Application for Further Review of Protest No. 2506-08-100023; Tariff Classification of Shopping Cart Cover

HQ H031397 July 27, 2010 CLA-2 OT:RR:CTF:TCM H031397 ASM CATEGORY: Classification TARIFF NO.: 9404.90.20 Port Director U.S. Customs and Border Protection 9777 Via de la Amistad San Diego, CA 92154 RE: Application for Further Review of Protest No. 2506-08-100023; Tariff Classification of Shopping Cart Cover Dear Port Director: This is in reference to a Protest and Application for Further Review (AFR), filed on behalf of Infantino, LLC, regarding the classification of certain textile shopping cart covers under the Harmonized Tariff Schedule of the United States (HTSUS). Samples were received by Customs and Border Protection (CBP) and have been examined by this office. In addition, CBP granted a meeting on November 9, 2009, pursuant to the request of Counsel and the Importer. CBP has also considered two additional written submissions from counsel dated October 1, 2009, and November 18, 2009. FACTS: The subject article is marketed under the name “Shop & Play”® and is made of soft, colorful cotton fabric (65% polyester, 35% cotton) printed with a barnyard theme. The entire panel measures approximately 45 inches long x 19 inches wide and contains a polyester batting. A detachable crescent shaped pillow has hook and loop fasteners and measures approximately 15.5 inches long x 5 inches wide. It provides a cushioned back-rest when the article is in use as a shopping cart cover. Also attached to the “Shop & Play” are various items such as a rattle cushion, crinkle cushions, and a bi-fold cushion book with words, printed images, and a mirror. These items are sewn to knit fabric strips having hook and loop fasteners which allow for their removal. Two square shaped cut-out openings, which have flip-up cushioned panels sewn along one seam at the top and having hook and loop closures, are designed to serve as convertible leg openings. A removable woven strap, which threads through two openings and has a single plastic buckle for size adjustment, is designed to secure around the waist of the infant/young child while sitting in the shopping cart. Two pockets are formed at one end of the article by a single panel of fabric, sewn at the lower and side edges, with a seam at the center of the panel. This two pocket panel is designed to drape behind the child and along the back of the cart’s basket, serving as a storage area. The other end of the article has two fabric straps with hook and loop tabs that are affixed to the underside of the fabric. These straps are designed to allow the end of the fabric to be securely wrapped around the shopping cart handle. A “Warning” notice against use of the article by attaching it to a crib, playpen, or car seat is printed on the front and back of the retail packaging. The warning notice further states that the article is “Intended for use in shopping carts only when child can sit upright without assistance.” The subject merchandise was entered on January 20, 2007. CBP issued a Notice of Action to Infantino, LLC on November 8, 2007, which stated that “if all detachable toys were removed, the shopping cart cover would still function as a shopping cart cover”. On February 29, 2008, CBP liquidated the merchandise under subheading 9404.90.2000, Harmonized Tariff Schedule for the United States Annotated (HTSUSA), 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: Other”. Duty was assessed under the general column one rate at 6 percent ad valorem. On April 2, 2008, the importer filed a Protest and Application for Further Review (AFR) on a single entry (321-54501706), asserting that the subject merchandise is properly classified as a “toy” under subheading 9503.00.0080, HTSUSA, duty free under the general column one rate. The importer argues that the “Shop & Play” is designed for and principally used to amuse a child on the floor or ground as a play mat and while seated in a shopping cart. ISSUE: Whether the “Shop & Play”® shopping cart cover is classified in heading 9503, HTSUS, as a toy, or in heading 9404, HTSUS as an article of bedding and similar furnishing. LAW AND ANALYSIS: Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further review of the protest is warranted pursuant to 19 CFR §§174.24(b) and 174.25 as the decision protested is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Specifically, protestant alleges that the decision is inconsistent with CBP’s classification of “play mats” as toys of heading 9503, HTSUS, and has cited to the following Ruling Letters: PD F82618, dated February 23, 2000, New York Ruling Letter (NY) B880571, dated January 23, 1997, and Ruling Letter DD 803341, dated November 4, 1994. Classification under the 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 following provisions are under consideration in classifying the subject article: 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: 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 … Chapter 95, Note 1(v), specifically excludes bed linen and similar articles having a “utilitarian function”. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither 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, 35128 (August 23, 1989). The EN for 9404, specifically provides that the heading covers articles of bedding and similar furnishing which are stuffed with any material, e.g., synthetic fibers, including quilts for baby-carriages. The term “toy” is not defined in the HTSUS. However, the general Explanatory Note EN for Chapter 95 states that this “Chapter covers toys of all kinds whether designed for the amusement of children or adults.” Although nothing in heading 9503 or the relevant Chapter notes explicitly states that an item's classification as a "toy" is dependent upon its use, the Court of International Trade has found inherent in various dictionary definitions of “toy” the notion that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality. See Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). Because heading 9503, HTSUS, is, in relevant part, a principal use provision, classification under this provision is controlled by the principal use "of goods of that class or kind to which the imported goods belong" in the United States at or immediately prior to the date of importation. Additional U.S. Rule of Interpretation 1(a), HTSUS. See also Primal Lite, Inc. v. United States, 182 F.3d 1362, 1365 (Fed. Cir. 1999). In order to determine whether an article is a “toy” within the meaning of Chapter 95, HTSUSA, it is necessary to compare whether the primary purpose is to amuse or to provide a utilitarian/functional quality. See HQ 966046, dated May 16, 2003 and HQ 963638, dated November 2, 2001. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court 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 is incidental to the amusement." Therefore, if the level of play value and amusement of the article is not sufficient to constitute its principal use, the article is not a toy. See United States v. Topps Chewing Gum, Inc., 440 F.2d 1384 (1973); HQ 229863, dated February 10, 2004. In determining whether the principal use of a product is for amusement, and thereby classified as a toy, Customs considers a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels, class or kind of trade in which the merchandise moves; (4) the environment of the sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed); (5) usage, if any, in the same manner as merchandise which defines the class. See United States v.Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976). The general physical characteristics of the subject product demonstrate that it has been designed and tailored for use in a shopping cart. The actual configuration of straps, leg openings, and fitted/padded textile handle are evidence that the article has been carefully designed and tailored in such a way as to fit uniformly over a shopping cart handle and front interior basket, thereby forming a secure, padded seat with leg opening flaps to safely contain an older infant inside the shopping cart. The adjustable seat belt attached to the cover provides an additional security feature to the design by fitting securely around the infant’s waist with the object of preventing the infant from falling out of the cart. In fact, this feature is clear evidence that the primary purpose of the article is to safely restrain an infant while in a shopping cart. This factor favors classification in heading 9404, HTSUS. The expectation of the ultimate purchasers for the “Shop & Play”® is for utilitarian use as a shopping cart cover. This is evidenced by the fact that the article features a seat belt and padding for the shopping cart handle along with a well padded interior. The seat belt and padding are what a caregiver would expect of an article designed to safely restrain an infant while in a metal shopping cart. Furthermore, the subject article is exclusively marketed through channels of trade as a “shopping cart cover” not as a “toy”. See “www.infantino.com”. These factors favor classification in heading 9404, HTSUS. The environment of sale for this product also demonstrates that the subject article’s primary purpose is utilitarian. For instance, the Infantino ® website designates the following product categories: Toys, Carriers, Soft Travel, Shopping Cart Covers, and Puzzles. The subject article is listed as a shopping cart cover not as a toy. The “Shop & Play”® website also notes that the article has such practical features as “Roomy storage pockets” for organizing and storing the caregiver’s articles, i.e., “phone, keys or baby’s favorite toys”. Clearly, the marketing and design focus for this article is as a utilitarian product to keep a baby safe and the caregiver organized during shopping trips. This favors classification in heading 9404, HTSUS. The Infantino® website emphasizes that the “Shop & Play”® is for use at the store with a “Padded, wraparound design” for use in a shopping cart. In addition, the “Warning” label on the retail packaging specifically states that the product is “Intended for use in shopping carts only when child can sit upright without assistance” (emphasis supplied). The “play” value that the ultimate purchaser might expect is therefore limited due to safety concerns. This “Warning” label appears on the retail packaging on both the front and back of the box. Accordingly, while the packaging and marketing hint at use of the article as a play mat, there is more marketing emphasis on the utilitarian purpose and safety features of the merchandise. In fact, the five entertainment features are removable and therefore secondary to the utilitarian purpose of the article. Furthermore, the pillow is called a “headrest” which emphasizes its use to support an infant’s head and neck when sitting in the shopping cart. The packaging also highlights the “roll-up” feature of the article which is in keeping with the “on-the-go” nature of shopping. In addition, the washing instructions highlight the utilitarian use of the article for shopping by talking about “being ready for the next trip to the store.” Each of these factors favors classification in heading 9404, HTSUS. We do not agree with the protestant’s assertions that CBP has classified similar merchandise as toys in heading 9503, HTSUS. Each of the following rulings can be distinguished because the rulings cited by protestant classified articles that were principally designed to be laid flat on the ground as amusing “playmats”. Therefore, CBP classified these articles as “toys” of heading 9503, HTSUS. See Ruling Letter PD F82618, dated February 23, 2000 (“Baby’s Playmat”); NY B80571, dated January 23, 1997 (“Baby Activity Playmat”); Ruling Letter DD 803341, dated November 4, 1994 (“Activity Mat”); NY L87824, dated September 29, 2005 (toy chest that doubled as a play mat); NY 875598, dated July 15, 1992 (“Ruggie Bear” textile mat in shape of a bear); NY R04595, dated August 14, 2006 (“Animal Planet Play Mat”); NY N004754, dated January 11, 2007 (child’s play mat with miniature plastic horse); NY I88424, dated November 26, 2002 (circular shaped toy play mat); NY B7577, dated August 5, 1997 (quilted play mat). Such “playmats” are distinguishable from the “Shop & Play”® which is not principally intended to amuse but has been designed for utilitarian use as a “shopping cart cover”. The baby activity “playmats” for which CBP has issued rulings have no adjustable seat belts or restraints and have all been solely designed for one purpose: As a toy that allows infants to spend time lying on their backs or tummy while on a surface that features highly stimulating and amusing interactive elements that engage the infant. In contrast, the “Shop & Play”® features padding, cushioning, cut-out flaps for legs, and a safety belt, i.e., elements that are primarily designed to protect and safely restrain an infant while riding in a metal shopping cart. While we recognize that the “Shop & Play”® has some amusing features incorporated into the design, this is outweighed by the utilitarian design and purpose of the article which is intended to provide for the safety and comfort of infants while in a shopping cart. Thus, we conclude that the merchandise was properly classified in heading 9404, HTSUS, as “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: … ”. HOLDING: At the time of entry, the subject article identified as the “Shop & Play” was properly classified in subheading 9404.90.20, HTSUSA, 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: Other.” The general column one rate of duty at the time of entry was 6 percent ad valorem. You are instructed to DENY the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division