United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1994 HQ Rulings > HQ 0951261 - HQ 0952146 > HQ 0951309

Previous Ruling Next Ruling

HQ 951309

April 26, 1993

CLA-2 CO:R:C:F 951309


TARIFF NO.: 9503.49.0020

District Director of Customs
Patrick V. McNamara Building
477 Michigan Ave.
Detroit, Michigan 48266

RE: Request for Further Review of Protest 3801-1-103422, dated December 27, 1991, Concerning a Coated Chocolate Candy Novelty Figurine Designed for Use as a Lid for Tubes of Candy

Dear Mr. Morandini:

This ruling is on a protest that was filed against your decision of October 4, 1991, in the liquidation of an entry covering the referenced item.


The article under consideration is a novelty skier figurine made of plastic. The face and body portion of figurine is a 3- dimensional round disk shaped like a M&M~ candy. There is a large letter "M" on the front thereof, like the actual candy, and a whimsical face. Arms and hands holding ski poles are appended to the sides of the disk. Legs, shoes and 1 1/2 inch skies are appended to the bottom of the disk. The skies are part of the top of the cap which is styled to represent a bank of snow. The cap, which is round, is slightly narrower in circumference below its top and has 4 four projections equally placed around its outer edge, apparently so that the cap will fit snugly into a tube to which it is affixed subsequent to importation, at the time the tube is filled with candy. A red stocking cap is affixed to the top of the disk. A string which goes through a hole in the hat permits the figurine to be hung.


What is the classification of the subject article?


Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

The importer states that the merchandise should be classified under subheading 3923.50.0000, HTSUSA, which provides for articles for the conveyance or packing or goods, of plastics; stoppers, lids, caps and other closures, of plastics. The merchandise was entered under that provision.

The merchandise was classified by Customs in subheading 9503.49.0020, HTSUSA, the provision for toys representing animals or non-human creatures.

We noted that the aforementioned provisions as well as subheading 3926.40.0000, HTSUSA, regarding statuettes and other ornamental articles, might apply to the article under consideration.

Since the article appears to be designed to function as a cap, classification in subheading 3923.50.0000, HTSUSA, as suggested by the protestant, appeared appropriate. While the article can function as a stopper or lid, several factors caused us to believe that was not its primary function. The article is much more substantial and larger than would be needed for a cap to hold candy in a tube. The value of each unit is rather significant, 22.5?, so as to cause one to conclude that such value may exceed the value of the tube filled with candy. It appears that the purpose of the article is to primarily give the plastic tubes of candy their commercial identity and, secondarily, to serve as a cap. We, therefore, have concluded that the article should not be classified as a cap or stopper although it can function in that capacity.

We considered the provision for statuettes and other ornamental articles. We consulted "The American Heritage Dictionary" regarding the meaning of these terms. The term "statuette" is defined as a small statue which, in turn, is defined as "[a] form or likeness sculpted, modeled, carved, or cast in material such as stone, clay, wood, or bronze". It defines an ornament as "[s]omething that decorates or adorns, embellishment". While the article, when broadly viewed, appears to generally meet the definition of a statue, although not made of the noted material, it does not appear to be of a nature that would traditionally be viewed as a statue. We also do not believe that it is designed to embellish anything to which it was attached or on which it is displayed. Accordingly, we do not believe that its primary function is to serve as a statuette.

We next considered the applicability of subheading 9503.49.0020, HTSUSA, which provides for other toys representing animals or non-human creatures. The article is obviously durable and is intended for extended use. Since the candy would be eaten shortly after purchase and there is no indication that the tube is the type of container that would be retained after its contents have been consumed, we have concluded that the article's primary function is to serve as something other than a cap. We believe that the article's anthropomorphic qualities are intended to amuse the owner thereof the same way as toys.

The Explanatory Notes (EN) to Chapter 95 of the Harmonized Tariff System as to toys, games and sports requisites, which represents the considered opinion of the tariff classification experts at the international level, specifies that the "chapter covers toys of all kinds whether designed for the amusement of children or adults." In order for an article to be classified as a toy it must provide enjoyment or amusement. It, however, does not have to be something with which the possessor thereof physically plays, as long as it evokes the same emotion. (See Headquarters Ruling Letter (HRL) 068668, dated October 23, 1981.)

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 determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement." This item has the appearance and play value of any toy and can be used for amusement without being used as a bottle stopper. In this instance, the primary value of the item is its play value; the utilitarian aspect of the merchandise is - 4 -
temporary and incidental to the amusement factor. Thus, we have concluded that the primary purposes of the article, with its anthropomorphic and durable qualities and its ability to provide amusement or enjoyment after the candy has been consumed, is a toy.


Durable plastic figurines of significant value, which are, subsequent to importation, affixed to tubes containing candy and serve as a cap therefor, are considered to be for the enjoyment or amusement of their possessors, and are classifiable under subheading 9503.49.0020, HTSUSA, as a toy representing animals or nonhuman creatures. Such articles are subject to a general rate of duty of 6.8 percent ad valorem.

Since the classification indicated above is the same as the classification under which the entry was liquidated, you are instructed to deny the protest in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.


John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: