Hoverboards Are Used as Toys, Not Practical Transportation Devices, Importer Argues

Hoverboards are toys, not transportation devices, an importer argued in a motion for judgment filed July 12 in one of a couple of identical classification disputes it has brought in recent years (see 2110150056 and 2112100053) (3BTech v. U.S., CIT # 21-00026).

The importer, 3BTech, argues that its hoverboards should be classified under Harmonized Tariff Schedule heading 9503 for “tricycles, scooters, pedal cars and similar wheeled toys.” The U.S., on the other hand, claims the boards are covered under heading 8711 for “Motorcycles (including mopeds) and cycles fitted with an auxiliary motor, with or without side-cars; side-cars." The former would grant 3BTech exclusions to Section 301 tariffs, the importer claimed.

Citing Loper Bright Enterprises v. Raimondo, the recent Supreme Court case that overturned Chevron, the importer noted that “‘courts must exercise their independent judgment’ when interpreting the law.”

The hoverboards, it said, are principally used for “amusement, diversion, and play,” based on their general physical characteristics, ultimate purchaser expectations, environments of sale, manner of use and channels of trade. As a result, they should be classified under heading 9503, a principal use provision, it said.

The boards, it noted, are “packaged with kids coloring pages” and include “color casing[s], built-in speaker[s] for music, LED lights with different colors, Bluetooth connection to a phone application, and … different ways to maneuver (i.e., rapidly change the direction rather than prolonged travel) while riding the product.”

On the other hand, the boards “cannot be used for transportation because they do not have long lasting batteries,” nor do they have shocks, emergency brakes, headlights or taillights or horns, “which are in general essential for transportation devices,” it said.

Children are the intended end users of the product, and play is the intended end use, it said.

The hoverboards are also clearly described as “wheeled toys,” the importer argued. It noted that the Court of International Trade defined “wheeled toys” in the case Streetsurfing v. U.S. as products that don’t require training prior to use; don’t pose a meaningful risk of injury; don’t necessitate acquisition of a skill; and don’t need a particular level of athleticism to use. The court also held that a wheeled toy also must have “an assistive device,” 3BTech said.

The hoverboards do not pose “any meaningful risk of injury” greater than any other motorized wheeled toys, nor do they require skill or athleticism to use, it said.