The tariff classification of stuffed pillows from China.

N300569 October 10, 2018 CLA-2-94:OT:RR:NC:N4:433 CATEGORY: Classification TARIFF NO.: 9404.90.2000 David Prata CVS Pharmacy Inc. 1 CVS Drive Mail Code 5055 Woonsocket, RH 02895 RE: The tariff classification of stuffed pillows from China. Dear Mr. Prata: In your letter dated August 16, 2018, you requested a tariff classification ruling. A description of the merchandise and a sample were provided. CVS item number 203829 identified as the “Valentine Poops Flatties” are stuffed pillows in the shape of the poop emoticon in either pink or brown. The face of each pillow is decorated by sewing in an emoji style. Each pillow is stuffed with polyester fill and has an outer shell made of polyester, measuring approximately 17” high, by 16” wide, by 5” inches thick. This office notes that the term “pillow” is not defined in the Harmonized Tariff Schedule of the United States (HTSUS) or the Explanatory Notes (ENs) to the HTSUS. When terms are not defined in the HTSUS or the ENs to the HTSUS, they are construed in accordance with their common and commercial meaning – Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). The Online Merriam-Webster Dictionary defines a “cushion” at 1: as a soft pillow or pad usually used for sitting, reclining, or kneeling; a “throw pillow” at 1: as a small pillow used especially as a decorative accessory; and a “pillow” at 1: as a support for the head of a reclining person, especially, one consisting of a cloth bag filled with feathers, down, sponge rubber, or plastic fiber. To expand on the meaning of “throw pillow” the Online US Oxford Dictionary defines a “throw pillow” as a small decorative pillow placed on a chair or couch. Wikipedia defines a [“throw pillow and toss pillow” as small, decorative type of pillow, which is usually placed on sofas or armchairs but are also frequently used on beds, day beds and floors. Throw pillows and toss pillows serve both an aesthetic and a functional purpose.”] Still, for industry or commercial purposes the terms “cushion pillow” or “throw pillow cushion,” are used for describing and selling a product commonly referred to as a “throw pillow.” When looking at the furniture and bedding industry “many interior designers agree that certain sizes of throw pillows work best for certain situations, even though there are a wide variety of styles and sizes of decorative pillows. For throw pillows, the standard sizes range from 16 inches square to jumbo 24 inches square, and for round pillows, the standard size is 14 inches in diameter – cushionsource.com.” Although the “throw pillow” can be regarded as an [accent pillow] too, there is nothing in the Legal Notes to Chapter 94 or the terms of heading 9404 of the HTSUS, or the ENs to Chapter 94 with its heading of 9404, restricting throw pillows to standard sizes for furniture and bedding purposes. This is in contrast to pillows used for sleeping purposes, resting one’s head, which are manufactured and sold in standard sizes. Furthermore, see Infantino, LLC v. United States, Slip Op 14-155, dated December 24, 2014, referencing Buaerhin Technologies Ltd. Partnership v. United States, 110 F.3d 744 (Fed. Cir.1997), at 776-778, “rejecting the argument that HTSUS heading 9404 was limited to items whose primary purpose is to facilitate sleeping or napping.” This office is of the opinion that the “Valentine Poops Flatties” fall within the plain language of heading 9404, HTSUS. Accordingly, the decorative throw or accent pillows are classifiable in subheading 9404.90, HTSUS. See New York ruling number N295248 dated April 4, 2018. To answer your inquiry whether the merchandise concerned is a “toy,” and therefore classifiable in heading 9503 of the HTSUS, see New York ruling number N250031 dated February 21, 2014. In N250031, CBP found that in order to be classified as a toy, the item “must be full figured or reasonably full figured, and have a depiction of the animal or creature it seeks to represent, and that the figure must be a soft, sculptured edition or an articulation in three dimensions of the head, torso and appendages of the character being portrayed.” Further, the merchandise concerned is not principally designed for amusement, but rather to be used as an article of bedding to be placed on a bed, chair, sofa or the like. Because the merchandise concerned is not full figured or reasonably full figured, and is an article of bedding, it cannot be classified as a toy. The applicable subheading for the “Valentine Poops Flatties,” will be 9404.90.2000, 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.” The rate of duty will be 6% 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 World Wide Web at https://hts.usitc.gov/current. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Dharmendra Lilia at dharmendra.lilia.cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division