Tableware Must be Same Color to be Classified in Sets, Finds CIT
Tableware and kitchenware must all be of the same color, shape and decoration in order to be classified as tableware and kitchenware sets in the tariff schedule, ruled the Court of International Trade on June 17 in a test case on the classification of mugs and cups imported by G.G. Marck (here). Such articles must also be designed for use as a set to qualify, which can be demonstrated by catalogs or marketing materials showing the articles listed for sale in a set, it said.
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Marck had imported 91 models of stoneware mugs and cups between 2006 and 2010, with CBP classifying the mugs as “mugs and other steins” under HTS subheading 6912.00.44, dutiable at 10%, and the cups under subheading 6912.00.48 as “other” tableware and kitchenware not made of porcelain or china, dutiable at 9.8%. Marck argued the mugs and cups were part of its “Cancun” tableware and dinnerware sets, and should have been classified under subheading 6912.00.39 as “ceramic tableware and kitchenware, other than of porcelain or china … available in specified sets,” dutiable at 4.5%.
Classification of tableware and dinnerware sets is governed by Additional U.S. Note 6 to chapter 69. Under note 6(a), sets must be “sold or offered for sale in the same pattern” and include the articles set forth in note 6(b), such as 12 large plates, 12 small plates, 12 tea cups and saucers, a sugar bowl and a creamer, among others.
Marck sells its Cancun tableware and dinnerware sets in seven colors, although the sugar bowl and creamer are only available in cobalt blue and light blue. On the other hand, its imported mugs and cups came in a wide variety of colors and finishes. CBP argued that only mugs and cups sold in the seven colors of the Cancun sets could be considered as “offered for sale in the same pattern” under Additional U.S. Note 6(a). Marck argued all 91 articles coordinate with the Cancun sets’ “bright bold colors and round rim shapes,” and are part of the same set.
Finding no guidance on the meaning of “in the same pattern” in the HTS, Explanatory Notes or previous court cases, CIT went all the way back to the 1963 report that accompanied the publication of the first Tariff Schedules of the United States (TSUS), the predecessor of the HTS. The report defined “in the same pattern” to mean “articles in coordinated shapes, colors, or decorations, including plain white articles, designed to be used together as sets.” As the tariff provisions on tableware and kitchenware haven’t changed since, CIT adopted the definition as its own, holding “Congress intended that subheading 6912.00.39” covers “only those items that (1) coordinate in shape, color, and decoration, and (2) were designed to be used as a set.”
With respect to the second criteria, CIT found that Marck’s catalogs listed only 16 of the mugs and cups alongside its Cancun sets, with the company adding an additional “M” to the items’ serial numbers to designate their inclusion in the set. Thus, only those 16 mugs and cups were “designed to be used as a set.”
As for the first, CIT found that only five of the mugs and cups coordinated in shape, color and decoration with other articles in the Cancun set. Although some of the cups and mugs came in the seven colors offered in the Cancun line, only two of the colors meet Additional U.S. Note 6(a)’s stricter definition because the sugar bowl and creamer are only offered in light blue and cobalt blue. None of the other colors include a sugar bowl and creamer in the same color, said CIT. Therefore, only cobalt blue and light blue mugs and cups that were listed in Marck’s Cancun as belonging to the Cancun set are classifiable as “available in specific sets” pursuant to Additional U.S. Note 6(a), said the court. All of the other 86 models of mugs and cups were correctly classified by CIT as separate articles, it said.
Turning to whether CBP classified the mugs and cups under the correct tariff provisions, CIT affirmed the agency’s classification and adopted a definition for each. “For classification purposes under the HTSUS, unless properly classified elsewhere, articles found to be “either straight-sided or barrel-shaped, measuring about the same across the top as across the bottom, having a flat bottom, heavier than a cup, and not used with a saucer,” are properly classified as “Mugs and other steins” under subheading 6912.00.44, and articles found to be “bowl-shaped drinking vessel[s] commonly set on a saucer and used for the service of hot liquids,” are not mugs and are thus properly classified under subheading 6912.00.48, “Other,” given the absence of a more specific subheading for this type of merchandise, ruled the court.
(G.G. Marck & Assocs., Inc. v. United States, Slip Op. 15-62, CIT # 08-00306, dated 06/17/15, Judge Eaton)
(Attorneys: Edmund Maciorowski for plaintiff G.G. Marck & Associates, Inc.; Jason Kenner for defendant U.S. government)