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HQ 559457

February 6, 1996

CLA-2 RR:TC:SM 559457 DEC


TARIFF NO.: 9811.00.60

Area Director of Customs
New York Seaport Area
Six World Trade Center - Room 432
New York, New York 10048

RE: Internal Advice 41/95; Applicability of duty-free treatment under subheading
9811.00.60, HTSUS, for unmarked lipstick testers

Dear Sir:

This is in response to your memorandum of September 25, 1995, forwarding a request for internal advice from Siegel, Mandell & Davidson, P.C. on behalf of Christian Dior perfumes, Incorporated (Christian Dior), concerning the eligibility of lipstick testers for duty-free treatment pursuant to subheading 9811.00.60, Harmonized Tariff Schedule of the United States (HTSUS).


Christian Dior imported seventeen hundred items that were invoiced as lipstick testers. The lipstick testers in question have a permanently affixed color ball attached to the top of the lipstick tester lid that resembles a knob. The color of the top mimics the shade of lipstick contained in the tester. The color code is printed on the ledge of the lipstick case. The lipstick testers are arranged in a specially constructed display panel that prominently features each of the lipstick testers' color ball. The imported lipstick tester contains the lipstick, some numerical references, and the French and English name of the shade. The lipstick tester case bears the name "Christian Dior," but does not indicate the fact that it is a tester or sample of any kind. Unlike the lipstick testers, the actual retail lipstick that Christian Dior markets is packaged in a hexagonal lipstick case. Furthermore, counsel for the importer states that the retail cases are printed with Christian Dior's name and the label contains all legally required information. The retail cartons are also packaged with a dark blue corrugated liner.


Whether the lipstick testers as described above are sufficiently altered to render them unsuitable for sale or for use otherwise than as a sample used to solicit orders for foreign-produced products pursuant to subheading 9811.00.60, HTSUS.


Subheading 9811.00.60, HTSUS, provides for the duty-free treatment of any sample either valued at less than $1 each or marked, torn, perforated, or otherwise treated so that it is unsuitable for use otherwise than as a sample to be used in the U.S. only for soliciting orders for products of foreign countries. The controlling factor is whether the importer uses the samples for the purpose of soliciting purchase orders for foreign merchandise and the creation of demand for future orders. If the items at issue are valued at more than $1 each, they may not be entered free of duty under this tariff provision unless they are marked as samples or treated in some way to render them unsuitable for commercial sale or any use other than as samples for obtaining orders for similar articles.

Counsel for the importer contends that the lipstick testers which incorporate a permanently attached and prominently visible color ball have been appropriately treated so as to be unsuitable for sale for use other than a tester. In addition, counsel argues that a retail customer would not expect to receive a lipstick with a color ball attached. The lipstick testers are also uniquely designed from the normal retail lipstick container which enables it to fit into the specially constructed Christian Dior cosmetic display housing.

Counsel correctly states that there is no statutory requirement that articles entered under subheading 9811.00.60, HTSUS, must literally be marked with the words "sample - not for sale". The tariff provision clearly states that either the article is valued at less than $1 each or marked, torn, perforated, or otherwise treated so that it is unsuitable for use otherwise than as a sample to be used in the U.S. only for soliciting orders for products of foreign countries.

In Headquarters Ruling Letter (HRL) 554868, dated April 10, 1989, Customs determined that two rectangular pieces of carpeting material that measured 13 by 18 inches and 26 by 18 inches with hemmed edges and a hole in the smaller piece so that a chain could be inserted to fasten a number of pieces together did not qualify for duty-free treatment as a sample. Customs found that the larger piece of carpeting was suitable as a floor covering such as a runner or door mat. We stated that in order for the pieces of carpet to be eligible for free entry under subheading 9811.00.60, HTSUS, they must be treated to render them commercially unsuitable for any use other than as samples for taking orders for foreign-made carpeting and the treatment should conform to the guidelines set forth in the telex dated February 11, 1987. Those guidelines require that either a hole or section must be cut from the main body of the article or an indelible ink stamping shall be made on the outer surface of the article in a location which is visible when it is in use and the stamping should be in a contrasting color. The cutting or stamping prescribed should be near the center of the sample so it cannot be removed by cutting along an edge. The samples submitted did not conform to the guidelines with respect to either cutting or stamping.

The articles in this case, however, are not textiles. Consequently, the lipstick testers are not subject to the specific rules concerning textile samples. Applying the terms of subheading 9811.00.60, HTSUS, to the facts presented in this case, we agree with counsel that retail lipstick products are not ordinarily packaged and sold in lipstick cases with a large color ball as part of the lid and then inserted into a specially designed display case. We therefore find that the merchandise that is the subject of this ruling is "otherwise treated" so as to render it unsuitable for use other than as a sample to solicit orders. Also, since the display of the numerous colors presented in the lipstick testers can assist potential customers in selecting the desired color, we are satisfied that the lipstick testers will be used as samples for the solicitation of purchase orders for the lipstick contents, consistent with the purposes of subheading 9811.00.60, HTSUS.


Based upon the information presented, we find that the lipstick testers as described above are entitled to duty-free treatment as samples under subheading 9811.00.60, HTSUS.

This decision should be mailed by your office to the internal advice requester no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant

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