The tariff classification of a plush toy for pets and humans from China

N105939 May 28, 2010 CLA-2-95:OT:RR:NC:N4:424 CATEGORY: Classification TARIFF NO.: 6307.90.7500 Mr. George Ciarelli PetSmart Inc. 19601 N 27th Ave Phoenix, AZ 85027 RE: The tariff classification of a plush toy for pets and humans from China Dear Mr. Ciarelli: In your letter dated May 6, 2010, you requested a tariff classification ruling. Samples of two stuffed plush animal-shaped toys were submitted with your inquiry. Both items measure approximately 12” in height when sitting and represent the likeness of a dog (Chance) and cat (Lucky). Each animal has two paws containing squeakers. You state that the plush items are intended to be used by both pets and humans and that they conform to the safety requirements of the Consumer Product Safety Improvement Act (CPSIA). You also state that they are primarily designed to be used as collectibles and will only be sold at PetSmart retail stores during the holiday season. No advertising or marketing material was submitted for these products. You inquire whether the two stuffed animals are properly classifiable as children’s toys under Chapter 95 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the term "toy" is not defined in the tariff, the Explanatory Notes to Chapter 95 indicate that a toy is an article designed for the amusement of children or adults. It has been CBP’s position that the "amusement" requirement means that a toy should be designed and used principally for amusement of children or adults and should not serve a utilitarian purpose. The U.S. Court of International Trade has construed heading 9503, HTSUS, as a "principal use" provision within the meaning of Additional U.S. Rule of Interpretation 1(a), HTSUS, as it pertains to "toys." See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). Therefore, classification under the heading 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 the importation. In determining whether the principal use of a product is for amusement, and thereby classified as a toy, CBP considers a variety of factors including general physical characteristics, the expectation of the ultimate purchaser, channels of trade, and the environment of sale (accompanying accessories, manner of advertisement and display). Taking these factors into account, this office concludes that the two plush animals are not principally designed for the amusement of children or adults and are therefore not of the same class or kind as human toys. The general physical characteristics of many children and pet toys are similar and even in some cases almost indistinguishable. Moreover, the fact that the articles are sold exclusively at PetSmart retail outlets, which sells merchandise for pets, also distinguishes it from a class or kind of children’s toys. The retail selling price is also similar to that of other pet toys. In addition, the fact that the two plush animals meet the requirements of the CPSIA for human safety is also not persuasive. Since there are no standards for pet toys, many producers of pet toys are now requiring their vendors to meet the same requirements of human toys to ensure adequate safety for one’s pets. Even the wording on the hangtag leads one to believe they are not principally toys for children. While it does state, “Safe for children; ages 3 and up,” it is preceded by “Ingestion of this product can result in serious injury. Remove or replace toy if damage or separation is detected.” While some toys for children and pets may look similar, they are not interchangeable. Children’s plush toys given to dogs can be lethal if the stuffing is ingested. Since the instant samples are suitable for pets, it is implied that they are safe for pets as well. Since the two plush animals are not principally designed for the amusement of children or adults, they are not classifiable in Chapter 95 as human toys. The applicable subheading for the Chance and Lucky plush animal pet toys will be 6307.90.7500, HTSUS, which provides for “Toys for pets, of textile materials.” The duty rate will be 4.3% 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 http://www.usitc.gov/tata/hts/. 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 James Forkan at (646) 733-3025. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division