CLA-2 OT:RR:CTF:TCM H044635 JPJ
Mr. Brian Linn
PTI Group, Inc.
2909 Anthony Lane
Minneapolis, MN 55416
RE: Request for Binding Ruling; Classification; PTI Group, Inc., Treat containers in the shapes of the characters SpongeBob SquarePants, Dora the Explorer, Disney Princess, Disney/Pixar Cars, and Elmo
Dear Mr. Linn:
This letter is in response to your electronic ruling request dated October 2, 2008, in which you requested a binding ruling pertaining to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of items you described as “figural shaped candy containers” (“treat containers”). Your request has been forwarded by the National Commodity Specialist Division (NCSD) in New York to this office for a response. An image of each treat container was forwarded with your request. On February 4, 2009, CBP requested additional information needed to issue a ruling. You responded with additional information on February 6, 2009.
FACTS:
The treat containers are empty, hollow, plastic containers, colored, printed, and shaped to resemble the characters of SpongeBob SquarePants, Dora the Explorer, Disney Princess, Disney/Pixar Cars, and Elmo. The treat containers each measure approximately 2 ½ to 3 inches in length. They are all formed by two equal halves designed to fit together to close, and to pull apart to open.
The treat containers are packaged 3 of the same character to a polybag for retail sale. An image of the SpongeBob SquarePants treat container packaged for retail sale shows the words “Nickelodeon”, “SpongeBob SquarePants”, “Treat Containers”, “3 Count”, “For Ages 3 and Up” and an image of part of an oversized eyeball on the printed cardboard portion of the retail packaging.
An image of the Dora the Explorer treat container packaged for retail sale shows the words “Dora the Explorer L’Exploratrice”, “Treat Containers Recipient de festin”, and “3 count (compte 3)” and “Ages 3 and Up Pour les ages 3 et levez” and an image of Dora in the corner, smiling with open arms on the printed cardboard portion of the retail packaging.
An image of the Disney Princess treat container packaged for retail sale shows the words “Disney” inside a decorated Easter egg, “Treat Containers”, “3 count”, “For Ages 3 and Up”, and an image of an Easter basket filled with decorated Easter eggs and images of four Disney Princesses, including Snow White and Sleeping Beauty, each holding baskets filled with decorated Easter eggs on the printed cardboard portion of the retail packaging.
An image of the Disney/Pixar Cars treat container packaged for retail sale shows the words “Disney/Pixar The World of Cars”, “Treat Containers”, “3 count”, “For Ages 3 and Up” and an image of a red racing car with eyes for a windshield and a smile for a bumper on a racing track on the printed cardboard portion of the retail packaging.
An image of the Elmo treat container packaged for retail sale shows the words “Sesame Street” on a street sign number 123, “Easter Fillable Containers”, “3 count”, “3+ years”, images of the Sesame Street Cookie Monster and Elmo dressed in false wide rabbit ears, and a background of decorated Easter eggs on the printed cardboard portion of the retail packaging.
The treat containers may be opened and filled with a piece of candy or a novelty item. The importer states that all of these items are marketed and sold for Easter for such Easter activities as filling Easter baskets, Easter egg hunts and Easter “gift giving”.
ISSUE:
Whether the treat containers are classified in heading 9505, HTSUS, as festive, carnival or other entertainment articles, or in heading 3924, HTSUS, as tableware, kitchenware, or other household articles of plastics.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The HTSUS provisions under consideration are as follows:
3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics:
* * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
* * *
Note 2 to Chapter 39, HTSUS, provides, in relevant part:
2. This chapter does not cover:
* * *
(y) Articles of chapter 95 (for example, toys, games, sports equipment); or
* * *
Note 1 to Chapter 95, HTSUS, provides, in relevant part:
1. This chapter does not cover:
* * *
(v) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material).
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes ("EN") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The ENs to heading 3924, HTSUS, state, in relevant part:
This heading covers the following articles of plastics:
Tableware such as tea or coffee services, plates, soup tureens, salad bowls, dishes and trays of all kinds, coffee-pots, teapots, sugar bowls, beer mugs, cups, sauce-boats, fruit bowls, cruets, salt cellars, mustard pots, egg-cups, teapot stands, table mats, knife rests, serviette rings, knives, forks and spoons.
(B) Kitchenware such as basins, jelly moulds, kitchen jugs, storage jars, bins and boxes (tea caddies, bread bins, etc.), funnels, ladles, kitchen-type capacity measures and rolling-pins.
* * *
The ENs to heading 9505, HTSUS, provide in relevant part:
* * *
This heading covers:
(A) Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include:
(1) Decorations such as festoons, garlands, Chinese lanterns, etc., as well as various decorative articles made of paper, metal foil, glass fibre, etc., for Christmas trees (e.g., tinsel, stars, icicles), artificial snow, coloured balls, bells, lanterns, etc. Cake and other decorations (e.g., animals, flags) which are traditionally associated with a particular festival are also classified here...
* * *
(4) Throw-balls of paper or cotton-wool, paper streamers (carnival type), cardboard trumpets, "blow-outs", confetti, carnival umbrellas, etc.
* * *
The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen.
* * *
You believe that the correct classification for the merchandise is subheading 3924.90.5600, HTSUS, in accordance with our decision in New York (NY) N012286, dated July 5, 2007, which classified plastic egg shaped and carrot shaped candy containers from China as tableware, kitchenware, other household articles. . .of plastics in subheading 3924.90.5600, HTSUS.
Both heading 3924 and 9505 are organized as lists of items or exemplars followed by general phrases such as “other household articles” in heading 3924 and “other entertainment articles” in heading 9505. “When a list of items is followed by a general word or phrase, the rule of ejusdem generis is used to determine the scope of the general word or phrase.” Avenues in Leather, Inc. v. United States, 178 F.3d 1241, 1244 (Fed Cir. 1999).
“In classification cases, ejusdem generis requires that. . .the subject merchandise must posses the same essential characteristics or purposes that unite the listed examples preceding the general term.” Id. Under an ejusdem generis analysis, we “must consider the common characteristics or unifying purpose of the listed exemplars in a heading as well as consider the specific primary purpose of the imported merchandise.” Id. “[C]lassification. . .under ejusdem generis is appropriate only if the imported merchandise shares the characteristics or purpose and does not have a more specific primary purpose that is inconsistent with the listed exemplars.” Id.
First, CBP must consider the common characteristics or unifying purpose of the exemplars listed in the tariff provisions relevant in this case: heading 3924, HTSUS and heading 9505, HTSUS.
The essential characteristic and purpose of the exemplars listed in heading 3924, HTSUS, is to store or contain food and beverages.
SGI, Incorporated v. United States, 122 F.3d 1468 (Fed Cir. 1997). The treat containers are not ejusdem generis with those articles cited in the EN 3924 as exemplars of tableware and kitchenware insofar as there is no indication that the merchandise is principally designed to store or contain food and/or beverages.
Merchandise is classifiable in heading 9505, HTSUS, as a festive article if the article satisfies two criteria: (1) it must be closely associated with a festive occasion and (2) be used or displayed principally during that festive occasion. Additionally, the items must be “closely associated with a festive occasion” to the degree that “the physical appearance of an article is so intrinsically linked to a festive occasion that its use during other time periods would be aberrant.” Michael Simon Design, Inc. v. United States, 452 F. Supp 2d. 1316 (Ct. Int’l Trade 2006), aff’d 501 F. 3d 1303 (Fed. Cir. 2007) reh’g denied (Fed. Cir. April 2, 2008) citing Park B. Smith, Ltd. v. United States, 25 Ct. Int’l Trade 506 (2001), affirmed in part, vacated in part, and remanded, 347 F. 3d 922 (Fed. Cir. 2003), reh’g denied (Fed. Cir. March 16, 2004) and Midwest of Cannon Falls, Inc. v. United States, 20 Ct. Int’l Trade 123 (1996), aff’d in part, rev’d in part, 122 F. 3d 1423 (Fed. Cir. 1997).
In addition to the guidelines set forth above, general criteria for determining “class or kind” with respect to classification were 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 (1976). Those criteria include: general physical characteristics, 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.
Despite the subject merchandise’s retail packaging, treat containers in the shapes of the characters of SpongeBob SquarePants, Dora the Explorer, Disney Princess, Disney/Pixar Cars and Elmo are not closely associated with Easter. Their physical appearances are not so intrinsically linked to Easter that their use during other time periods would be aberrant. Though the treat containers are stated to be marketed and sold only during Easter, CBP has consistently stated neither the motif nor the sale of a good alone is sufficient to transform an item into a festive article. See Headquarters Ruling Letters (HQ) 958406 dated January 23, 1996; HQ 966215, dated February 23, 2003; and HQ 964411, dated May 2, 2002. Therefore, the merchandise are not “festive articles”.
Though the treat containers are not classifiable as festive articles in heading 9505, HTSUS, heading 9505, HTSUS, also includes “. . . other entertainment articles.” EN 9505(A) introduces the category of "Festive, carnival, or other entertainment articles" by indicating that "in view of their intended use [they] are generally made of non-durable material." The subject treat containers are made of non-durable material, since they are not designed for sustained wear and tear, and are not purchased for their extreme worth or value. These items are all of minor value, are inexpensively made, and are not intended for long term use. The trade recognizes that all of the items are of a type that would be distributed at “theme” parties for children or similar events. The channels of trade are in specialty party goods stores, gift shops, in designated “party goods” aisles of large toy, department, and drugstores, and via Internet shopping sites. From our internet research, we have found online party stores, including www.partysupplieshut.com, that sell a wide variety of party supplies and party favors with the characters of SpongeBob SquarePants, Dora the Explorer, Disney Princess, Disney Car and Elmo. They as a class of merchandise, are bought in groups or multiples. As to the environment of the sale, the express manner of sale is in polybags usually in multiples of 3ct, but also available in multiples of 2ct and 4ct, per customer request, with a header card attached. The items are not sold individually, and one unit at a time, owing, in part, to their low value. The ability to purchase the items at a low cost, for maximum distribution to several children reflects the economic practicality of so using the items. For example, when 3 Dora the Explorer treat containers are packaged together, it seems clear that they are to be used by three little girls. Therefore, the economics can be demonstrated by the principle that the ultimate purchaser will not normally buy more than he needs or can use.
Therefore, the application of the Carborundum factors leads us to conclude that the merchandise are within the same class or kind as “other entertainment articles” and are classifiable in heading 9505, HTSUS.
HOLDING:
In accordance with GRI I, the treat containers are classified in heading 9505, specifically subheading 9505.90, HTSUS, which provides for "Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other.” The 2009 general, column one rate of duty is Free.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch