CLA-2 CO:R:C:F 952186 ALS
District Director of Customs
55 Erieview Plaza
Cleveland, OH 44114
RE: Request for Further Review of Protest 4101-92-100033, dated
July 16, 1992, Concerning a Plastic Hand-Held Candy
Dispenser
Dear Mr. Nelson:
This ruling is on a protest that was filed against your
decision of February 21, 1992, in the liquidation of an entry
covering the referenced item.
FACTS:
The article under consideration is a 3-1/2 inches high plastic
cartoon depiction of an M&M~ candy. The face and body portion of
the article is oval-shaped, 3 inches high, 2 inches wide and 1-
1/2 inches deep. There is a large letter "M" on the front thereof,
like the actual candy, and a whimsical face. Arms and gloved hands
are appended to the sides thereof, with one hand raised in a waving
position and the other hand at the side. Legs with shoes are
appended to the bottom of the article. The body of the article is
orange or brown according to the samples submitted. The arms and
legs are flesh colored. The gloves and shoes are white. On the
reverse side of the article there is a disc with a flange which can
be pushed upward to expose an opening to an interior cavity. This
article apparently is the same as one of the articles which was the
subject of New York Ruling Letter (NYRL) 868430, dated November 25,
1991.
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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 article was entered under subheading 8210.00.0000, HTSUSA,
which provides for hand-operated mechanical appliances, weighing
10kg. or less, used in the preparation, conditioning or serving of
food or drink, and base metal parts thereof. The article was
classified in subheading 9503.49.0020, HTSUSA, which provides for
other toys representing animals or non-human creatures because the
article was found to be suitable as a source of play fun and its
use as a toy plaything.
The Explanatory Notes to Chapter 95 of the Harmonized Tariff
System, which represents the opinion of the classification experts
at the international level, indicates that "[T]his 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 considering the
applicability of the chapter 95 provisions to this article we noted
the comical appearance and relatively sturdy molded construction
of the article.
We believe that the play value inherent in this article,
combined with its amusing features and anthropomorphic qualities
are intended to amuse the owner thereof the same way as toys.
While the article is functionally a dispenser we believe it is
intended to function primarily as a toy. 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 - 3 -
incidental to the amusement." In this instance, the primary value
of the item is its play value; the utilitarian aspect of the
merchandise is 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 is consumed, is a toy.
We have concluded that the article is not used in the
preparation, conditioning or serving of food or drink and that it,
therefore, should not be classified in subheading 8210.00.0000,
HTSUSA, as entered.
In considering the proper classification of this article we
noted, as stated above, that NYRL 868430 of November 25, 1991, held
that this article should be classified in subheading 3924.10.5000,
HTSUSA, as a household article of plastic. Since that ruling,
issued on behalf of the importer, is currently extant, it
represents the official position of the Customs Service with
respect to the article described therein. It is, as noted in
section 177.9(a), Customs Regulations (19 CFR 177.9(a)), binding
on Customs Service until modified or revoked. Our records do not
indicate that NYRL 868430 has been modified or revoked as of this
date. In regard thereto, we note that the protesting party now
claims that the article should be classified in the subheading
referenced in the NYRL.
Accordingly, while we believe that the article is similar to
the article in HRL 951309, dated April 26, 1993, and is properly
classifiable in subheading 9503.49.0020, the Customs Service is
bound by the prior ruling which we intend to modify so that it
agrees with the above conclusion.
HOLDING:
Durable plastic cartoon depictions of M&M~ candy are
considered to be for the enjoyment or amusement of their
possessors. Such articles are classifiable in subheading
9503.49.0020, HTSUSA, as a toy representing animals or non-human
creatures, and are subject to a general rate of duty of 6.8 percent
ad valorem.
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However, since the classification claimed in the protest is
the same as the classification in NYRL 868430 issued on behalf of
the protestant and has never been modified or revoked, you are
instructed to allow the protest in full. The protestant should be
advised that this decision covers only the entry referenced in the
protest and that we will be modifying NYRL 868430 so that it
conforms to the conclusion noted above that the article should be
classified as a toy.
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