CLA-2 OT:RR:CTF:TCM H069897 GC
Ms. Lisa Shafran
Senior Analyst, International Customs and Trade
Mattel, Inc.
333 Continental Boulevard
El Segundo, California 90245
RE: Classification of an action figure packaged with elbow pads and a stuffed animal packaged with a cape
Dear Ms. Shafran:
This is in response to your letters of June 30 and July 1, 2009, in which you request binding rulings on the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) for two products imported by Mattel, Inc. Your ruling requests were forwarded to this office from the U.S. Customs and Border Protection (CBP) National Commodity Specialist Division for reply. Because the ruling requests present the same legal issue, we are addressing them both in this ruling.
FACTS:
The first product is the “World Wrestling Entertainment (WWE) Superstar Match-Ups Triple H”, which is identified by product number P9540 and consists of a plastic action figure of approximately seven inches in height that is packaged with children’s elbow pads. The plastic figure is a depiction of the WWE character “Triple H” wearing his wrestling costume, which includes his signature elbow pads. The 100 percent polyester children’s elbow pads packaged with the action figure are replicas of those worn by “Triple H”. The “padding” on the elbow pads consists of slightly thicker material on the area that would cover the wearer’s elbows compared to the material comprising the remainder of the elbow pads. The action figure is visible through a window in the packaging while the elbow pads are not. The packaging includes pictures of the “Triple H” character wearing his wrestling uniform as well as the phrases “Become your favorite superstar!”, “Elbow pads included!”, and “Now you’re the superstar!” printed on the box.
The second product at issue is the “Wonder Pet ‘N Me”, which is identified by product number R8037 and consists of a stuffed animal packaged with a child-sized cape. The stuffed animal, a depiction of the character Tuck from the Wonder Pets television show, is eight inches in height and in the shape of duck wearing a brown helmet with a green cape with the letter “W” enclosed in a circle painted on it. A green children’s cape with the same insignia as the duck’s cape is packaged with the stuffed animal. The cape is constructed with an unfinished neck opening, hook and loop closure and unfinished raw edges. Among the marketing graphics on the packaging includes the phrase “Be a Wonder Pet”.
ISSUE:
Whether Note 4 to Chapter 95, HTSUS, allows the subject combinations of products to be classified as toys of heading 9503, HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order. The HTSUS provisions under consideration in this case are as follows:
9503.00.00 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof…
* * *
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
9505.90 Other:
9505.90.60 Other…
Note 4 to Chapter 95, HTSUS, states, in pertinent part, that:
[H]eading 9503 applies, inter alia, to articles of this heading combined with one or more items, which cannot be considered as sets under the terms of [GRI 3](b), and which, if presented separately, would be classified in other headings, provided the articles are put up together for retail sale and the combinations have the essential character of toys.
In the case of the Wonder Pet product, you suggest that the stuffed animal is classified under heading 9503, HTSUS, and that the accompanying children’s cape would be independently classified under heading 9505, HTSUS, as an other entertainment article, including magic tricks and practical joke articles. For the “Triple H” product, you suggest that the combination of the action figure and the accompanying elbow pads are classifiable together under heading 9503, HTSUS, as a single toy.
We will first address your argument concerning the respective classification of the stuffed animal and the action figure under heading 9503, HTSUS, which provides for toys. The term "toy" is not defined in the HTSUS. However, the General EN for Chapter 95 states that the "Chapter covers toys of all kinds whether designed for the amusement of children or adults."( The U.S. Court of International Trade (CIT) construes heading 9503, HTSUS, as a "principal use" provision, insofar as it pertains to "toys." Consequently, a good is considered a “toy” for classification purposes “…only if it is designed and used for amusement, diversion or play, rather than practicality”. See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000).
For articles governed by principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use "is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use." In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind. Accordingly, if the imported articles are principally used as toys, they are classified under heading 9503, HTSUS.
The Court of International Trade has provided factors which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. These factors include: general physical characteristics, 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. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.
CBP consistently classifies action figures and stuffed animals similar to those subject to your ruling request as toys of heading 9503, HTSUS. See, e.g., New York Ruling Letter (NY) M86180, dated September 13, 2006; NY J88980, dated October 9, 2003; NY N059599, dated May 12, 2009; and NY N017873, dated October 12, 2007. Taking into consideration the packaging in which the stuffed animal and action figure are presented and the nature of the items themselves, we find that the two products are of a class or kind of items provided for as toys under heading 9503, HTSUS.
Note 4 to Chapter 95, HTSUS, allows articles that are imported packaged together with toys for retail sale to be classified in heading 9503, HTSUS, provided that the combination of items does not constitute a set under GRI 3(b), and the combination has the essential character of toys.
The first requirement of Note 4 is satisfied here, as the children’s cape and elbow pads, each independently classifiable outside of heading 9503, HTSUS, are packaged in the same box with toys of heading 9503, HTSUS (the Wonder Pet and the “Triple X” action figure). Moreover, because the subject merchandise does not have a single overall use, it does not constitute a set by the terms of GRI 3(b). See EN (X)(b) to GRI 3(b) (stating that “sets” consist of articles put up together to meet a particular need or carry out a specific activity).
Finally, for Note 4 to apply, the toy and non-toy item(s) must complement one another to the extent that together they can be used for “amusement, diversion or play” as articulated in Minnetonka in order to possess “the essential character of toys”.
The elbow pads and cape are replicas of those worn by the “Triple X” action figure and Wonder Pet stuffed animal indicates that the user will wear them when imitating the characters portrayed by the toys. The elbow pads and cape are replicas of those worn by the “Triple X” action figure and the Wonder Pet stuffed animal. Pictures on the products’ packaging indicate that the user will wear them while imitating the characters portrayed by the toys. Likewise, children are encouraged to “be a wonder pet” by wearing the cape or are told “now you’re a superstar” when they wear the elbow pads. The elbow pads and cape add to the amusement factor of the toys with which they are packaged. Accordingly, we conclude that the overall combinations possess the essential character of toys of heading 9503, HTSUS, because they are used by children for amusement, diversion and to play in the home with no practical value.
Consequently, based on the foregoing, the instant two products meet the terms of Note 4 to Chapter 95, HTSUS, and are thus classifiable as toys of heading 9503, HTSUS.
HOLDING:
By application of GRI 1, Note 4 to Chapter 95, HTSUS, and Additional U.S. Rule of Interpretation 1(a), the subject “World Wrestling Entertainment (WWE) Superstar Match-Ups Triple H” and the “Wonder Pet ‘N Me” products are classified as toys in subheading 9503.00.00, HTSUS. The column one, general rate of duty for merchandise of subheading 9503.00.00, HTSUS, is free.
Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch