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NY G80887

August 30, 2000

CLA-2-94:RR:NC:TA:349 G80887


TARIFF NO.: 9404.90.2000

Mr. Christopher Foster
GEM Innovations
404 Victoria Avenue
Point Edward, Ontario, Canada
N7V 1J3

RE: The tariff classification of an infant massage kit from Canada

Dear Mr. Foster:

In your letter dated July 31, 2000 you requested a classification ruling.

You submitted a sample referred to as "A Parent's Touch Infant Massage Kit". The kit consists of a cushion and massage oil. The cushion or massage pad is made from polyurethane plastic foam that measures approximately 20 inches long, 10 inches wide and 2.5 inches thick. The top is rounded and the center of the pad is indented. The pad is encased in a removable flannel fabric cover. The cover features self-fabric flaps sewn along the sides and a hook and loop closure. The flaps, which measure 11.5 x 20 inches, are used to cover the infant and maintain body heat. The massage pad is designed to support and comfort an infant from birth to 3 months of age. The 8-ounce bottle of massage oil contains soybean oil, grape seed oil, calendula oil and vitamin E. The covered cushion and massage oil are packed together for retail sale with a brochure and a cardboard instruction chart.

The kit consists of a cushion and massage oil. General Rule of Interpretation 3 (GRI 3) provides for goods that are, prima facie, classifiable in two or more headings. GRI 3(b) provides that goods put up in sets for retail sale shall be classified as if they consisted of the material or component that gives them their essential character. According to the Explanatory Notes, the official interpretation of the HTS at the international level, "goods put up in sets for retail sale" refers to goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings; consist of products or articles put up together to meet a particular need or carry out a specific activity; and are put up in a manner suitable for sale directly to users without repackaging.

The infant massage kit meets the qualifications of "goods put up in sets for retail sale". The components of the kit consist of two different articles that are, prima facie, classifiable in different headings. They are put up together to carry out the specific activity of massaging an infant and they are packaged for sale directly to users without repackaging. It is our opinion that the cushion provides the essential character of the kit.

The applicable subheading for the infant massage kit will be 9404.90.2000, Harmonized Tariff Schedule of the United States (HTS), which provides for mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: other: pillows, cushions and similar furnishings: other. The general duty rate will be 6 percent ad valorem.

Perfumery, cosmetic and toiletry products are subject to the requirements of the Federal Food, Drug, and Cosmetic Act, which is administered by the U.S. Food and Drug Administration. You may contact them at 5600 Fishers Lane, Rockville, Maryland 20857, telephone number (301) 443-6553.

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 ruling, contact National Import Specialist John Hansen at 212-637-7078.


Robert B. Swierupski

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