Friday, April 18, 2014

Why I Like Customs Law: Dog Toy Edition

I have lots of friends and colleagues who are what I sometimes call "regular lawyers." These smart men and women work in fields like personal injury, labor and employment, corporate transactions, criminal defense, and family law. Good for them. They have interesting work that often helps to solve real problems that impact real people or companies. But, they never get to decide whether a dog toy might also be entertaining for humans. That's what I do.

This is not to say that customs work does not solve real problems for real companies and individuals. We recently helped an individual mitigate the seizure of currency he failed to declare when entering the United States. A couple years back, I helped a U.S. Army Reservist change the rules that prevented him from sitting for the customs broker license exam. More generally, I help companies avoid and solve problems relating to legal compliance in their supply chain and I am more than happy to do that. But, a good classification question is always fun.

The reason I am waxing poetic about being a customs nerd is HQ H240490 (Feb. 10, 2014). This ruling results from an Application for Further Review regarding ten interactive toys designed for human and dog play. We are only interested in the legal analysis, so I am not going to go through the design and features of all 10 of the toys involved. As an example, the first item was called "Paraflight," which was described as disc constructed of a flexible rubber ring covered in nylon material. Paraflights come in 6.5-inch and 9.5-inch diameters. It is basically a flying disc of a non-Frisbee brand [Note: my trademark lawyer friend advised me to say that.] intended to be thrown by a human and retrieved by a dog. That seems like fun for both parties involved.

The importer of the Paraflight entered it classified in HTSUS item 6307.90.75, which covers "Other made up articles, including dress patterns: Other: Toys for pets, of textile materials." That classification carries a rate of duty of 4.3%.

Some smart person at the company or its lawyer recognized that throwing a non-Frisbee brand flying disc to a dog is fun for people too. So, why isn't this a toy for the human thrower as much as it is a toy for the canine catcher? If so, it would be classifiable in 9503.00.00 as a toy and would be duty free.

That is a great issue and one that is a classic of the kind that customs lawyers love to sort out. It is similar to a question I handled about whether collapsible textile dog houses are classified in Heading 4202 essentially as suitcases or backpacks for carrying dogs.

The problem for the importer is pesky legal Note 5 to Chapter 95, which says that Heading 9503 does not cover articles which, "on account of their design, shape, or constituent material, are identifiable as intended exclusively for animals, for example, 'pet toys' (classification in their own appropriate heading)." A similar exclusion is in the Explanatory Notes. As Homer would say, "D'Oh."

Customs and Border Protection started its analysis following the importer's suggestion that Heading 9503 is a principal use provision. As such, the question becomes whether single most common use in the United States for products of the same class or kind is exclusively to amuse pets. If so, the note prohibits classification in Heading 9503.

CBP noted that the Paraflight is unlike a Frisbee-brand flying disc in that it is completely covered in textiles and has a rubber gripping ring around the diameter. These features indicate that the disc is designed for easy retrieval by a dog. The merchandise was also marketed and sold a pet toys. In what might prove to be a fascinating legal development, Customs cited Amazon product reviews to indicate that customers describe the products in terms of how well their dogs like the products. Based on all of this, Customs found that the various toys were all exclusively for the enjoyment of dogs and excluded from 9503. Apparently, the result might have been different had an Amazon reviewer said "My kids love throwing the Paraflight to our dog!" or had CBP found a picture of two people playing catch with one.

The decisive point came when Customs said: "Protestant's argument that any interactive pet toy is primarily for the amusement of humans would do away with the distinction--nearly all pet toys are designed for some interaction between pets and their owners, even if it is as small an interaction as the owner unwrapping the item and giving it to the pet. Their focus is on what amuses the pets and not on whether the humans enjoy playing with them."

The problem with that reasoning is that is goes too far in the other direction. Under this analysis, no toy designed to involve a pet in play with a human can ever be a 9503 toy. That does not seem to make sense either. Keep in mind that there is a whole world of competition in which dogs catch regular Frisbee-brand flying discs. Are they no longer toys for humans?

The problem is that "exclusively" cuts both ways. If the product has some features or non-fugitive uses that indicate it amuses humans, then it is not exclusively for the use of pets. To the extent the Paraflight cannot be used without a human thrower and given the relatively self evident fact that people are amused by their pets, it strikes me this is a toy that is not exclusively for the amusement of pets. Similarly, if it is an apparently human-centric toy has some pet-friendly features, it is not just for humans. There is a middle ground in which people play with their pets for the amusement of both species. They way I read Note 5 to Chapter 95, that middle ground is not excluded from 9503.

For example, and for your human amusement, behold the hamster ball race:

Now you tell me, who is more amused, the hamster or the kids? I say that ball and track configuration is a toy for humans despite being designed for hamsters.


g.jayaprakash said...

Amusing.Customs sleuths are the same species every where. How ever interpretation changes when one change the side.

D. Jude Charlery said...

Interesting case. Over my sixteen years as a classification resource person we have come across similar cases over the years. In every case where the lines werre blurred we defaulted to "principle use". In effect, we would have arrived at the same conclusion here where both owner and pet got enjoyment.