Tariff Classification Advance Ruling
Colour Me Pillow

Applicant

Ms. Pierrette Guimond
Industries Mon-Tex Limitée
3970 rue Griffith
Montréal, QC  H4T 1A7

Date of issuance of ruling:

This is in response to a request submitted on your behalf by Delmar International Inc. for an advance ruling on the tariff classification of a “Color Me Pillow”. This product is manufactured by/exported Trans Industrial Corp., Tapei, Taiwan.

TRS Number: 275870
Classification Number: 9404.90.10.31
Effective Date:

Product Description

Information submitted by the importer indicates this product, referred to as a “Color Me Pillow”, is a 13” × 13” cushion sold with five non-toxic markers. The cushion has a black and white printed design on one side which can be colored using the five non-toxic markers provided. The cushion is made of cotton (60%) and polyester (40%), and is filled with a polyester filling.

Analysis and Justification

In the absence of a clear definition of “toy” in the Customs Tariff, the ordinary meaning of the term and established jurisprudence must prevail.

The Canadian International Trade Tribunal (the Tribunal) has consistently interpreted the term “toy” broadly to encompass a wide range of articles that provide amusement or play value in accordance with the Explanatory Notes to Chapter 95, as well as Explanatory Notes to heading 95.03. In its previous decisions, the Tribunal ruled that the factors of fun and play value may be determined by examining the current and intended use of the goods.

The design of the goods and how they are marketed, packaged and advertised may be considered as determinative factors. With respect to intended uses, the Tribunal had previously found that the term “designed for” relates to a deliberate intention of the manufacturer of the goods as to the nature of its ultimate use and function. The Tribunal has also established that amusement, fun and play value alone do not make an object a toy for the purpose of tariff classification. For the “Color Me Pillow” item, the fact that the markers are provided with the cushion to allow a user to add colour to the cushion does not make the cushion a toy.

In view of the foregoing and based on General Interpretative Rule 3 (b), the cushion gives this article its essential character and, therefore, is to be classified under heading 94.04 as an article of bedding.

Decision

Section 10 of the Customs Tariff directs that classification of imported goods shall be determined in accordance with the General Rules for the Interpretation of the Harmonized System. Section 11 of the Customs Tariff states that in interpreting the headings and subheadings, regard shall be had to the World Customs Organization's (WCO) Explanatory Notes to the Harmonized Commodity Description and Coding System.

General Interpretative Rule 1 (GIR 1) directs that titles of Sections, Chapters and sub-Chapters are provided for ease of reference only. For legal purposes, classification shall be determined according to the terms of the heading and any relative Section and Chapter Notes. Similarly, General Interpretative Rule 6 (GIR 6) directs that classification shall be determined according to the terms of those subheadings and any related Subheading Notes.

The goods are classified under tariff classification number 9404.90.10.31 of the Canadian Customs Tariff as a polyester-filled pillow. This classification is in accordance with General Interpretive Rules 1, 3 (b) and 6 of the Harmonized System.

Legislative/Administrative References

This ruling has been issued under paragraph 43.1(1)(c) of the Customs Act and will be honoured by the CBSA for future importations of the goods specified, provided the material facts and circumstances remain as originally presented; all conditions in the ruling have been met; the ruling has not been modified, revoked, revised, or cancelled; and the Customs Tariff legislation has not changed. Should there be a change in the material facts or circumstances pertaining to the goods, you must notify the CBSA as soon as possible. You may request that the advance ruling be modified or revoked as of the date of the change.

Importers should quote the advance ruling number at the time of importation in either the description field of the B3 entry document or on the Canada Customs Invoice. Exporters or producers should quote the advance ruling number on the Certificate of Origin or commercial invoice accompanying the goods.

Should you disagree with this advance ruling, you may file a dispute notice under subsection 60(2) of the Customs Act within 90 days of the date of issuance. Please see the procedures outlined in Appendix C of the CBSA’s Memorandum D11-11-3, Advance Rulings for Tariff Classification.

This advance ruling is considered "reason to believe" for the purposes of section 32.2 of the Customs Act and as described in Memorandum D22-1-1, Administrative Monetary Penalty System.

All D-Memoranda referenced in this letter may be accessed on the CBSA website.

Consent to the Public Release of the Advance Ruling

As per your consent statement, we will release this advance ruling to the public, in both official languages, in accordance with the procedures described in Memorandum D11-11-3.

CBSA Contact

Mark Grant
Manager, Tariff Policy Unit 'B'
Trade Policy Division
Headquarters, Ottawa

File Number

C-2016-005516

Date modified: