Lighted 'Cone-Shaped Tree' Not Festive Article, CBP Tells Mr. Christmas
A lighted "cone-shaped tree" made of glass meant for indoor decoration doesn't meet the legal test for classification as a festive article, CBP said in a Aug. 18 ruling, HQ H258442 (here). The importer, Mr. Christmas, Inc., requested CBP reconsideration of a 2014 ruling (here) that classified the tree in heading 7013 as “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018).” The company, represented by Robert Leo, a lawyer with Meeks Sheppard, said the tree should instead be classified in heading 9505 as a "festive article."
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At issue are tapered glass cones with encrusted glass beads and battery-powered LED lights, all attached to a plastic stand. CBP uses a two-prong test established by court rulings to determine whether an item is "festive," the agency said. Such articles must "be closely associated with a festive occasion" and "must be used or displayed principally during that festive occasion," CBP said. The company argued that the glass cone resembles a Christmas tree, "a symbol so closely associated with Christmas, that it must be classified as a festive article." CBP wasn't convinced. "The subject glass cone lacks branches, leaves, and other identifiable tree characteristics," CBP said. "The beaded exterior provides decorative texture; however, the beads are not ball-shaped; they also lack a definitive edge and a scalloped hanging crown associated with Christmas tree ball ornaments."
The company also argued that the LED lights "specifically represent a Christmas tree" with a lighted tip. But, because "LED lights are not fixed into place inside the cone and eventually succumb to gravity," the tip does not stay lit, the agency said. "Hence, the instant glass cone does not have symbolic content 'intrinsically related' to a Christmas tree." Even though the cone is advertised as a "Beaded Glass Christmas Tree," such marketing "in itself is not determinative," the agency said. CBP pointed to other lighted glass cones sold by other retailers outside the Christmas season. "Accordingly, the glass cone does not have a 'direct association with and limited use to' Christmas," it said.
The subject merchandise is not a festive article and is therefore not excluded from classification in chapter 70, CBP said. As a result, CBP affirms the previous ruling and the classification in subheading 7013.99.9000 as “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Other glassware: Other: Other: Other: Valued over $3 each: Other: Valued over $5 each… .” Additionally, "this ruling applies to prospective entries," CBP told the company in response to a mention that another importer protested entries of the same merchandise.