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Russell Wangersky: Trade tribunals and other amusements

The Fisher-Price/Mattel Soothe 'n' Play Bouncer, discontinued 2007
The Fisher-Price/Mattel Soothe 'n' Play Bouncer, discontinued 2007

How many lawyers does it take to decide whether an infant’s bouncy-chair is a toy or furniture? (No, this isn’t a joke.)

Russell Wangersky

The answer is, by my count, a minimum of five.

This particular case is a couple of years old and therefore a little dated, but it’s a good example of how disputes over tariffs, let alone full-scale tariff wars, just add costs for customers and waste time and money for companies.

Back to the pressing question: is an infant bouncy-chair a toy, or is it furniture?

The maker of the chairs, Mattel, said toy. The Canada Border Services Agency? Furniture.

The difference? An eight per cent tariff. The CBSA applied the tariff and Mattel dutifully paid — presumably passing that cost on to parents across Canada. They did that for eight years, before an appeal finally reached the Canadian International Trade Tribunal.

The CBSA “argued that the goods in issue cannot be said to be … ‘other toys’ because, when examined as a whole, their essential character stems from the fact that they are seats.”

But that’s not all: “Further, the CBSA stated that the goods in issue meet the six components of the definition of ‘furniture’ as set out in the explanatory notes …”

The six components? Things like, “The goods are movable; the goods are articles; the goods are constructed for placing on the floor; the goods are used mainly with a utilitarian purpose,” etc.

Mattel’s argument was that the chairs were fun, and that made them a toy.

The CBSA “conceded that the goods in issue can, and do, amuse children to a certain degree. Nevertheless, the CBSA argued that the amusement value is secondary to the essential character of the goods in issue.”

Then, the tribunal had to decide if the chairs were, well, entertaining enough: “The Tribunal must therefore consider whether the goods in issue are toys and, as such, whether they are designed or intended to amuse children. More specifically … the Tribunal must consider whether the goods in issue, taken together, can amuse children between birth and toddlerhood.”

So, the tribunal did what tribunals do: it heard witnesses. Who testified. Under oath. About whether children in bouncy-chairs were having fun.

Enter Dr. Christopher Fennell, an associate professor at the University of Ottawa and an expert witness in the area of infant cognitive development.

“When asked specifically whether the goods in issue can amuse infants, Dr. Fennell agreed. While he noted that amusement and distraction are not always considered synonymous concepts in the literature, the goods in issue can be said to amuse infants if the Tribunal accepted that distraction was a form of amusement. Furthermore, he noted that ‘…past the age of six months, I would be comfortable saying that these objects could provoke amusement at that higher level of smiling and laughing.’”

Another witness for Mattel, Fisher-Price’s senior director of product design, Kurt Huntsberger, even had video: “The Tribunal notes that, in a video presented by Mr. Hunstberger during the hearing, infants reacted positively to the goods in issue and, in some cases, physically interacted with them.”

“The Tribunal finds that … bouncers are also ‘brightly coloured’ and ‘… have toys overhead that the children can bat at’, some of which ‘… have lights and movement’ and some of which ‘… have rattles, some have fabric components with crinkle inside, some have electronics that actually have songs and tunes in them.’”

You can see which way they were leaning.

All in all, though, what a colossal waste of time and money.

So bring it on: new tariffs and new trade wars and let’s make international trade tribunals great again.

Because that’s what we really want to go back to, right?

Oh – and the punch line?

It’s a toy.

I know I was amused.

Russell Wangersky can be reached at rwanger@thetelegram.com — Twitter: @wangersky.

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