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HQ 964243




September 18, 2001

CLA-2 RR:CR:TE 964243 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.2000

Mr. Richard Tinelli
Mastercargo, Inc.
161-15 Rockaway Blvd
Jamaica, New York 11434

RE: Stuffed Pillow-like Article in Form of a Flower

Dear Mr. Tinelli:

This is in reply to your letter, dated May 15, 2000, to the U.S. Customs Service office in New York, requesting, on behalf of your client, Brod Inc., a binding ruling concerning the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a stuffed pillow-like object shaped like a flower. You submitted a sample for examination. Your letter, together with the sample, was referred to this office for reply.

FACTS:

The merchandise, referred to as “Flower Pillow” (your style number 87547), is a stuffed pillow-like article designed and shaped to resemble a flower. It is manufactured in China. The item has been cut to the shape of a flower with indentations creating the petals. The flower’s outer shell is a polyester pile fabric. It measures approximately 16 inches in diameter. It is stuffed with a polyester fiberfill.

ISSUE:

What is the classification for the flower shaped stuffed article?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 GRIs may then be applied. The Harmonized Commodity Description and Coding System, Explanatory Notes (ENs), represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

The HTSUS provisions under consideration are as follows:

Other made up articles, including dress patterns:

Other:

6307.90.99 Other

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:

9404.90.2000 Other

9503 Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

9503.90.00 Other

Chapter 95, HTSUSA, covers toys of all kinds, whether designed for the amusement of children or adults. Although the term “toy” is not specifically defined in the tariff, the ENs to Chapter 95, indicate that this chapter covers toys of all kinds whether designed for the amusement of children or adults.

The court in United States v. Topps Chewing Gum, Inc., 58 CCPA 157, C.A.D. 1022, 1971), found that an article may be a toy if it meets the following definition:

While they may lack the material features to be a manipulative plaything as such, and will likely be used as an interesting or novelty decorative utility object, it is clear that the article, with its cartoon-like, comical appearance, or scary look is designed primarily for amusement purposes and as a source of frivolous entertainment for children and adults. In other words, its appearance generates the same type of emotional reaction one derives from playing with objects commonly recognized as toys and this use is its principle use.

Where merchandise might have another purpose in addition to providing amusement, the primary purpose of the item must be its amusement value in order to be classified as a toy. See HQ 960479, dated November 24, 2000 (the primary use of a pillow-like article designed to resemble various animals and creatures is in its amusement value and not in its use as a pillow-like object); HQ 958785, dated July 26, 1996 (a “Lean On Me Activity Bolster” for a small child was properly classifiable in heading 9503 because the primary use of the item was as a toy); and HQ 951309, dated April 26, 1993 (the primary value of M & M novelty figures designed as lids for containers filled with candy was the play value; the utilitarian aspect of the merchandise is temporary and incidental to the amusement factor).

It is Customs view, based on examination of the sample that the primary purpose of the “Flower Pillow” is not to amuse. It does not have a cartoon-like, comical appearance or scary look and its appearance does not generate an emotional reaction. In addition, while some might find the pillow aesthetically pleasing, it is not amusing or entertaining. We note that no marketing information was provided. For these reasons it is Customs opinion that the “Flower Pillow” does not meet the requirements needed to be classified as a toy under heading 9503, HTSUSA.

Having excluded classification under heading 9503, a determination must be made as to whether the subject merchandise is classifiable under heading 9404 as a pillow, or as an other made up article in heading 6307, HTSUSA.

A pillow is defined by Webster’s Third New International Dictionary, Unabridged (1986) as “1 a: something used to support the head of a person resting or sleeping; esp.: a sack or bag made typically of cloth and filled with a soft or resilient material (as feathers, down, hair, sponge rubber): CUSHION.”

In defining cushions and pillows, The Random House Dictionary of the English Language, the Unabridged Edition (1983) states at p. 357 “CUSHION, PILLOW, BOLSTER agree in being cases filled with a material more or less resilient, intended to be used as supports for the body or parts of it. A CUSHION is a soft pad used to sit, lie, or kneel on, or to lean against: a number of cushions on a sofa; cushions on pews in a church. A PILLOW is a bag or case filled with feathers, down, or other soft material, usually to support the head: to sleep with a pillow under one’s head.”

Size specifications are neither explicitly outlined in the terms of heading 9404, HTSUSA, nor the Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), to that heading. It is the opinion of this office that so long as pillows are sufficient in size and stuffing to be capable of providing support, classification in heading 9404, HTSUSA, is not excluded.

When pillow-like objects have not been of sufficient size or stuffing to offer support, or where the construction is such that the shape or material would make it uncomfortable or unlikely to be used as a support for the body, Customs has classified these articles in heading 6307, HTSUSA. See NY 883688 (March 24, 1993), regarding pillows with battery operated lights on the front; HQ 951533 (June 17, 1992), regarding a “Beast” pillow; HQ 951737 (June 8, 1992), regarding a “Belle” pillow, and HQ 964922 (May 22, 2001), regarding a “Butterfly” pillow. In HQ 086646 (June 8, 1990), Customs ruled that pillows shaped like motorcycles and punching bags were not designed to offer support to the sleeper. Where a stuffed article is of a small size, Customs has found that the article is not classifiable in heading 9404, HTSUSA. See HQ 087316 (July 9, 1990), regarding a ring bearer’s pillow, a baby’s sleeping sign and a tooth fairy pillow; HQ 086056 (March 1, 1990), finding a 6 inch sachet-type pillow is not classified in heading 9404, HTSUSA; HRL 046377 (October 19, 1976), ruling that a 4” x 6” tooth fairy pillow is too small to support the head or body and therefore may not be classified as a pillow, cushion, mattress or similar furnishing.

In the instant case, the size, shape and construction of the “Flower Pillow” is such that it could be used for support, as for example, if placed along the spine of a chair to provide support to the lower back. The filling as such, does not merely provide shape to the pillow, but also offers support.

Heading 6307, HTSUSA, is a basket provision wherein a variety of merchandise is classified when no other heading more specifically provides for given merchandise. This is not the situation in this case. The subject "Flower Pillow" is more accurately described within the provisions of heading 9404, HTSUSA.

HOLDING:

The subject "Flower Pillow" with an outer shell made of 100% polyester woven fabric and stuffed with a polyester fiberfill is classifiable in subheading 9404.90.2000, 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: Pillows, cushions and similar furnishings: other. The general column one rate of duty is 6 percent ad valorem. There is no textile quota category applicable to this provision.

Sincerely,

John Durant, Director

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