CLA-2-90:OT:RR:NC:N4:405
Robert Glover L.E. Coppersmith, Inc. 525 South Douglas Street
El Segundo, CA 90245
RE: The tariff classification of glass sex toys from China.
Dear Mr. Glover:
In your letter dated January 25, 2011, on behalf of Pipedream Products, you requested a tariff classification ruling. No samples were provided.
The merchandise at issue consists of three hand-blown glass “massagers” known as Icicles. You indicate that the Icicles are used for sensual “massage,” especially of the interior of the vagina. There are three models of Icicle described in your ruling request. Item # PD2919-00 contains a vibrating mechanism, while Item #s PD2905-00 and PD2911-00 do not. Each Icicle is roughly cylindrical in shape, with a variety of ridges and knobs incorporated into the glass surface (the patterns of which vary depending on the model). Exact dimensions of each Icicle are not provided, but the Pipedream website provides the following description:
“Elegant, upscale, and hand-crafted with amazing attention to detail, this luxurious line of glass massagers will leave you breathless. Each hand-blown Icicle glass wand is sleek, unique, and made to play hard. The hypoallergenic glass is nonporous and body safe, and when cared for properly is designed to last a lifetime.”
The vibrating Icicle, item # PD2919-00 requires two AA batteries to power the vibrating mechanism. You suggest classification of the three Icicles in Subheading 9019.10.20, HTSUS, which provides for mechano-therapy appliances and massage apparatus. You cite Headquarters Ruling Letter (HRL) H053897, dated May 3, 2010, to support your assertion. In that ruling, it was determined that a vibrating condom ring was classifiable in Heading 9019. HRL H053896, also dated May 3, 2010, came to a similar conclusion about a finger vibrator (a device designed to provide “intimate pleasure”).
Regarding the massage apparatus of HTSUS 9019 in general, HRL 960011, dated September 23, 1998 (as well as HRL W968399, dated May 5, 2007, et al.) stated, "It is Customs view that the massage apparatus of heading 9019, HTSUS, must provide a therapeutic benefit." Those rulings have not been revoked or modified. However, HRL H053896 and also H053897, both concerning vibrating sex toys and both published in the Customs Bulletin of May 26, 2010, stated, "The text of heading 9019, HTSUS, does not require that a massage apparatus provide a therapeutic benefit."
Therefore, CBP classifies vibrating massage apparatus, including vibrating sex toys designed for sexual pleasure, in Subheading 9019.10.20 (Also see NYRLs N117042 and N117043, both dated August 10, 2010). Taking these facts into account, Icicle PD2919-00 is classified in 9019.10.20, as it contains a vibrating mechanism and is used in the same manner as the articles described in the abovementioned ruling letters.
Icicles PD2905-00 and PD2911-00 do not contain a vibrating mechanism. These non-vibrating Icicles are similar in form and function to the devices described in NYRLs L85113 and N034769, dated May 24, 2005 and August 18, 2008 respectively. Both of those ruling letters concern erotic massagers, or dildos, made from plastic. The dildos described in both rulings are intended to be used in the same manner as the non-vibrating Icicles, and neither was classified in Heading 9019. As these rulings were not revoked by HRLs H053896 and H053897, the decision reached in those two Headquarters rulings was not intended to apply to non-vibrating sex toys. As a result, the two non-vibrating Icicles would not be classified in Heading 9019, but rather classified based on the material they are made from (in this case, glass). The applicable subheading for Icicle PD2919-00 will be 9019.10.2020, Harmonized Tariff Schedule of the United States (HTSUS), which provides for handheld, battery powered massage apparatus. The rate of duty will be free. Regarding the classification of Icicles PD2905-00 and PD2911-00, we are returning your request for a ruling and any related samples, exhibits, etc. We require additional information in order to issue a ruling on these two articles. Please provide the following information:
For each article, please indicate the unit value. Unit value refers to the price at which a single article is sold by the foreign firm to the American importer.
For each article that is colored, indicate whether the item the item is colored prior to solidification, simply painted on the surface or colored in another manner. If colored prior to solidification, identify the precise chemical or mineral name of the source of color (pigment or dye) inserted into the glass. If colored prior to solidification, please indicate whether the article contains bubbles, seeds or stones, and whether it contains any fining agents (e.g., antimony or arsenic oxides or dioxides) which stifle the formation of bubbles, seeds or stones. If the item contains fining agents, identify the precise chemical or mineral names of these agents.
Indicate whether any of these articles include a ribbon-like effect made of glass that has been inserted into the larger glass article prior to solidification.
Describe the precise method of manufacture for each of these articles and the precise manner in which any special effects are created (e.g., made of glass and inserted prior to solidification).
Please submit a sample of each article.
These products may be subject to regulations and restrictions of the Food and Drug Administration (FDA) and the Consumer Product Safety Commission (CPSC).
If you have any questions regarding FDA requirements, you may contact the FDA at: Food and Drug Administration, Division of Import Operations and Policy, 5600 Fishers Lane, Rockville, Maryland 20857, Telephone: 1-888-463-6332.
Information on import compliance regulations and restrictions administered by the CPSC may be obtained by contacting the U.S. Consumer Products Safety Commission at 4330 East West Highway, Bethesda, MD 20814, telephone (301) 504-7912, or email: [email protected].
If you decide to resubmit your request, please include all of the material that we have returned to you and mail your request to U.S. Customs and Border Protection, Customs Information Exchange, 10th Floor, One Penn Plaza, New York, NY 10119, attn: Binding Rulings Section.
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 World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the additional information requested to classify Icicles PD2905-00 and PD2911-00, contact National Import Specialist Jacob Bunin at (646) 733-3027. If you have any other questions regarding the ruling, contact National Import Specialist J. Sheridan at (646) 733-3012.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division