CLA 2 RR:CR:GC 962321 MMC
Ms. Cindy Hazlett, CHB
Applause Inc.
P.O. Box 4183
Woodland Hills, CA 91365-4183
RE: Three Dimensional Masked “Snoopy” and “Woodstock”/ “Jack-O-Lantern” Trick-or-Treat Textile Bags
Dear Ms. Hazlett:
This is in response to your October 14, 1998, letter to the Director, Customs National Commodity Specialist Division, New York, requesting a binding classification ruling for two articles described as a three dimensional masked “Snoopy” and a three dimensional “Woodstock”/ “Jack-O-Lantern” textile bag under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of each were submitted with your request. Your letter was referred to this office for reply. We regret the delay.
FACTS:
The subject articles are textile trick-or-treat bags. The “Snoopy” bag consists of a three dimensional representation of “Snoopy” wearing a “Zoro”-like mask. It is lined with a polyester-cotton blend and its outside is a polyester tricot. Both the handle and mask are made of a material which depicts candy corn. The “Woodstock” bag resembles a “Jack-O-Lantern”. The carved face is simulated by contrasting black appliques sewn to the orange pumpkin body. The bag’s top and bottom are trimmed with simulated green leaves manufactured of plush velour. A small plush “Woodstock” doll appears to be permanently sewn to the green velour handle. The bag is lined with a polyester-cotton blend.
You stated that the articles are designed to be used for either collection, dispersion or display of “goodies” present at Halloween events. They will be sold for a limited amount of time before the Halloween holiday at stores that specialize in selling holiday decorations.
ISSUE:
What is the classification of three dimensional trick-or-treat textile bags?
LAW AND ANALYSIS:
In Midwest of Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically, the class or kind "festive articles," and provided new guidelines for classification of articles in the heading. In general, merchandise is classifiable in heading 9505, HTSUS, as a festive article when the article, as a whole:
1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;
2. Functions primarily as a decoration or functional item used in celebration of and for entertainment on a holiday; and
3. Is associated with or used on a particular holiday.
Based on a review of the Midwest articles, Customs is of the opinion that the court has included within the scope of the class "festive articles," decorative household articles which are representations of an accepted symbol for a recognized holiday and utilitarian/functional articles if such utilitarian articles are a three dimensional representation of an accepted symbol for a recognized holiday. See 32 Customs Bulletin 2/3, dated January 21, 1998.
In addition to the above listed criteria, the Court gave consideration to the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). As such, for those decorative and utilitarian articles involving holidays and symbols not specifically recognized in Midwest or the January 21, 1998, Customs Bulletin, in addition to the above criteria, Customs will consider the general criteria set forth in Carborundum to determine whether a particular article belongs to the class or kind "festive articles." Those criteria include: the general physical characteristics of the article, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.
The subject bags have no precious or semi-precious stones, metals or metal clad with precious metal. The “Woodstock” bag is functional article which is a three dimensional representation of a “Jack-O-Lantern”. The “Jack-O-Lantern” is an accepted symbol for a recognized holiday, Halloween. Furthermore, it is used for an activity associated with that holiday; trick-or-treating. As such, the “Woodstock” bag is described by heading 9505, HTSUS and classifiable as a festive article.
The “Snoopy” bag is a three dimensional representation of “Snoopy” and such a representation is not a recognized symbol of a recognized holiday. As such, the “Snoopy” bag does not meet the first two Midwest criteria. Concerning the third criteria, the general physical characteristics of the article, namely the mask “Snoopy” is wearing and the motif of the mask and handle’s material are associated with Halloween, namely the wearing of a mask and the eating of candy corn. The ultimate purchaser expects to buy this bag for the purpose of either collecting, dispersing, or displaying candy. Finally, they will be sold for a limited amount of time before the Halloween holiday at stores that specialize in selling holiday decorations. This application of the Carborundum factors leads us to the conclusion that the “Snoopy” bag is principally used as a festive article and therefore classified as such.
HOLDING:
The “Snoopy” and “Woodstock”/”Jack-O-Lantern” textile bags are classifiable under subheading 9505.90.60, HTSUS, as "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: [o]ther:[o]ther."
Sincerely,
John Durant, Director
Commercial Rulings Division