CLA-2 OT:RR:CTF:TCM H177798 LWF
Mr. Michael S. McCullough
Vandegrift Forwarding Company, Inc.
9317 Cheshire Road
Sunbury, OH 43074
RE: Request for reconsideration of NY N162401, dated May 10, 2011; tariff classification of a plastic candy dispenser from China
Dear Mr. McCullough:
This is in response to your request for reconsideration of U.S. Customs and Border Protection (CBP) New York Ruling Letter (NY) N162401, dated May 10, 2011 and issued to Au’some Inc. (“Au’some”) concerning the classification of a plastic candy dispenser. Your request for reconsideration was received by CBP’s National Commodity Specialist Division (NCSD) in New York and was forwarded to this office for reply.
The issues addressed by this reconsideration ruling originated in a request for a ruling made on behalf of Au’some on April 13, 2011, pertaining to the tariff classification of a plastic candy dispenser from China. The resulting ruling, NY N162401, classified the candy dispenser, identified as a “Klik Ultra Candy Dispenser” (“Klik Ultra”), under subheading 3926.90.99, of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.”
In your request for reconsideration of NY N162401, you assert that the classification of the candy dispenser was in error and that the correct tariff classification is heading 9503, HTSUS, in particular subheading 9503.00.00, which provides for “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.”
FACTS:
The Klik Ultra Candy Dispenser is a molded plastic, miniature model of a PlayStation 3 Move wand-shaped controller. The Klik Ultra measures approximately 4¾ inches in length and is designed to be held in the hand. It is decorated with several non-functional buttons along the top of the wand.
A consumer loads disc-shaped sugar candies into the Klik Ultra through an opening at the base of the wand and can dispense the candy by means of a mechanical trigger located on the underside of the device. When the consumer depresses the trigger, the Klik Ultra ejects a piece of candy from an opening in the front of the wand. The candy is classified separately from the dispenser, and this ruling addresses only the classification of the Klik Ultra.
Illustrations on the front and back of the Klik Ultra’s packaging demonstrate how to properly load and dispense candy from the device. The packaging materials do not contain a depiction of a consumer using the Klik Ultra, nor do the packaging materials indicate any amusing value of the candy dispenser beyond its utilitarian function. Small warnings on the front and back of the packaging state that the Klik Ultra contains small parts not suitable for children under 3 years of age, that the Klik Ultra should not be aimed at the eyes or face, and to remove all packaging before giving the device to a child.
ISSUE:
Whether the Klik Ultra Candy Dispenser is classified under heading, 3926, HTSUS, as other articles of plastic, or under heading 9503, HTSUS, as a toy reduced-scale model.
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (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 may then be applied in their appropriate order.
The HTSUS headings under consideration are the following:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914
* * * * *
9503 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
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 9503, HTSUS, provides, in pertinent part:
(D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults).
* * * * *
Heading 9503, HTSUS, provides eo nomine, in pertinent part, for “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.” However, although neither the heading text nor relevant Chapter notes expressly state that an item’s classification as a “toy” of 9503, HTSUS, is dependent upon its use, the EN to heading 95.03, HS, describe “other toys” as “toys intended essentially for the amusement of persons. EN 95.03. (Emphasis added). Moreover, although the ENs are not legally binding, the United States Court of Appeals for the Federal Circuit (CAFC) has similarly held that classification as a toy under heading 9503, HTSUS, requires that the article be principally used as a “toy.” See StoreWALL, LLC v. United States, 644 F.3d 1358, 1365-66 (Fed. Cir. 2011) (citing Processed Plastic Co. v. United States, 473 F.3d 1164 (Fed. Cir. 2006)). The term “toy” has been found by the Courts to include “articles whose principal use is amusement, diversion, or play, rather than practicality.” Processed Plastic Co., 473 F.3d at 1169-70 (quoting Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020, 1027 (CIT 2000) (“We agree with the standard adopted in Minnetonka to determine whether merchandise should be classified as a toy.”)).
In the tariff context, “amusement” is considered in contrast to some utilitarian or functional quality, with particular focus placed on the design of the toy rather than the actual use of the toy. It has been CBP’s position that the “amusement” requirement means that a toy should be designed and used principally for amusement and should not serve a utilitarian purpose. See Headquarters Ruling Letter (HQ) 966046, dated May 16, 2003, and HQ 963638, dated November 2, 2001. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court stated that, “[W]hen amusement and utility become locked in controversy, the question becomes one of the determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement.” Therefore, if the level of amusement of the article is not sufficient to constitute its principal use, the article is not a toy. See United States v. Topps Chewing Gum, Inc., 440 F.2d 1384 (1973).
Consistent with the Courts’ guidance on the scope of heading 9503, HTSUS, CBP has previously ruled that an article is classifiable as a “toy” of heading 9503, HTSUS, when the amusement characteristics of the article outweigh its utilitarian function. For example, in ruling letter HQ 952186, dated April 29, 1993, CBP addressed the classification of a 3½ inches high plastic cartoon depiction of an M&M candy that also functioned as an M&M candy dispenser. CBP found that the anthropomorphic qualities and comical appearance of the M&M figure evoked emotion in an owner and demonstrated the inherent play value of the article. Empty of candy, the merchandise did not lose its inherent ability to provide amusement and enjoyment to children. While the article was functionally a candy dispenser, CBP concluded that the article was intended to function primarily as a toy and, therefore, properly classified under heading 9503, HTSUS, as a toy representing animals or non-human creatures.
By contrast, CBP has held that candy dispensers merely featuring anthropomorphic characteristics or other decorations secondary to a primarily utilitarian function are classified under heading 3926, HTSUS. See HQ H026238, dated June 4, 2009; NY M80611, dated March 2, 2006; and NY A86183, dated September 5, 1996. In ruling letter HQ H026238, for example, CBP classified a plastic Pez pocket-size candy dispenser that featured a “Snoopy” cartoon character head at the top of the dispenser in heading 3926, HTSUS, as other articles of plastic. Based on the small size of the dispenser and the ability of a consumer to load candy into the dispenser, CBP concluded in HQ H026238, that the Pez dispenser was designed to facilitate the consumer’s personal transportation and storage of candy and was properly classified under heading 3926, HTSUS.
Likewise, in ruling letter NY M80611, CBP classified two plastic Pez pocket-sized candy dispensers, one with the head of the Star Wars character Chewbacca and one with a ball with a painted-on “smiley face,” in heading 3926, HTSUS. Finally, in NY A86183, CBP addressed the classification of two battery-operated Pez and M&M candy dispensers that did not possess anthropomorphic or whimsical features in their design. There, CBP held that like non-motorized candy dispensers used as devices for the storing and transport of candy, the addition of a motorized dispensing mechanism did not transform the Pez and M&M dispensers into toys.
Unlike the merchandise at issue in HQ 952186, this office finds that the Klik Ultra dispenser does not possess any amusement value beyond its primary utilitarian function. The Klik Ultra contains no functional buttons apart from a trigger on the underside of the device, nor does the Klik Ultra possess anthropomorphic characteristics or other qualities that would evoke emotion in the consumer. Although counsel states that the primary purpose of the Klik Ultra is to provide amusement and only perform a secondary utilitarian function of dispensing candy, we have examined the Klik Ultra and have been unable to confirm the stated amusement function. While the ability of the Klik Ultra to eject or “shoot” candy pieces may provide some novelty value, the candy dispenser has little amusement function. Consequently, this office finds that the Klik Ultra is akin to the plastic Pez pocket-size candy dispensers classified by CBP in heading 3926, HSUS, in ruling letter HQ H026238. Like the Pez dispensers, the instant Klik Ultra appears to be nothing more or less than an inexpensive, but functional, device for the storage, transport, and dispensing of candy.
Moreover, this office disagrees with the assertion that the Klik Ultra’s “launching mechanism” provides amusement for a child while shooting candy at various targets. The Klik Ultra’s shooting feature is not prominently featured, and neither the Klik Ultra’s design nor its packaging materials indicate an amusement or play value beyond the utilitarian function of dispensing candy. Specifically, the packaging materials do not contain a single reference to the use of the Klik Ultra for shooting at targets.
We find that the utilitarian function of the Klik Ultra is not merely incidental. The manufacturer expended additional cost and effort to design and construct an article that is functionally relevant and capable of use by a consumer for the convenient storing, transport, and dispensing of candy pieces. The primary value of the Klik Ultra is its utilitarian value; the amusement aspect of the dispenser is incidental to the utilitarian function. Thus, this office concludes that the primary purpose of the Klik Ultra, with its compartment for loading and carrying candy pieces and dispensing mechanism, is not a toy of heading 9503, HTSUS. Consistent with CBP’s determination in ruling letter NY N162401, the Klik Ultra is properly classified in heading 3926, HTSUS.
HOLDING:
By application of GRI 1, the Klik Ultra Candy Dispenser is classifiable under heading 3926, HTSUS. Specifically, it is classifiable under subheading 3926.90.99, HTSUS, which covers “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The column one, general rate of duty is 5.3 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.ustic.gov.
EFFECT ON OTHER RULINGS:
NY N162401, dated May 10, 2011, is hereby AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division