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HQ 954690

September 5, 1995

CLA-2 R:C:F 954690 LPF


TARIFF NO.: 9503.70.0030

James F. O'Hara, Esq.
Bruce Shulman, Esq.
Scott E. Rosenow, Esq.
Stein Shostak Shostak & O'Hara
1620 L Street, NW - Suite 807
Washington, D.C. 20036-5605

RE: Classification of Petite Miss Fashion Model Sets and Petite Miss Fashion Travel Set in subheading 9503.70, toys put up in sets

Dear Messrs. O'Hara, Shulman, and Rosenow:

This is in response to your submissions of April 21, 1993 and March 4, 1994, on behalf of Imperial Toy Company, regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Petite Miss Fashion Model Sets and a Petite Miss Fashion Travel Set. You submitted samples with your request for a binding ruling. On February 18, 1994, we had the opportunity to meet with Mr. Shulman, Mr. Rosenow, and Mr. Kort of Imperial Toy Company.


The Petite Miss Fashion Model Light-Up Mirror Set (Item #8784) is a molded plastic cosmetic case having a lighted mirror manufactured into the case's interior. The base has a specially fitted, plastic tray which contains a comb, brush, lipstick, nail polish, emery board, cosmetic sponge, plastic compact container with eye shadow and lip gloss, and an applicator sponge. A photo display card, paper door sign, and a paper "model's schedule" also are included. A small slider drawer in the base is intended for the storage of trinkets. No other storage area exists. The carry handle is positioned on the same end as the hinges so that the entire article may be placed on a table or dresser and be used as a vanity or make-up mirror, making the components in the base tray easily accessible while the youngster uses the lighted mirror.

The Petite Miss Fashion Model Set (Item #8252) consists of a shoulder bag, imitation jewelry, lipstick, nail polish, a plastic compact with cosmetics, applicator brush and sponge, plastic comb, plastic brush, and plastic hand mirror.

The Petite Miss Fashion Travel Set (Item #8250) consists of a plastic drawstring bag, a diary, plastic comb, plastic brush, plastic hand mirror, and plastic compact with cosmetics, applicator brush and sponge. The two latter combinations include an "identification card" and "publicity fact sheet" which can be cut out from the box containing the merchandise.

Invoices, advertisements from The Toy Book, and letters from toy manufacturers' marketing and sales representatives were submitted indicating that the merchandise is marketed and sold to toy, drug, grocery, and other stores as children's toys. In addition, a Focus Group Report (Report) based on interviews with children and parents, including observations of children while using the subject products, was submitted for our review.

The Report indicates that the makeup included in the subject merchandise is "probably more attuned to the desires of" children who use children's makeup as opposed to real makeup. The Report further indicates that the use of such makeup generally takes place at home or at a friend's house and does not involve leaving the home with the makeup on, but, rather, involves "play." It also is explained that girls tend to prefer such sets with multiple items, as opposed to individual items. Accordingly, it is your position that Imperial Toy's use of colors, styling, and sizes for their makeup, toy jewelry, brushes, etc. are, based on market research, designed to appeal specifically to young girls who desire these products for their amusement.


Whether the merchandise is classifiable, as a whole, in subheading 9503.70 as other toys, put up in sets or outfits or is classifiable in other various headings applicable to its individual components.


The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Although the term "toy," in general, is not specifically defined in the tariff, the ENs to Chapter 95, HTSUS, indicate that, "this Chapter covers toys of all kinds whether designed for the amusement of children or adults." It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See Additional U.S. Rule of Interpretation 1(a), HTSUS.

However, the merchandise in this case does not consist of merely one article, but contains several distinct articles that potentially may be classified as toys. The ENs to 9503 provide that, "collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this Chapter when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets)."

In order to achieve clarity and consistency in the classification of toy sets and outfits, the Harmonized System Committee of the Customs Cooperation Council amended the EN at its 14th Session by providing the following subheading 9503.70 Explanatory Note:

Subject to substantiated classification in heading 95.03 and for the purpose of this subheading:
i) "Sets" are two or more different types of articles (principally for amusement), put up in the same packing for retail sale without repacking. Simple accessories or objects of minor importance intended to facilitate the use of the articles may also be included.
ii) "Outfits" are two or more different articles put up in the same packing for retail sale without repacking, specific to a particular type of recreation, work, person or profession.

Doc. 38.960, Annex G/12 and L/19 (HSC/14/Nov. 94).

While not legally binding, we find the new EN provides useful guidance. It indicates that the potential set, in its totality, is to be considered when determining whether it is used principally for amusement. The manner in which the merchandise is put up together, or packaged, for retail sale as well as the marketing, advertising, and channels of trade of the potential set as a whole is probative of its classification as a toy set of subheading 9503.70. Further, when considering if a particular article within the potential set is used principally for amusement, emphasis must be placed on whether that article amuses when viewed in its context within the entire retail packed set. Hence, a "disparate" article of major importance, demonstrating a minor, if any, connection to the set in its totality, would cause the merchandise to fail as a set of this subheading.

In applying the relevant EN, consistent with the language provided in the HTSUS, at both the heading level providing for "other toys" and at the subheading level providing for "other toys put up in sets or outfits," it is our position that the instant merchandise is classifiable within subheading 9503.70.

In this case, the manner in which the merchandise, in its totality, is retail packed indicates that it is principally used for amusement. The packing describes and presents the merchandise as "fashion model sets." In particular, while one combination includes a display card, model's door sign, and model's schedule, the other combinations include an identification card and publicity fact sheet, all intended to facilitate the child-consumer's play with the merchandise in the context of a fashion model or otherwise.

The advertising and marketing of the merchandise confirms its use as a toy. In this regard, the invoice, advertisements, and letters from the marketing and sales representatives submitted by counsel demonstrate that the merchandise, retail packed in this particular manner, is sold to vendors who sell the merchandise as toys. The packing, presentation and, hence, channels of trade of the merchandise serve as evidence that the merchandise will not be sold for utilitarian purposes, such as for grooming or adorning a child, or repacked in other forms or combinations. In our opinion, the merchandise would be retail packed, or presented, in a different manner (i.e., at least as other than "fashion model sets") if it were sold in alternative markets. Moreover, it is our understanding that other sales and marketing information and documentation would be consistent with these findings.

Although we recognize that some of the particular articles comprising the set possess some utilitarian features, we must emphasize that these articles, when viewed in their context within the entire retail packed set, are consistent with the assortments' marketing and presentation (i.e., retail packing) as toy sets put up together for amusement. In other words, the particular articles do not represent items of major importance without a connection or nexus to the set as a whole. We note, in examining the quality and presentation of the makeup included within the assortments, that consistent with the Report submitted by counsel, we concur that the makeup itself is primarily designed and used for play in the home or at a friend's house as opposed to being used for utilitarian purposes.


The Petite Miss Fashion Model and Travel Sets are classifiable in subheading 9503.70.0030, HTSUSA, as "Other toys;...: Other toys, put up in sets or outfits,...: Other: Other." The rate of duty is free.


Harvey B. Fox, Director
Office of Regulations and Rulings

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