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HQ 952186

April 29, 1993

CLA-2 CO:R:C:F 952186 ALS


TARIFF NO.: 9503.49.0020

District Director of Customs
55 Erieview Plaza
Cleveland, OH 44114

RE: Request for Further Review of Protest 4101-92-100033, dated July 16, 1992, Concerning a Plastic Hand-Held Candy Dispenser

Dear Mr. Nelson:

This ruling is on a protest that was filed against your decision of February 21, 1992, in the liquidation of an entry covering the referenced item.


The article under consideration is a 3-1/2 inches high plastic cartoon depiction of an M&M~ candy. The face and body portion of the article is oval-shaped, 3 inches high, 2 inches wide and 1- 1/2 inches deep. There is a large letter "M" on the front thereof, like the actual candy, and a whimsical face. Arms and gloved hands are appended to the sides thereof, with one hand raised in a waving position and the other hand at the side. Legs with shoes are appended to the bottom of the article. The body of the article is orange or brown according to the samples submitted. The arms and legs are flesh colored. The gloves and shoes are white. On the reverse side of the article there is a disc with a flange which can be pushed upward to expose an opening to an interior cavity. This article apparently is the same as one of the articles which was the subject of New York Ruling Letter (NYRL) 868430, dated November 25, 1991.


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 article was entered under subheading 8210.00.0000, HTSUSA, which provides for hand-operated mechanical appliances, weighing 10kg. or less, used in the preparation, conditioning or serving of food or drink, and base metal parts thereof. The article was classified in subheading 9503.49.0020, HTSUSA, which provides for other toys representing animals or non-human creatures because the article was found to be suitable as a source of play fun and its use as a toy plaything.

The Explanatory Notes to Chapter 95 of the Harmonized Tariff System, which represents the opinion of the classification experts at the international level, indicates that "[T]his 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 considering the applicability of the chapter 95 provisions to this article we noted the comical appearance and relatively sturdy molded construction of the article.

We believe that the play value inherent in this article, combined with its amusing features and anthropomorphic qualities are intended to amuse the owner thereof the same way as toys. While the article is functionally a dispenser we believe it is intended to function primarily as a toy. 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 - 3 -
incidental to the amusement." In this instance, the primary value of the item is its play value; the utilitarian aspect of the merchandise is 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 is consumed, is a toy.

We have concluded that the article is not used in the preparation, conditioning or serving of food or drink and that it, therefore, should not be classified in subheading 8210.00.0000, HTSUSA, as entered.

In considering the proper classification of this article we noted, as stated above, that NYRL 868430 of November 25, 1991, held that this article should be classified in subheading 3924.10.5000, HTSUSA, as a household article of plastic. Since that ruling, issued on behalf of the importer, is currently extant, it represents the official position of the Customs Service with respect to the article described therein. It is, as noted in section 177.9(a), Customs Regulations (19 CFR 177.9(a)), binding on Customs Service until modified or revoked. Our records do not indicate that NYRL 868430 has been modified or revoked as of this date. In regard thereto, we note that the protesting party now claims that the article should be classified in the subheading referenced in the NYRL.

Accordingly, while we believe that the article is similar to the article in HRL 951309, dated April 26, 1993, and is properly classifiable in subheading 9503.49.0020, the Customs Service is bound by the prior ruling which we intend to modify so that it agrees with the above conclusion.


Durable plastic cartoon depictions of M&M~ candy are considered to be for the enjoyment or amusement of their possessors. Such articles are classifiable in subheading 9503.49.0020, HTSUSA, as a toy representing animals or non-human creatures, and are subject to a general rate of duty of 6.8 percent ad valorem.

However, since the classification claimed in the protest is the same as the classification in NYRL 868430 issued on behalf of the protestant and has never been modified or revoked, you are instructed to allow the protest in full. The protestant should be advised that this decision covers only the entry referenced in the protest and that we will be modifying NYRL 868430 so that it conforms to the conclusion noted above that the article should be classified as a toy.

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

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