CLA-2 CO:R:C:F 955050 LPF
Mr. William J. LeClair
Administrative and Regulatory Advisor
Trans-Border Customs Services, Inc.
One Trans-Border Drive
P.O. Box 800
Champlain, NY 12919
RE: Condom novelty lollipop; Heading 4016, HTSUSA; Other articles
of vulcanized rubber; Not 9505 practical joke article; Not
4014 hygienic or pharmaceutical article; HRLs 952472, 950564,
953187, 953188, 089529
Dear Mr. LeClair:
This is in response to your letter of September 20, 1993 on
behalf of H.M. Smallwares, Ltd. Your inquiry requests the proper
classification, under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), of a condom novelty. The marking
question included in your request has been forwarded to the Value
and Marking Branch for their separate consideration and response.
You submitted samples with your request for a binding ruling.
FACTS:
The article at issue is a condom novelty resembling a lollipop.
The condoms are manufactured in Korea and imported into Canada
where a paper or plastic stick is glued on to the condom to give
the appearance of a lollipop. One of a variety of humorous labels
will be attached. Of the samples submitted, one was labeled "Over
the Hill" and the other "Do Me Now" with a black or blue bow at the
juncture of the stick and condom. A disclaimer label is attached
which states: "To be sold as a joke item only. Not to be sold as
a condom."
ISSUE:
Whether the condom novelty is classified within heading 9505
as a practical joke article, heading 4014 as a hygienic or
pharmaceutical article of vulcanized rubber, or heading 4016 as an
other article of vulcanized rubber.
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LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUS. Most imported goods are classified
by application of GRI 1, that is, 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
Explanatory Notes (ENs) to the Harmonized Commodity Description and
Coding System, which represent the official interpretation of the
tariff at the international level, facilitate classification under
the HTSUS by offering guidance in understanding the scope of the
headings and GRIs.
Heading 9505, HTSUSA, provides, inter alia for practical joke
articles. The EN to 9505 indicates that the heading includes:
(B) Conjuring tricks and novelty jokes, e.g.,
packs of cards, tables, screens and containers,
specially designed for the performance of
conjuring tricks; novelty jokes such as sneezing
powder, surprise sweets, water-jet button-holes
and "Japanese flowers."
In determining whether merchandise qualifies as a practical
joke article, Customs has utilized the standard articulated in
Parksmith Corporation v. United States, 67 Cust. Ct. 405, 408 C.D.
4304 (1970). In that decision, the court reviewed several
dictionary and court case definitions of the term "practical joke,"
determining that a practical joke article is one which causes humor
by "somehow placing an individual at a disadvantage through a trick
or prank."
Accordingly, in Headquarters Ruling Letters (HRL's) 952472,
issued February 8, 1993 and 950564, issued March 13, 1992, a
Strobie Ghost consisting of a battery operated ghost figure
emitting screams and flashing lights and Mr. Piddle Bib, a penal
bib with brightly colored tie strings to be worn around one's hips,
both were classified as other than practical joke articles. On the
contrary, in HRL's 953187, issued August 5, 1993, 953188, issued
May 18, 1993, and 089529, issued October 1, 1991, rubber squirt
figures which when squeezed emitted water from the figure's mouth
and Weepy the Wee Wee consisting of a figure which, when his pants
were pulled down, would squirt water out from a hole in the front
pelvic area, were classified as practical joke articles. In the
latter decisions, as opposed to the former decisions, Customs
maintained that the merchandise would surprise and/or trick an
individual, placing them at a humorous disadvantage.
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It is our opinion that the subject merchandise, although
humorous, does not surprise and/or trick an individual nor place
one at a humorous disadvantage. Pursuant to the applicable EN and
the definition articulated in the Parksmith case, the condom
novelty does not qualify as a practical joke article and must be
classified elsewhere.
Heading 4014, HTSUSA, provides for hygienic or pharmaceutical
articles, of vulcanized rubber. The EN to 4014 indicate that the
heading includes, inter alia, sheath contraceptives. However,
after consulting with vendors of this type of merchandise, it is
our position that because the articles include a stick glued to
the condom, as well as a humorous label and ribbon, that it is
unlikely the article will be sold and used as a hygienic or
pharmaceutical article, e.g., as a contraceptive, but instead as
a unique novelty item. The article is not classifiable within
heading 4014.
Because no HTSUS heading provides for the merchandise, as a
whole, it is not classifiable at the GRI 1 level. Thus, we turn
to GRI 3(a) to classify the article in the HTSUS heading providing
for one of its components: either the condom (i.e., vulcanized
rubber), the stick, or the bow. Pursuant to GRI 3(a), because each
of the possible headings providing for these components refers to
only part of the article, the headings are regarded as equally
specific and we classify the article by GRI 3(b).
GRI 3(b) provides that articles made up of different
components, that is, composite goods, shall be classified as if
they consisted of the component which gives them their essential
character. "Essential character" is the attribute which strongly
marks or serves to distinguish what an article is. EN VIII to GRI
3(b) explains that bulk, quantity, weight, value or the role of a
constituent material in relation to the use of the article are
indicia of essential character.
Because the condom, or vulcanized rubber, portion of the
article distinguishes the article as a novelty, while the other
components, i.e., the stick and bow, merely are included as part
of the novel presentation of the condom, the condom component
imparts the article's essential character. The entire article is
classified in the heading providing for the condom, or vulcanized
rubber.
As explained above, because neither the article, in its
entirety, nor the vulcanized rubber component itself may be
classified within heading 4014 providing for hygienic or
pharmaceutical articles, the vulcanized rubber article is
appropriately classified within heading 4016 as other articles of
vulcanized rubber. However, at the eight digit subheading level,
subheading 4016.99.35 provides for other articles of vulcanized
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rubber other than hard rubber, of natural rubber, while subheading
4016.99.60 provides for other articles of vulcanized rubber other
than hard rubber, other (than natural rubber).
Legal Note 4 to Chapter 40 states that for tariff purposes,
the expression "synthetic rubber" applies to, "unsaturated
synthetic substances which can be irreversibly transformed by
vulcanization with sulfur into nonthremoplastic substances which,
at a temperature between 18 and 29 degrees Celsius, will not break
on being extended to three times their original length and will
return, after being extended to twice their original length, within
a period of 5 minutes, to a length not greater than 1-1/2 times
their original length." On January 27, 1994, you stated
telephonically that the vulcanized rubber is not natural rubber,
but synthetic rubber. Assuming that the vulcanized rubber is in
fact synthetic rubber, as you state, and it meets the definition
of synthetic rubber as referred to in Legal Note 4, the appropriate
subheading is 4016.99.60.
HOLDING:
The condom novelty is classified in subheading 4016.99.60 as,
"Other articles of vulcanized rubber other than hard rubber: Other:
Other: Other: Other: Other." The general column one rate of duty
is 5.3 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division