CLA-2 RR:CR:GC 962595 JRS
Ms. Rose Beltran
Alliance Customs Clearance Inc.
100 Oceangate, Plaza 200
Long Beach, CA 90802
RE: "Monster Eye" Assortment straws; Revocation of NY B87341; NY A85583 affirmed
Dear Ms. Beltran:
On July 22, 1997, Customs issued New York Ruling Letter (NY) B87341 to your company on behalf of TRSG, Inc. (formerly PFS, a Division of PepsiCo, Inc.) regarding the tariff classification of the "Taco Bell Eyeball Straw." The straw sample was classified under subheading 3917.32.60 of the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed that ruling and determined that the classification provided is not correct. Therefore, NY B87341 is revoked. A notice of proposed revocation of New York Ruling Letter (NY) B87341, was published in Vol. 33, No. 17 of the Customs Bulletin dated April 28, 1999.
Samples of the "Monster Eye Assortment" (Item No. 53095) were submitted for our examination. We also examined a similar but not identical "Taco Bell Eyeball Straw" ruled upon in NY A85583, dated July 19, 1996.
FACTS:
The merchandise is identified as the "Taco Bell Eyeball Straw." The "Monster Eye Assortment" (Item No. 53095) consists of six different colors and designs of plastic eyeballs and straws. All the plastic straws are twirled or looped around a securely attached plastic eye "socket" which is located near the upper portion of all the straws. The eye socket is fitted with a "floating eyeball" which is easily removable from the socket. The plastic eyeball "socket" is a holder designed with "veins" and "lashes" to represent both an eye socket and eyelid. The "floating eyeball" is a 1½" diameter clear ball that has an inner ball of an "eyeball" with a balance weight and glow-in-the-dark properties and it is filled with a clear liquid (presumably water).
Each eyeball straw is packaged in an individualplastic bag. On the front of the plastic bag is the name of the particular "Monster Eye Assortment" straw contained therein. The name of the toy portion (i.e., "Alien Eye," "Nasty Eye," "Shattered Eye," "Serpent Eye," "Brain Eye," and "Monster Eye") is written in colored lettering at the top of the package in large type. The plastic packaging also contains consumer product safety information, i.e., "Recommended for children ages 3 and up." On the back of the bag is a drawing or diagram of the item demonstrating how the eyeball can be easily removed from the socket. Written on the back of the bag is a recommendation, in English and French, to pop the eyeball out of the eye socket "for extra fun." In addition, the following recommendation appears at the bottom of the bag in bold typeface: "Hand wash before and after each use, not dishwasher safe."
Each straw measures approximately 13½ inches in height, which is larger than the 8 inch straws ordinarily available. The straw is functional in the abstract. The "eyeball" straw is a Halloween promotional item for the "fast food" restaurant.
ISSUE:
Whether the "Monster Eye Assortment" is classifiable as drinking straws under heading 3917, HTSUS, or as toys under heading 9503 for tariff purposes.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI’s) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states in pertinent part that "for legal purposes, classification shall be determined according to the terms of the headings 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 GRI’s may then be applied.
The following headings are relevant to the classification of this merchandise:
3917 [t]ubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics
9503 [o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof
Chapter 39 of the HTSUS provides for plastics and articles thereof and Chapter 95 covers toys, games and sports equipment and part and accessories thereof. Chapter Note 2 (v) to Chapter 39 states that this chapter does not cover: “[a]rticles of [c]hapter 95 (for example, toys, games, sports equipment).” We must determine whether the "eyeball" straw as an article is classifiable as a toy for tariff purposes. If so, it is excluded from classification in heading 3917 by operation of Note 2(v) to Chapter 39.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The term "toy" is not defined in the tariff. 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.
There is no disagreement that the "Monster Eye" portion of the article by itself is a toy. We note that an identical plastic "eyeball" (except for it possessing no glow-in-the-dark properties) was classified as "other toys" under subheading 9503.90.00, HTSUS in NY A85583, dated July 19, 1996. The question is whether incorporating the "Monster Eye" with this particular design of straw with a plastic eye socket/holder is a toy in its own right, or rather is a toy with a novelty straw as in NY A85583. We must examine the use of this article to determine whether the entire article is properly a toy. See HQ 959784, dated March 25, 1997. To be classified as a toy, the "Monster Eye" Assortment would need to be principally used for amusement. When an article has the potential for both amusement and utility, the question of determining whether it is converted to a toy becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes are incidental to the amusement. Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977).
The use of the "eyeball" straw of NY B87341 as a drinking straw is severely limited by its physical characteristics, that is, its shape (design/structure), its height or size, and most particularly, its weight. The design of the "eyeball" straw depends upon the "eye socket" to complement the design of the eyeball. In the socket, the eyeball fits snugly while its contents (inner ball and liquid) are able to freely rotate and move. The eye socket is located within a twirled or looped section of the upper portion of the straw which makes the straw top-heavy or unstable even when the "eyeball" is removed. The eye socket is securely attached to the straw by a circular piece of plastic that is very inflexible. As such, it is removable from the straw only with great difficulty and not without damage to the straw while pulling it through the various loops, twists and turns. Once removed, the socket is extremely difficult to reattach. In comparison, the eyeball pops in and out of the socket easily but the socket is neither easily removed from the straw nor easily reattached. It is apparent from its structural design that the eye socket holder was not intended to be removed from the straw since it is in all practicality permanently affixed to the straw.
The "eyeball" straw measures 13½" in height. This is in contrast to the 8-inch drinking straws ordinarily available. The height of the "eyeball" straw makes its use as an ordinary straw more difficult since one needs to use a very large or weighty container (e.g., glass) to prevent it from falling over. The size of cup which would most likely be bought by parents for small children, “ages 3 and up,” who are the target marketing group for this item is the small child-sized cup. We note the height of a 13½” straw is not feasible with the use of a child-sized beverage container.
In addition to the height, the straw’s instability is also attributable to its design of having an eye socket holder affixed more than halfway up the shaft of the straw. The instability of the straw becomes further exaggerated when the weighty eyeball is inserted into the socket. The total weight of the "eyeball" straw, that is, the straw, socket and eyeball attached, is approximately 2.5 oz. When weighed separately, the eyeball toy is 1.9 oz, which is more than three times the weight of the straw with the eye socket. The ordinary drinking straw is very lightweight and does not even register on a digital postal scale which weighs in tenths of an ounce.
We tested the "eyeball" straw with and without the "Monster Eye." The limitations of using this straw assortment as drinking straws were evident when we attempted to use the straw with a few cups. Placing the straw with the eyeball inserted into the eye socket in an empty 16 oz., 20 oz., or 32 oz. size paper cup resulted in the cups tipping over from the height, weight and structure of the item. Placing the same straw in filled 16 and 20 oz. cups of the same size required that one hold the straw upright while drinking through it and carefully removing it from the cup between sips to prevent spills. Although the 32 oz. cup was somewhat easier, one was required to exercise care, particularly at the point when the beverage toward the bottom of the cup was consumed. The spilling of beverages is not a desired result in using a straw.
The straw even without the eyeball attached is severely restricted functionally due to its cumbersome design of an essentially fixed eye socket holder. Using the "eyeball" straw as a straw with the eyeball removed from the socket in an empty 16 oz. or 20 oz. size cup still caused the cup to fall over; in an empty 32 oz. cup, unless it was carefully balanced in the cup, the straw still caused the cup to fall over. Using the straw with only the empty eye socket in a filled cup of all three sizes was possible, but care was required to prevent spills, particularly at the point when the beverage toward the bottom of the cup was being consumed.
It is noted that the size of cups used above (16, 20 and 32 ounces) are not the size of containers likely to be used by young children who are among the intended users of the "Monster Eye" Assortment. The "kids’ meal" cups are smaller in size. It is easy to picture a child’s parent, upon examining the weight of the item, not allowing the item’s use in a beverage cup in order to prevent messy spills. Customs is of the opinion that the "eyeball" straw’s utilitarian use as a straw has definite limitations for general use due to its weight, height, and awkward design, even without the eyeball inserted, and its associated spilling problems.
What sets the "Monster Eye" Assortment apart from a novelty straw is not just its weight and size, but the fact that it invites one to play with it. We observed two children with the "Monster Eye" Assortment. The following observations demonstrate that the "Monster Eye" assortment was designed primarily for the amusement of children rather than for the purpose of providing a decorative means of sipping beverages:
-it is fun for a child to pop out the brightly colored and creepy eyeball from its socket and to roll it across a table or floor;
-it is fun to watch the eyeball watching you as it rolls across the table or floor (the eye is designed to continuously look "up" as it rolls across a surface);
-it is fun to spin the eyeball in place and watch it spinning;
-it is fun to shake the eyeball around and look at it “float” in the liquid contained inside the eyeball;
-it is fun to look at the scary or gory designs and to compare the six different ghoulish designs to each other;
-it is fun to see how the eyeball looks in the socket with its “veins” and “lashes;”
-it is fun to insert the eyeball back into the colorful socket and see the eyeball watching you through the various placed “holes” in the socket, no matter which way you hold or turn the straw;
-it is fun to spin or twirl the straw around in order to cause the eyeball to “float” and spin around in the socket;
-it is fun to see the eye portion of the eyeball glow in the dark;
-it is fun to spin, twirl or wave the straw about in the dark and watch the spinning or streaking glow of the glow-in-the-dark eye as it moves about inside the socket.
Based on the features listed above, the "eyeball" straw has an overwhelming attraction as a play object and the straw acts as a delivery device for holding a large and heavy "eyeball" toy which adds to its play function as a wand or handle. The children, immediately upon receiving the item, started to take it apart and play with it as discussed above without ever trying to drink through the straw. Due to its great appeal as an article of amusement and the marketing of the article as such by the "fast food" restaurant for its Halloween program and its limitations as a usable straw, the article is bought primarily because of its play value and not because it has a utilitarian purpose. The use of the straw as a means of sipping beverages is limited by its height, weight and overall design. We find that the overwhelming attraction as a play article outweighs its limited utilitarian function. The appeal of the article comes from the various play aspects it affords and not from the fact that it may have some use as a straw. The appeal of the "Monster Eye" Assortment is that of a toy, an article of amusement.
We note that the retail packaging does show suggested age proscriptions that typically appear on retail packaging for toys containing small items. Also, the design and cost of the "eyeball" straw is evidence that the article was not intended for utilitarian use. One would not construct a utilitarian straw with a costly balance weight (that is, the "eyeball" is six times the cost of the straw and six times the cost of the socket) for a decorative ornament since the weight of the eyeball and socket take away from its functionality as a straw.
In NY A85583, issued July 19, 1996, Customs ruled upon a similar but not identical floating eyeball with a plastic straw approximately 11½ inches in height. The "floating eyeball" is a 1½" diameter clear ball that has an inner ball of an "eyeball" with a balance weight and is filled with a clear liquid (presumably water). Customs held in NY A85583 that the "eyeball," which was fitted within the twirled section of the straw, was separately classified under subheading 9503.90.0030, HTSUS, as a toy and the drinking straw itself was separately classified under subheading 3917.32.60, HTSUS, as an other tubes, pipes and hoses.
NY A85583 is correct as applied to that particular design of an "eyeball" straw. Customs found that the straw and eyeball were not a composite good as the "eyeball" was easily removed from the twirled section of the straw and the "eyeball" could be purchased separately from the straw. The straw of NY A85583 functions independently from the "eyeball" toy as an ordinary drinking straw and its use is not restricted by either the removable "eyeball" or the awkward eye "socket" attachment of NY B87341. After the "eyeball" is initially removed from the straw by a child, it is unlikely that the toy would be replaced within the twirled section of the straw for two reasons. First, the "eyeball" weighs down the straw and negatively impacts on the straw’s functionality as a usable straw (i.e., the straw with the "eyeball" tips over a paper or plastic "fast food" beverage cup quite easily when the straw is not held). Secondly, the straw does not directly impact upon the play value of the "eyeball." For instance, a child would be absorbed in play by rolling the "eyeball" across the table to observe that the "eyeball" always remains looking "up" and abandon the straw altogether. NY A85583 is affirmed as the "eyeball straw" was properly classified as two distinct articles, a toy and a straw.
By contrast, the play value of the "eyeball" straw toy in NY B87341 is very dependent upon the straw’s design. The difference between NY A85583 and NY B87341 is that when the "eyeball" is removed from the socket holder of the "Monster Eye" straw, it is very likely that the child will replace the "eyeball" back into the socket holder attached to the straw. The "Monster Eye" straws of NY B87341 function as attractive holders for the "eyeball" toy and as a means of carrying around the "eyeball" for "scary" display and fun.
Based upon NY A85583, Customs erred in failing to consider the "eyeball" portion of the "Monster Eye" straw in NY B87341. As such, NY B87341 is revoked to reflect the proper classification of the "Monster Eye" Assortment design as a toy under GRI 1. The article is specifically described in heading 9503 and as such is not properly classified under Chapter 39. See Note 2(v) to Chapter 39.
HOLDING:
Under GRI 1, the "Monster Eye" assortment straws are classified as eyeball "toys" under subheading 9503.90.0045, HTSUS, the provision for "...other toys and models," with a free rate of duty.
EFFECT ON OTHER RULINGS:
NY A85583 is affirmed. NY B87341, dated July 22, 1997, is revoked.
In accordance with 19 U.S.C.1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
John Durant, Director
Commercial Rulings Division