CLA-2 RR:CR:TE 961417 RH
Steven B. Zisser, Esq.
2475 Paseo de las Americas
Suite D
San Diego, CA 92173
Re: Classification of cosmetic pads; heading 9616; heading 5601
Dear Mr. Zisser:
This is in reply to your letter of February 20, 1998, on behalf
of your client, Wabbit, Inc., requesting a ruling on the
classification of "Cotton Clouds" cosmetic pads.
As you know, Customs recently published a decision on January 7,
1998, in the Customs Bulletin, Volume 32, Number 1, changing the
classification of your client's product from subheading
9616.20.0000 of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), as pads for the application of
cosmetics or toilet preparations, to subheading 5601.21.0000,
HTSUSA, as cotton wadding. That decision was referenced as
Headquarters Ruling Letter (HQ) 959678.
You now submit new facts which you believe warrant classification
of the cosmetic pads under subheading 9616.20.0000, HTSUSA.
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FACTS:
The merchandise under consideration is described as "Cotton
Clouds" cosmetic pads. They are 100 percent cotton and measure
1 by 2 inches. They are approximately ¬ inches thick. The
pads can be used to apply and remove cosmetics or toilet
preparation. They are sold in cosmetic departments of stores in
plastic packages containing 100 individual pads.
The current packaging for the "Cotton Clouds" states that they
are "100% Cotton Pads for Cosmetic Use." The packaging also
reads, in part:
GENTLE AND SOFT enough for baby's skin.
ECONOMICAL may be separated to desired thickness creating no
waste.
THE NATURAL way to remove makeup and cleanser, apply a
stringent, blend powder
or blush, even remove nail enamel.
EXCELLENT for baby use.
PERFECT for any use where a soft absorbent applicator is
needed.
You propose to change the language on the retail packaging to
remove all references to baby use, makeup removal, nail enamel
removal, etc. The proposed packaging will read:
"Cotton Clouds"
"For the Application of Cosmetics"
ISSUE:
Are the Cotton Clouds classifiable under heading 9616, HTSUSA, as
powder puffs and pads for the application of cosmetics or toilet
preparations, or under heading 5601, HTSUSA, as wadding in the
piece?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRIs). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes, taken in
their appropriate order. Heading 9616 provides, in part, for
"powder puffs and pads for the application of cosmetics or toilet
preparations."
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The Harmonized Commodity Description and Coding System
Explanatory Notes (EN), while not legally binding, are recognized
as the official interpretation of the Harmonized System at the
international level. The EN for heading 9616 state that the
heading covers:
Powder-puffs and pads for applying any kind of cosmetic
or toilet preparation (face-powder, rouge, talcum-powder, etc.). They may be made of any material
(swan's or eider-down, skin, animal hair, pile fabrics,
foam rubber, etc.), and they remain in this heading
whether or not they have handles or trimmings of ivory,
tortoise-shell, bone, plastics, base metal, precious
metal or metal clad with precious metal.
In HQ 959778, we held that "Cotton Clouds" were akin to cotton
balls classifiable under subheading 5601.21.0090, HTSUSA, because
they were a general-use product, not dedicated or solely used for
applying cosmetics.
We reexamined the issues you raised and considered your proposed
packaging. Despite the fact that the new packaging only
references the use of the product for the "application of
cosmetics", the merchandise itself is a potent witness for
establishing that the "Cotton Clouds" are used for many purposes
such as those listed on the original packaging. By being
previously in the market place with more general labeling, we
believe that there now exists a wide spread acceptance by
purchasers that cotton clouds can be used for numerous purposes.
Moreover, we found no features which would render the "Cotton
Clouds" classifiable as a product used exclusively for the
application of cosmetics. Accordingly, they will remain
classifiable in subheading 5601.21.0010, HTSUSA.
HOLDING:
The Cotton Clouds are classifiable under subheading 5601.21.0010,
HTSUSA, which provides for "Wadding of textile materials and
articles thereof; textile fibers, not exceeding 5 mm in length
(flock), textile dust and mill neps: Wadding; other articles of
wadding: Wadding, in the piece. It is dutiable at the general
column rate at 6.1 percent ad valorem, and the textile category
is 223.
Sincerely,
John Durant, Director
Commercial Rulings Division