Ruling of the Week 2015.1: Boo Boo Packs

This is the first “Ruling of the Week” for 2015. I’m going to do my best to get 52 of these to you this year. “My best,” of course is not a guaranty. I am already a week behind. So sue me.

Today’s ruling is HQ H253885, which is technically still a proposed ruling. It is in the Customs Bulletin and Decisions, Volume 49, dated January 1, 2015.
The merchandise involved is the “Boo Boo Pack,” which is a plush fabric animal (e.g., a teddy bear or adorable hippo) that is designed to accommodate a gel pack that can be either heated or frozen. The hot or cold animal is used to treat minor injuries in children (and probably to preserve the nerves of their parents). The animals are imported with the gel packs. This proposed ruling impacts a number of rulings on similar products with different styles of inserts. One insert was a mixture of rice and lavender and must have been intended for someone other than me. Others were combinations of water and propylene glycol.
In the previous rulings, Customs and Border Protection found that the proper classification was in HTSUS item 9503.49.00 as toys representing non-human creatures. Customs is having second thoughts about that.
The problem for Customs is that several court cases have held that “toys” are designed and used for amusement and play rather than for some practical purpose. A product is only a toy when amusement is not incidental to the utilitarian purpose.
The Boo Boo Pack and its kin have a utilitarian purpose of providing pain relief. According to Customs, that is enough to preclude classification in Heading 9503. Treating “toys” as a classification controlled by use, Customs also applied the so-called Carborundum Factors to the imported items. Customs noted that the presence of the opening for the gel pack indicates a use separate from the plush toy. Furthermore, the Boo Boo Packs are often sold as cold packs along with health and person care items, not alongside toys. Interestingly, Customs again noted that consumer reviews on Amazon.com indicate real world use as hot and cold packs. Consequently, Customs held that the Boo Boo Packs are not toys.
That, of course, leaves open the question of how to classify them. We still have two disparate items: the plush animal and the gel insert. Assuming the plush animal is not a toy, it would be independently classifiable as an “other made up article” in Heading 6307. The gel insert for the Boo Boo Pack is classifiable in Heading 3824 as a chemical product not provided for elsewhere. Neither of those headings fully describe the product, so Customs tried to apply the composite goods rule of GRI 3(b) to classify the item based on the component that imparts the essential character.
What do you think that would be?
It turns out that CBP believes both the plush animal and the insert are equally as important to the nature of the product. This was because the pleasing shape and feel of the plush animal facilitates soothing the child and might encourage prolonged application of the heat or cold. The gel insert, on the other hand, provides that heat or cold. Thus, the components are equally as essential.
That conclusion means that the classification is determined by GRI 3(c) and is the last in numerical order. That would be 6307.90.98 (7%) as an other made up article. Coming from the duty free provision for toys, that is a kick in teeth for which a cold pack shaped like a hippo might help.

Comments

Anonymous said…
Customs should re-read the CIT Infantino decision issued on Xmas Eve to disabuse itself of the notion that a utilitarian purpose prima facie precludes classification as a toy.
Jan 12, 2015, 9:05:00 AM
Larry said…
Thanks for that insightful comment. I think the CIT would tell you that the play mat remained a play mat even when used in a shopping cart, making any other features subsidiary to amusement.
Jan 12, 2015, 10:31:00 AM
Felipe said…
thank you very much for your contribution to international trade, Felipe, from Argentina
Jan 12, 2015, 5:13:00 PM
Felipe said…
thank you very much for your contribution to international trade, Felipe, from Argentina
Jan 12, 2015, 5:14:00 PM
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