CLA-2 CO:R:C:F 951309
District Director of Customs
Patrick V. McNamara Building
477 Michigan Ave.
Detroit, Michigan 48266
RE: Request for Further Review of Protest 3801-1-103422, dated
December 27, 1991, Concerning a Coated Chocolate Candy
Novelty Figurine Designed for Use as a Lid for Tubes of Candy
Dear Mr. Morandini:
This ruling is on a protest that was filed against your
decision of October 4, 1991, in the liquidation of an entry
covering the referenced item.
FACTS:
The article under consideration is a novelty skier figurine
made of plastic. The face and body portion of figurine is a 3-
dimensional round disk shaped like a M&M~ candy. There is a large
letter "M" on the front thereof, like the actual candy, and a
whimsical face. Arms and hands holding ski poles are appended to
the sides of the disk. Legs, shoes and 1 1/2 inch skies are
appended to the bottom of the disk. The skies are part of the top
of the cap which is styled to represent a bank of snow. The cap,
which is round, is slightly narrower in circumference below its top
and has 4 four projections equally placed around its outer edge,
apparently so that the cap will fit snugly into a tube to which it
is affixed subsequent to importation, at the time the tube is
filled with candy. A red stocking cap is affixed to the top of the
disk. A string which goes through a hole in the hat permits the
figurine to be hung.
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ISSUE:
What is the classification of the subject article?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's). GRI 1 provides that
the classification is determined first in accordance with the terms
of the headings and any relative section and chapter notes. If GRI
1 fails to classify the goods and if the heading and legal notes
do not otherwise require, the remaining GRI's are applied, taken
in order.
The importer states that the merchandise should be classified
under subheading 3923.50.0000, HTSUSA, which provides for articles
for the conveyance or packing or goods, of plastics; stoppers,
lids, caps and other closures, of plastics. The merchandise was
entered under that provision.
The merchandise was classified by Customs in subheading
9503.49.0020, HTSUSA, the provision for toys representing animals
or non-human creatures.
We noted that the aforementioned provisions as well as
subheading 3926.40.0000, HTSUSA, regarding statuettes and other
ornamental articles, might apply to the article under
consideration.
Since the article appears to be designed to function as a cap,
classification in subheading 3923.50.0000, HTSUSA, as suggested by
the protestant, appeared appropriate. While the article can
function as a stopper or lid, several factors caused us to believe
that was not its primary function. The article is much more
substantial and larger than would be needed for a cap to hold candy
in a tube. The value of each unit is rather significant, 22.5,
so as to cause one to conclude that such value may exceed the value
of the tube filled with candy. It appears that the purpose of the
article is to primarily give the plastic tubes of candy their
commercial identity and, secondarily, to serve as a cap. We,
therefore, have concluded that the article should not be classified
as a cap or stopper although it can function in that capacity.
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We considered the provision for statuettes and other
ornamental articles. We consulted "The American Heritage
Dictionary" regarding the meaning of these terms. The term
"statuette" is defined as a small statue which, in turn, is defined
as "[a] form or likeness sculpted, modeled, carved, or cast in
material such as stone, clay, wood, or bronze". It defines an
ornament as "[s]omething that decorates or adorns, embellishment".
While the article, when broadly viewed, appears to generally meet
the definition of a statue, although not made of the noted
material, it does not appear to be of a nature that would
traditionally be viewed as a statue. We also do not believe that
it is designed to embellish anything to which it was attached or
on which it is displayed. Accordingly, we do not believe that its
primary function is to serve as a statuette.
We next considered the applicability of subheading
9503.49.0020, HTSUSA, which provides for other toys representing
animals or non-human creatures. The article is obviously durable
and is intended for extended use. Since the candy would be eaten
shortly after purchase and there is no indication that the tube is
the type of container that would be retained after its contents
have been consumed, we have concluded that the article's primary
function is to serve as something other than a cap. We believe
that the article's anthropomorphic qualities are intended to amuse
the owner thereof the same way as toys.
The Explanatory Notes (EN) to Chapter 95 of the Harmonized
Tariff System as to toys, games and sports requisites, which
represents the considered opinion of the tariff classification
experts at the international level, specifies that the "chapter
covers toys of all kinds whether designed for the amusement of
children or adults." In order for an article to be classified as
a toy it must provide enjoyment or amusement. It, however, does
not have to be something with which the possessor thereof
physically plays, as long as it evokes the same emotion. (See
Headquarters Ruling Letter (HRL) 068668, dated October 23, 1981.)
In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D.
4688 (1977), the court stated that "[W]hen amusement and utility
become locked in controversy, the question becomes one of
determining whether the amusement is incidental to the utilitarian
purpose, or the utility purposes incidental to the amusement."
This item has the appearance and play value of any toy and can be
used for amusement without being used as a bottle stopper. In this
instance, the primary value of the item is its play value; the
utilitarian aspect of the merchandise is - 4 -
temporary and incidental to the amusement factor. Thus, we have
concluded that the primary purposes of the article, with its
anthropomorphic and durable qualities and its ability to provide
amusement or enjoyment after the candy has been consumed, is a toy.
HOLDING:
Durable plastic figurines of significant value, which are,
subsequent to importation, affixed to tubes containing candy
and serve as a cap therefor, are considered to be for the enjoyment
or amusement of their possessors, and are classifiable under
subheading 9503.49.0020, HTSUSA, as a toy representing animals or
nonhuman creatures. Such articles are subject to a general rate
of duty of 6.8 percent ad valorem.
Since the classification indicated above is the same as the
classification under which the entry was liquidated, you are
instructed to deny the protest in full. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division