4" (H x W x D at its deepest) and is stuffed with a polyester fiberfill. We note that the Squishmallows has neither arms nor legs, and the head and torso form one body part. The company website says that Squishmallows offer comfort, support and warmth as couch companions, pillow pals, bedtime buddies and travel teammates.
ISSUE:
What is the proper tariff classification of the Squishmallows cheetah.
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:
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:
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(x), Chapter 95, HTSUS, excludes from classification in Chapter 95 "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 ENs 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 ENs 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.
* * * * *
In 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 cheetah 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 that decision, CBP must reexamine whether the cheetah Squishmallows is a toy or a pillow.
Note 1(x) to Chapter 95, HTSUS, explicitly excludes utilitarian items from being classified as toys, therefore CBP's examination of the cheetah Squishmallows must begin with whether it is excluded from Chapter 95, HTSUS. 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.[2] 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 CBP 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, dated December 22, 2023, 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, were properly classified as toys. While the cheetah Squishmallows, that is the subject of NY N306312, dated October 18, 2019, was not explicitly addressed in HQ H325768, dated December 22, 2023, the products at issue in both rulings are inextricably linked. In both rulings the Squishmallows at issue were over 12" in height; 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 NY N306312, dated October 18, 2019, and in HQ H325768, dated December 22, 2023, are so similar that the logic underpinning their classification should be the same.
To that end, CBP finds the reasoning in HQ H325768, to be determinative. The application of the Carborundum factors to the cheetah Squishmallows results in its classification under heading 9503, HTSUS, as a toy.
1. The general physical characteristics of the cheetah 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 resemble the cheetah animal. The details specifically reduce the merchandise's ability to function as a utilitarian pillow.
2. 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.
3. 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.
4. 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.
5. The primary usage of the cheetah Squishmallows is the amusement of children, in the same manner as merchandise which defines toys classified under heading 9503, HTSUS. The cheetah Squishmallows is intended to amuse children in the same manner as a teddy bear.
Further, when comparing the cheetah Squishmallows to the merchandise examined in HQ H161002, dated March 30, 2012, it becomes clear the cheetah Squishmallow is more like a pillow pet than a cushion, whose purpose is to support the body and increase comfort. The cheetah Squishmallows does not have an accompanying pillowcase, would not correctly fit into a standard pillowcase, and would not be used as a pillow to support a person's head when sleeping. The size of the item, its shape, its depth, its plush squishiness, and its colorful and fun design demonstrate that the cheetah Squishmallows are designed to amuse, rather than be used for a utilitarian purpose. The article is 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. It is designed to entice a child to hug and bond with it, similar to the pillow pets, classified in HQ H161002, dated March 30, 2012. The fabric and plush stuffing are extra soft because the cheetah Squishmallows is intended to be cuddled. Therefore, the cheetah Squishmallows are not utilitarian items and are not excluded from heading 9503, HTSUS, by Note 1(x) to Chapter 95, HTSUS. Under GRI 1 and 6 the cheetah Squishmallows is described in and classified under heading 9503, HTSUS and specifically under subheading 9503.00.00, HTSUS. As such, NY N306312, dated October 18, 2019, is in error and is revoked accordingly.
HOLDING:
By application of GRIs 1 and 6, the cheetah Squishmallows, is 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.
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 at https://hts.usitc.gov/.
EFFECT ON OTHER RULINGS:
NY N306312, dated October 18, 2019, is hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its final publication in the Customs Bulletin.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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[1] [2]
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h&h"$hEXh&hbZ0J5?\?h&h"$0J5?\?h&h80J5?\?h&hm0JThe Harmonized Tarriff Schedule of the United States Annotated ("HTSUSA") at the tenth digit level has changed since NY 306312 was decided on October 18, 2019. Those changes have no bearing on this ruling.
[4] The legal history of classification of toys under heading 9503, HTSUS, is recounted in depth by CBP in HQ H275175, dated September 5, 2017, and replicated in HQ H325768, dated December 22, 2023.