OT:RR:CTF:CPMM H308907 KSG
RE: Internal Advice Request; Tariff classification of Pop Up toys Dear Port Director:
This is in response to the ruling request, dated January 16, 2020, initiated by counsel on behalf of Imaginings 3, Inc., concerning the proper tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of Pop Up's, a plastic item designed to hold a lollipop. The Pop Up toys are currently being entered in the Port of Chicago (3901) and so we have converted the ruling request to an internal advice request for entries not yet liquidated. After a telephonic meeting requested by counsel was held on July 28, 2020, counsel withdrew Imaginings’ request for Headquarters to address the country of origin marking of the articles.
FACTS:
Imaginings 3, Inc. is the importer of articles called Pop Ups, which is a plastic item which is designed to hold a lollipop.
The imported articles are hinged Pop UpsTM featuring plastic three dimensional representations of the heads and, in some cases, head and torso, of various animated characters and a spring mechanism.
The two halves of the "head" are attached on pivot hinges to a tube-shaped plastic base that houses the spring mechanism, which is actuated by a slide button to open and close the head. The product is designed so that the head claps closed with a loud popping sound. The lollipop is revealed when the head is opened. The Pop Ups measure approximately 5 inches in height. The lollipops are separately imported.
ISSUE:
Whether the articles described above are a children's toy of heading 9503 or other articles of plastic of heading 3926.
LAW AND ANALYSIS:
Classification under the 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 2 through 6 may then be applied in 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
Chapter Note 2(y), Chapter 39, HTSUS, excludes articles of chapter 95 and specifically, toys from classification in chapter 39. Therefore, the first determination we must make is whether the articles are classified in chapter 95 as a toy and therefore, excluded from chapter 39.
In Processed Plastic Co. v. United States, 473 F.3d 1164 (Fed. Cir. 2006), the court held that “the principal use of a "toy" is amusement, diversion, or play … rather than practicality. To assist in the determination of whether an article should be classified as a toy or not, the court in Ideal Toy Corp. v. United States 78 Cust. Ct. 28, 33, Cust. Dec. 4688 (1977) stated “[w]hen amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose incidental to the amusement. Various factors can are suggestive, but not dispositive, in determining if an article has the principle use as amusement. Such factors include the general physical characteristics, expectation of the ultimate purchaser, usage, economic practicality. In Simon Marketing, Inc. v. U.S., 395 F. Supp. 2d 1280 (Ct. Int'l Trade, 2005), the court examined a watch embellished with characters from the movie “A Bug’s Life." Using the same factors, the court found that “based on its shape, design, and minimal interactive value” the watch was not principally used for amusement. Id. at 1288.
In Headquarters Ruling Letter (HQ) H238798, dated May 18, 2020, we considered the classification of a similar product called a Lip Pop. It was imported as an article with a piece of candy attached to plastic that was designed to look like a mouth. The issue in that case was whether pursuant to GRI 3(b), the candy of heading 1704, HTSUS, or the plastic piece of heading 3926, HTSUS, provided the essential character to the composite good. This case is distinguishable because it is imported without the candy and is classified in accordance with GRI 1.
In New York Ruling Letter (NY) B80690, dated January 22, 1997, CBP classified a plastic article incorporating a lollipop candy called "Monster Mouth" in heading 9503, HTSUS, as a toy. The Monster Mouth is composed of a 3 1/2 inch length plunger unit attached to a monster head. When the plunger is pushed it causes the monster's mouth to open wide. Upon drawing back on the plunger, the mouth snaps closed. The item features a lollipop designed to resemble a grotesque looking tongue. Upon insertion of the lollipop into the unit, the candy tongue will withdraw and pop out of the monster's mouth as the plunger is manipulated. Although the toy operates as a handle for the lollipop, it has amusement value beyond just being the holder of the lollipop. In NY G86293, dated January 22, 2001, a plastic and plush candy dispenser in the shape of a panda was classified in heading 9503, HTSUS, as a toy.
While it is not the case that the mere display of a well-known character creates a product designed for amusement, the articles in this case have an interactive component designed and used for amusement, diversion or play like the Monster Mouth in NY B80690. Although the plastic unit operates as a handle/dispenser for the lollipop, the amusement component of the Pop Ups exceed its function as a holder of the lollipop. Therefore, we conclude that pursuant to GRI 1, the Pop Ups are classified in heading 9503, HTSUS, as toys.
These articles are labeled for use by children four year of age and older. Therefore, pursuant to GRI’s 1 and 6, the Pop Ups are classified in subheading 9503.00.0073, 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: Other: Labeled or determined by importer as intended for use by persons: 3 to 12 years of age.”
HOLDING:
Pursuant to GRI’s 1 and 6, the Pop Up's are classified in subheading 9503.00.0073, 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: Other: Labeled or determined by importer as intended for use by persons: 3 to 12 years of age.” The column one, general rate of duty is Free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the world wide web at www.itc.gov.
You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
for
Craig T. Clark, Director
Commercial and Trade Facilitation Division
cc: NIS Roseanne Murphy, NCSD