CLA-2 RR:TC:GC 959558 MMC
Port Director of Customs
300 S. Ferry Street
Terminal Island, CA 90731
RE: Protest 2704-96-100356; Spiderman and Wolverine Maze Candy ,
Bubble Gum Comic and Bubble Fax
Dear Port Director:
This is our decision on Protest 2704-96-100356, concerning your
action in classifying and assessing duty on articles identified as
Spiderman and Wolverine Maze Candy , Bubble Gum Comic and Bubble
Fax , under the Harmonized Tariff Schedule of the United States
(HTSUS). Samples of the Wolverine Maze Candy and Spiderman Bubble
Fax, as well as literature from the protestant's catalog containing a
picture and descriptions of the subject articles were submitted for
our review. In preparing this decision consideration was also given
to arguments presented by counsel for the protestant in an additional
submission made June 28, 1998. We regret the delay in responding.
FACTS:
Three different articles, Spiderman and Wolverine Maze Candy ,
Bubble Gum Comic and Bubble Fax , are the subject of this protest.
All three articles are bi-level lidded cases which hold chewing gum.
They measure approximately 4 inches long by 3 inches wide by 1«
inches deep.
The top level of the Maze Candy is a plastic three-dimensional
maze. The bottom level is a storage unit for gum. The Maze Candy
operates by dispensing a piece of tiny chicklet-like gum through a
gated gear at the top of the maze. The user then maneuvers the
released piece through the maze to an opening at the bottom.
The bottom level of the Bubble Fax stores rectangular strips of
gum under a removable smooth plastic slab. The top level consists of
a plastic slab with a raised "Super Hero" on each side. The article
operates by placing a piece of gum on the smooth slab and the closing
the top level and pressing, thereby embossing the outline of the
stenciled character onto the gum. The gum and raised stenciled slab
are then flipped over to repeat the process with a new "Super Hero."
Finally, the lower level of the Bubble Comic stores gum while
the upper level opens to reveal an
accordion folded comic strip which appears to be attached at each
end to the plastic outside cover and compartment divider.
Protestant asserts that all three articles are classifiable
under heading 9503, HTSUS, as toys. The entry, made in 1995, was
liquidated on November 13, 1995, and a protest was timely filed on
January 30, 1996. The headings under consideration are:
3923 Articles for the conveyance or packing of goods, of
plastics; stoppers, lids, caps and other closures, of
plastics
3924 Tableware, kitchenware, other household articles and toilet
articles of plastics
4911 Other printed matter, including printed pictures and
photographs
9503 Other toys; reduced-size ("scale") models and similar
recreational models, working or not; puzzles of all kinds;
parts and accessories thereof
9504 Articles for arcade, table or parlor games, including
pinball machines, bagatelle, billiards and special tables
for casino games; automatic bowling alley equipment; parts
and accessories thereof
ISSUE:
Whether the Spiderman and Wolverine Maze Candy , Bubble Gum
Comic and Bubble Fax are classifiable as containers, toys, games,
printed matter or other plastic articles.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of the
Harmonized System is such that virtually all 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.
Note 2(v) of Chapter 39, HTSUS, states that: "[t]his chapter
does not cover:...[a]rticles of chapter 95 (for example, toys, games,
sports equipment.)." Therefore, we must first determine whether the
Maze Candy, Bubble Gum Comic and Bubble Fax are classifiable as toys
or games for tariff purposes. If so, they are excluded from
classification in headings 3923 and 3924, HTSUS, by operation of Note
2(v) to Chapter 39.
The term "toy" is not defined in the HTSUS. However, in
understanding the language of the HTSUS, the Explanatory Notes (ENs)
of the Harmonized Commodity Description and Coding System may be
utilized. The ENs, although not dispositive or legally binding,
provide a commentary on the scope of each heading, and are generally
indicative of the proper interpretation of the HTSUS. See, T.D.
89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The ENs to Chapter 95 state, in pertinent part, that "[t]his
Chapter covers toys of all kinds whether "designed for the amusement
of children or adults." Although not set forth as a definition of
"toys," we have interpreted the just-quoted passage from the ENs as
equating "toys" with articles "designed for the amusement of children
or adults," although we believe such design must be corroborated by
evidence of the articles' principal use.
When the classification of an article is determined with
reference to its 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.
While Additional U.S. Rule of Interpretation 1(a), HTSUS,
provides general criteria for discerning the principal use of an
article, it does not provide specific criteria for individual tariff
provisions. However, the U.S. Court of International Trade (CIT) has
provided factors, which are indicative but not conclusive, to apply
when determining whether merchandise falls within a particular class
or kind. They 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. United States v. Carborundum Company, 63
CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S.
979.
The physical characteristics of the Spiderman Bubble Fax
indicate that it is classifiable as a toy. While it has a container
component, it also has a significant portion which has manipulative
play value. In addition to holding gum, the Bubble Fax allows a user
to create "Super Hero" character impressions on their gum. Moreover,
the container is not the usual one used for packing and conveying
chewing gum to users. Furthermore, the subject article with gum
retails for approximately $3.00; a price much higher than that paid
for gum in its usual container. Such a high price suggests that
these articles are purchased for their amusing features, namely the
maze portion and embossing portion. These portions of the articles
are also the ones which depict the named "Super Hero's," further
indicating their amusing nature. The Spiderman Bubble Fax is
classifiable under subheading 9503.90.0030, HTSUS, which provides for
"[o]ther toys; reduced-size ("scale") models and similar recreational
models, working or not; puzzles of all kinds; parts and accessories
thereof: [o]ther: [o]ther: [o]ther toys (except models), not having a
spring mechanism.
The term "game" as used in the tariff has come to refer to a
competition or contest for recreation or amusement between two or
more players or between one person and the game itself which involves
skill, chance, endurance or any combination of these elements and
which is played according to rules either expressed or self-evident,
with a method or system of scoring and the object of winning as a
goal. See, Mego Corp. v. United States, 62 CCPA 14, CAD 1137 (1971).
We are of the opinion that primary purpose of the Wolverine
Maze Candy is a contest or competition against oneself with a
win/loose objective. The Wolverine Maze Candy provides for
individual use, involves the skill of negotiating an object through a
maze, the purpose of which is to "win" the piece of gum by
manipulating through the maze to the exit. As the Wolverine Maze
Candy falls within the scope of the tariff term "game", it is
described by heading 9504, HTSUS, specifically subheading
9504.90.9080, HTSUS, which provides for [a]rticles for arcade, table
or parlor games, including pinball machines, bagatelle, billiards and
special tables for casino games; automatic bowling alley equipment;
parts and accessories thereof: [o]ther:[o]ther: [o]ther. As a result
of finding the Spiderman and Wolverine Maze Candy and the Bubble Fax
are properly classified in Chapter 95, classification elsewhere in
the HTSUS is precluded.
The Bubble Gum Comic too, is not a usual container for packing
and conveying of gum and retails for approximately $3.00, a price
much higher than that paid for gum in its usual container. However
its portion which depicts the named "Super Hero" has no manipulative
play value nor is it a game for tariff purposes. Rather, it is a
comic book. As such, it cannot be classified as a toy or game.
All three remaining headings, 3924, 3926 and 4911 describe the
Bubble Gum Comic. Therefore, it is not classifiable according to GRI
1. GRI 3(b) states, in pertinent part, that mixtures, composite
goods consisting of different materials or made up of different
components, and goods put up in sets for retail sale,... shall be
classified as if they consisted of the material or component which
gives them their essential character, insofar as this criterion is
applicable. EN IX to GRI 3(b) , pg. 4, states, in pertinent part,
that:
(IX) For purposes of this Rule, composite goods made up of
different components shall be taken to mean not only those
in which the components are attached to each other to form
a practically inseparable whole but also those with
separable components, provided these components are adapted
one to the other and are mutually complementary and that
together they form a whole which would not normally be
offered for sale in separate parts.
The Bubble Gum Comic has two components, a plastic container and a
comic, attached to one another, therefore it is a composite good.
Accordingly, we must determine whether the comic or plastic container
provides the essential character of the composite good.
In general, essential character has been construed to mean that
attribute which strongly marks or serves to distinguish what an
article is; that which is indispensable to the structure, core or
condition of the article. In addition, EN (VIII) to GRI 3(b), at
page 4, states that the factors which help determine essential
character will vary as between different kinds of goods. It may, for
example, be determined by the nature of the material or component,
its bulk, quantity, weight or value, or by the role of a constituent
material in relation to the use of the goods.
We are of the opinion that the comic book provides the essential
character of the Bubble Gum Comic. It alone contains the "Super
Hero" theme, a theme heavily marketed in the article's advertizing.
Furthermore, this is not the usual container for conveying gum. If
the user were purchasing the article for the gum and its container,
they could do so for a lower price and in a smaller container. As
the comic is the attribute which distinguishes the article, the
Bubble Gum Comic is classifiable under subheading 4911.99.8000,
HTSUS, which provides for [o]ther printed matter, including printed
pictures and photographs:[o]ther:[o]ther: [o]ther.
HOLDING:
The Spiderman Bubble Fax is classifiable under subheading
9503.90.0030, HTSUS, as "[o]ther toys; reduced-size ("scale") models
and similar recreational models, working or not; puzzles of all
kinds; parts and accessories thereof: [o]ther: [o]ther: [o]ther toys
(except models), not having a spring mechanism," with a 1995 general
column one free duty rate.
The Wolverine Maze Candy is classifiable under subheading
9504.90.9080, HTSUS, as [a]rticles for arcade, table or parlor games,
including pinball machines, bagatelle, billiards and special tables
for casino games; automatic bowling alley equipment; parts and
accessories thereof: [o]ther:[o]ther: [o]ther, with a 1995 free
column one duty rate.
The Bubble Gum Comic is classifiable under subheading
4911.99.8000, HTSUS, which provides for [o]ther printed matter,
including printed pictures and photographs:[o]ther:[o]ther: [o]ther
with a 1995 column one rate of duty of 4.4 percent ad valorem.
The protest should be DENIED, except to the extent
reclassification of the merchandise as indicated above results in a
partial allowance.
In accordance with section 3A(11)(b) of Customs Directive 099
3550-065, dated August 4, 1993, Subject: Revised Protest Directive,
this decision should be mailed by your office to the Protestant no
later than 60 days from the date of this letter. Any reliquidation
of the entry in accordance with this decision must be accomplished
prior to the mailing of the decision. Sixty days from the date of
this decision, the Office of Regulations and Rulings will take steps
to make the decision available to Customs personnel via the Customs
Rulings Module in ACS and to the public via the Diskette Subscription
Service, Freedom of Information Act and other public access channels.
A copy of this decision should be attached to the Customs Form 19,
Notice of Action on the protest, to be returned to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division