Request for reconsideration of HQ H229993; Classification of Comfy Critters

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H287565 May 17, 2019 OT:RR:CTF:FTM H287565 LOR CATEGORY: Classification TARIFF NO.: 6307.90.9889 Mr. Mark J. Segrist Sandler, Travis & Rosenberg, P.A. 225 West Washington Street, Suite 1640 Chicago, IL 60606 RE: Request for reconsideration of HQ H229993; Classification of Comfy Critters Dear Mr. Segrist: This is in response to your letter of April 18, 2017, submitted on behalf of Infinity Headwear and Apparel, LLC (“Infinity”), requesting reconsideration of Headquarters Ruling Letter (“HQ”) H229993, dated July 30, 2013. HQ H229993 involved the classification of Comfy Critters under subheading 6307.90.98, Harmonized Tariff Schedule of the United States (“HTSUS”). In your reconsideration request, you contend that the classification determination set forth in HQ H229993 is erroneous. You also requested a meeting in the event that CBP disagreed with your proposed classification. Upon our review of HQ H229993 we have determined the ruling to be correct. Accordingly, we are affirming the ruling. On December 18, 2018, February 4, 2019, and May 8, 2019, a member of my staff advised you of our decision and asked if you would still like to meet with us. Although you sent a status request on April 11, 2019, via email, you have not contacted this office to schedule a meeting. In HQ H229993, the Comfy Critters at issue are described as follows: 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. The reconsideration request provides the following additional information: The Comfy Critter consists of the wearable head of a stuffed cartoon character that is connected to the character’s “body,” as well as a cape that includes mitts designed to resemble the character’s paws, hooves, etc., depending on which character the toy represents. When the “body” of the character is folded up and enclosed in the hood to represent a reasonably full-figured depiction of the character, the product provides the same amusement as a traditional stuffed animal otherwise would. When the product opens into a hooded cape with mitts resembling paws, etc., it allows children to actually wear or “become” the character, further encouraging imaginative mimetic play as an alternative to traditional stuffed animals. The cape portion is 100% polyester chenille fleece and, when opened, measures 36” x 47”. The images below, which depict select articles of the subject merchandise, were captured from the Comfy Critters website on April 22, 2019:

https://www.mycomfycritters.com In HQ H229993, U.S. Customs and Border Protection (“CBP”) classified the subject merchandise in heading 6307, HTSUS. Specifically, the Comfy Critters were classified in subheading 6307.90.98, HTSUS, which provides for: “Other made up articles, including dress patterns: Other: Other.” In your reconsideration request, you contend that this classification is incorrect, and that the Comfy Critters are properly classified in heading 9503.00.0071, 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: Other: Labeled or determined by importer as intended for use by persons: Under 3 years of age.” As a preliminary matter, the subject Comfy Critters can only be classified in heading 6307, HTSUS, if they are not more specifically classifiable in heading 6301, HTSUS. See EN 6307 (“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.”). Heading 6301, HTSUS, applies to blankets and traveling rugs. In your reconsideration request, you present several arguments opposing classification of Comfy Critters as other made up articles of heading 6307, HTSUS. You contend, for example, that the utilitarian features of Comfy Critters, including the blanket and pillow, directly contribute to and enhance the amusement value of the article. You further contend that the “blanket” and “pillow” components are of limited use and the product is more appropriately classified as a toy under heading 9503, HTSUS. You also cite to United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2nd 373, 337 (1976) to explain that under the Carborundum factors, the principal use of Comfy Critters is as a toy. Specifically, Comfy Critters feature bright colors, three-dimensional representations of known cartoon characters and caricatures of animals that appeal to children and inspire play. The articles include a head, torso, paws or hooves, and a tail support its principal use as a toy. You state that the advertising suggests that parents, children, and gift-buyers have an expectation that Comfy Critters will be used by children principally for amusement. Additionally, Comfy Critters are sold primarily in toy stores, children’s gift stores, and educational stores, rather than bedding stores, and the use of the pillow and blanket feature is limited. In your opinion, Comfy Critters advertising supports the principal use of as a toy and any reference to a pillow or blanket is incidental to the principal use as a toy. The products are also displayed alongside other toys depending on the theme or interest. You reiterate that Comfy Critters are principally used for the purpose of amusement and note that the price of Comfy Critters is comparable to other similar toys such as Pillow Pets and Pillow Chums. You also cite to Comfy Critters participation at the 2017 New York Toy Fair as evidence of the article’s recognition in the trade as a toy. Additionally, you argue that Comfy Critters are not classifiable under heading 6307, HTSUS, or elsewhere in Section XI because the article is classified under 9503, HTSUS, and thus excluded by Chapter 95 Note 1(t). You remark that heading 6307, HTSUS, is a basket provision that is reserved only for articles that are not covered elsewhere in the tariff, and, because Comfy Critters are covered by heading 9503, HTSUS, then heading 6307, HTSUS, is inapplicable. You also articulate that Chapter 95 Note 1(v) is inapplicable because the utilitarian value, namely the blanket and pillow feature, of Comfy Critters is merely incidental to the amusement value because it enhances the entertainment offered by the article. We disagree that these considerations remove Comfy Critters from the scope of heading 6307, HTSUS. As stated above, the physical characteristics of the product are unchanged. Comfy Critters are shaped like a blanket and include a three-dimensional animal’s head with facial features such as eyes, nose, ears, snouts, etc. Two of the corners of the blanket have “paws.” As stated in HQ H229993, under the HTSUS, toys that represent animals and non-human creatures must be a full or reasonably full-figured depiction of the animal or creature they seek to represent. Further, this figure must be a soft, sculpted edition or an articulation in three dimensions of the head, torso, and appendages of the character being portrayed. We find that Comfy Critters are not reasonably three-dimensional representations of the creature or animal it was designed to resemble. While the three-dimensional heads are visible when the article is rolled up, Comfy Critters do not have clearly defined appendages in the “closed pillow” state and only have two paws when in its open, or blanket, state. In its open state, the blanket portion is that of a novelty blanket and the creature or animal head is essentially flat. To this extent, the characterization of Comfy Critters as toys is incorrect, and it does not warrant classification under heading 9503, HTSUS. We recognize that Comfy Critters are now sold at toy stores, children’s stores, educational stores, and in Walmart. While the market has since expanded from just online sales, we remain of the observation in HQ 963284, dated June 12, 2001 that “the appearance of the product in a toy store does not automatically make it a toy, for tariff purposes.” Moreover, the environment of the sale remains unchanged. The Comfy Critters website reads: “It’s a blanket, it’s a wrap, it’s a pillow, it’s a cap!” and “Transforms from a pillow, to a blanket, a wrap, or a cap!” Reviews online continue to demonstrate the article’s use as a pillow, blanket, and a cape to wear. Under these circumstances, we find the channels of trade and environment of sale to be consistent with that of made-up articles under heading 6307, HTSUS. It appears that Comfy Critters marketing has more recently included the term “pet” to suggest the article has toy-like qualities. However, these marketing materials also note that the article is a “blanket” and a “pillow.” Several online reviews suggest that children use the article as a blanket or as a cape, rather than as a toy. For these reasons, we find that there is no change in the expectation of the ultimate consumer and actual usage and our finding that the articles are classified under heading 6307, HTSUS, in HQ H229993 remains. In regards to recognition in the trade, as stated above, we find that the sale of Comfy Critters in toy stores to be unpersuasive. (See HQ 963284, supra.) Likewise, participation in the New York Toy Fair alone is not enough to qualify for classification as a toy under heading 9503, HTSUS. We consistently find online reviews and the marketing material to support several uses, including that of a blanket and pillow, in addition to the pet or toy use. As such, there are several uses for the article that are recognized in the trade. Furthermore, Comfy Critters retail for $20.00 or more, which exceeds the cost of most stuffed animals sold, which generally retail for $10.00 or less. You explain that the added cost is for the additional design features that allow for the blanket and pillow feature. While this may be true, the blanket and pillow features are utilitarian in nature and do not qualify for consideration as a toy under heading 9503, HTSUS, but rather as other made-up articles under heading 6307, HTSUS. Further, as articulated in HQ H966484, dated August 12, 2003, is our position that the amusement requirement means that toys should be designed and used principally for amusement. As evidenced by the advertisements and reviews, Comfy Critters are a pillow and blanket and any amusement is incidental to those features. For similar reasons, we are not convinced that Comfy Critters fall outside the scope of heading 6307, HTSUS, simply because their use as a pillow and blanket is claimed to be limited and that the pillow and blanket features are incidental to the amusement value. Note 1(v) to Chapter 95, HTSUS, excludes toys from heading 9503, HTSUS, if they are articles of apparel or similar item that have a utilitarian function. Based on the foregoing, we find that Comfy Critters are novelty articles that contain multiple utilitarian functions. Lastly, the other rulings cited in your reconsideration request all involve distinguishable merchandise or otherwise do not preclude classification of Comfy Critters in heading 6307, HTSUS. You cite to New York Ruling Letter (“NY”) NY N241901, dated May 29, 2013, and NY N017790, dated October 9, 2007, in support that Comfy Critters should be classified in heading 9503, HTSUS. However, these rulings concern stuffed animals that lack the pillow and blanket feature of the subject article. Comfy Critters can be distinguished from Pillow Pets addressed in HQ H161002, dated March 30, 2012, where Pillow Pets were found to be reasonably full-figured depictions that include three-dimensional heads, torsos, and appendages of the creatures they represent. By contrast, the subject Comfy Critters lack the torso and all of the appendages of the creatures they portray and only feature a three-dimensional head when folded in the pillow state. Similarly, Pillow Chums at issue in NY N067495, dated July 21, 2009, were found to feature a stuffed three-dimensional plush animal, with a clearly defined head and paws, which can open to become a pillow or cushion. The subject Comfy Critters, however, do not have a clearly defined head and appendages when open in the blanket state. In contrast, we note that articles similar to Comfy Critters are classified under heading 6307, HTSUS. For instance, Plush Character Baby Blankets resembling Mickey and Minnie Mouse and Sleep Silkies resembling turtles and other animal designs are classified in heading 6307, HTSUS, as addressed in NY H89496, dated April 4, 2002, and NY H85985, dated December 20, 2001, respectively. Accordingly, we remain of the position that Comfy Critters are classified as “other made up articles,” in heading 6307, HTSUS, and for all the aforementioned reasons, we hereby affirm HQ H229993. As determined in that ruling, Comfy Critters are specifically classified in subheading 6307.90.98, HTSUSA (Annotated), which provides for: “Other made up articles, including dress patterns: Other: Other: Other.” As such, the duty rate is 7% ad valorem. Sincerely, Alice Kipel, Executive Director Regulations and Rulings