CLA-2 CO:R:C:F 954131 ALS
Mr. Larry K. Kaye
Transportation Manager
Cyrk International, Inc.
3 Pond Rd.
Gloucester, MA 01930
RE: Plastic Hand-Held Candy Dispenser; Modification of New York
Ruling Letter (NYRL) 868430, dated November 25, 1991
Dear Mr. Kaye:
In NYRL 868430, date November 2, 1991, our New York Seaport
Area Office advised you that a 3-1/2 inch high plastic hand-held
candy dispenser, one of several articles noted therein, was
classifiable in subheading 3924.10.5000, Harmonized Tariff
Schedule of the United States (HTSUSA). We have recently
reviewed that ruling in connection with a request for further
review of protest 4101-92-100033, dated July 16, 1992, filed on
behalf of your company. We have concluded that the prior
classification was incorrect. Our decision follows:
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 deep. There is a large letter "M" on the front
thereof, like the actual candy, and a whimsical face. Arms and - 2 -
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.
ISSUE:
What is the classification of the subject article?
LAW AND ANALYSIS:
Classification of merchandise under the 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.
Although the article under consideration was originally
classified in subheading 3924.10.5000, HTSUSA, in NYRL 868430, it
was entered under subheading 8210.00.0000, HTSUSA, in the Customs
entry covered by the aforementioned protest. That protest
questioned the classification of the article in subheading
9503.49.0020, HTSUSA, in liquidation of the entry.
In considering this matter we noted that the Explanatory
Notes to Chapter 95 of the Harmonized System, which represent 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 articles 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 - 3 -
noted the comical appearance and relatively sturdy 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 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 propose 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.
Accordingly, the hand-held candy dispenser which was one of
the articles subject of NYRL 868430, should be classified in
subheading 9503.49.0020, the provision for toys.
HOLDING:
Durable plastic cartoon depictions of M&M~ candy are
considered to be for the enjoyment or amusement of their
possessors. Such articles, although they are functional hand-
held candy dispensers, 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.
NYRL 868430 is accordingly modified.
We realize that your client may have undertaken contractual
obligations in reliance on NYRL 868430. Under the provisions of
section 177.9(d), Customs Regulations (19 CFR 177.9(d)), you may
obtain a delay of up to 90 days in the implementation of this
ruling if you can establish by documentary evidence, that you
reasonably relied on NYRL 868430 to your detriment. If you wish - 4 -
to request such a delay, your request and appropriate
documentation such as contracts, purchase order, shipping
documents, etc. should be received in this office within 30 days
from the issuance of this ruling. You should also include an
explanation therewith of the reason for the subheading utilized
in the entry which was covered by protest 4101-92-100033, as
noted above.
Sincerely,
John Durant, Director
Commercial Rulings Division