Ruling of the Week: An Inflatable (W)easel

I keep an eye on rulings from CBP with a focus on those that are slightly off kilter or entertaining to the 12-year old boy that still lives in my head. Cruising the most recent Customs Record, I saw that Customs and Border Protection had issued a ruling concerning the classification of a Giant Inflatable Weasel.

Alas, when I sat down to read the ruling, I found it actually concerned a giant inflatable easel. That is far less silly, but equally as illustrative. So, here is what we can learn from HQ H301988 (May 14, 2020).

The merchandise is a PVC inflatable easel. I do not know for certain that this is the same product, but based on the description, it seems to be. The image comes from Heathsong.com, which is mysteriously close to Plow & Hearth, the party that requested the ruling, so I am going with this being it. The product comes with four cans of paint, one brush, and four sponges.

Custom initially classified this item as furniture in 9403.70.4015 or 9403.70.8015, depending on whether the plastic was reinforced or laminated (the former) or not (the latter). 

The importer asked for reconsideration at CBP Headquarters and renewed its argument that this item is a toy classifiable in 9503.00.0073. The gist of the argument is that this easel is intended for and used as a creative plaything and has no other use.

Customs, however, noted that the Explanatory Notes to Chapter 95 state that "This Chapter covers toys of all kinds whether designed for the amusement of children or adults." Customs also put some text about the classification of toys in quotes after referencing the Explanatory Notes, but the language does not appear in the Notes. In reality, the language is taken from In Zone Brands v. U.S., the bottle topper case we recently discussed. 

The relevant language from In Zone Brands is about the overlap between child-friendly but otherwise utilitarian items and toys. In In Zone Brands, the Court said that "to classify every eye-catching, child-friendly article as a toy, simply because it enhances a child’s imagination, is to unacceptably blur the HTSUS headings defeating their purpose and leading to absurd results." The Court also noted that "when amusement and utility become locked in controversy, the question becomes one of determining whether amusement is incidental to the utilitarian purpose, or whether the utility purpose is incidental to the amusement."

With this in mind, CBP determined that the easel serves a mainly utilitarian function, namely to produce an easel for painting by a young child. Man, I hate this conclusion. Assuming that image is indicative of the real product, it seems clearly designed as a diversion for kids. It is not intended to produce lasting art. It appears that the paint is applied to a plastic sheet and then washed off with the included sponge, which indicates this is not really an art easel. It is more like a blackboard or whiteboard, which, by the way, are also not classified as toys because they are utilitarian rather than articles of amusement. 

That said, there is a range of products that can be considered easels. Taking a virtual stroll through Blick's Art Supply, it is easy to find that a professional artists easel might look like this:

There is also a full category of kids' easels with this as just one example:

These are not insubstantial structures. While I am not an artist, it strikes me that a defining characteristic of an easel would be that it securely holds the canvass or other surface on which the art is created. I am guessing (seriously, I don't know this to be true), that the plastic sheet on the inflatable easel moves with the breeze in a way that would make even a pre-teen Van Gogh cry. It is possible that an easel as unstable as this product is what made Edvard Munch scream. 

This just does not seem to be a real easel by any stretch of the imagination. It is as much of an easel as an inflatable bounce house is a house (which is to say not at all). 

But, even if I am right about that, there are other problems for the importer. Specially, the ENs to Chapter 95 exclude articles that are used for drawing, painting and other art activities. While my argument above might overcome that, it is a confounding factor that adds weight to CBP's decision.

Finally, there is the problem that the Explanatory Notes to Heading 9403 specifically references easels as furniture covered in that heading. Again, that assumes this is actually an easel, which is how it is described in its marketing materials. 

But, and this is where I will rest my case, Chapter 94, Note 1(l) states that the chapter does not include "Toy furniture or toy lamps or lighting fittings (heading 9503), billiard tables or other furniture specially constructed for games (heading 9504), furniture for conjuring tricks or decorations (other than electric garlands) such as Chinese lanterns (heading 9505)." This makes is clear that something can be both a toy and furniture. Maybe that is supposed to be limited to tiny versions of furniture that cannot perform the function, like the tables and chairs in a doll house. But, the language does not say that. If this is a toy easel, it seems to be "toy furniture" and is, therefore, classifiable in HTSUS Heading 9503.