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HQ 964004

September 20, 2001

CLA-2 RR:CR:GC 964004 JGB


TARIFF NO.: 1704.90.3550

Mr. Thomas J. O'Donnell
Rodriguez O'Donnell Fuerst Gonzalez & Williams 20 North Wacker Drive, Suite 1416
Chicago, Ilinois 60606

RE: BIG STUFF Pacifier with Lollipop Confection

Dear Mr. O'Donnell:

This is in reference to your letter of March 15, 2000, to the Customs National Commodity Specialist Division, New York, on behalf of Imaginings 3. Inc. in which you request a classification ruling under the Harmonized Tariff Schedule of the United States (HTSUS) of the BIG STUFF Pacifier with Lollipop. We regret the delay in responding.

The samples provided have the appearance of an over-sized infant's pacifier with a textile necklace so that it can be worn around the neck. Where the rubber nipple would be on a pacifier is here replaced with a nipple-shaped lollipop. A thin plastic dome-shaped shield covers the candy. The shield can be snapped back on so that the candy does not touch a surface.

You claim that the article is properly classified as a toy in heading 9503, HTSUS, because it "imitates an actual pacifier in shape, texture and colors" and "gives the enjoyment of a plaything" and is "meant to be used in the same fashion, as an actual pacifier is understood to be used." Further, you claim that by virtue of the string attached, consumers are able "to wear it around their necks or place the pacifier around the necks of dolls or stuffed animals."

Whether the article is a toy of heading 9503 or is a sugar confectionery article with novelty handle of heading 1704, HTSUS.


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.

The Harmonized Commodity Description and Coding System, Explanatory Notes (ENs), represent the official interpretation of the Harmonized System at the international level and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings under consideration in this decision are as follows:

9503: Other toys; reduced–size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.

1704: Sugar confectionery (including white chocolate), not containing cocoa.

Although the term "toy" is not defined in the tariff, the ENs to chapter 95, HTSUS, state, in pertinent part, that "this Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although not set forth as a definition of "toys", this term has been interpreted by Customs as equating "toys" with articles "designed for the amusement of children and adults."

In the tariff context, "amuse" is mainly used in contrast to some utilitarian or functional quality and the focus is not how the toys are used, but whether they are designed to amuse. It has been Customs position that the "amusement" requirement means that a toy should be designed and used principally for amusement and should not serve a utilitarian purpose. In this case, the consuming of the candy may be pleasant, but does not satisfy the amusement requirement. It provides some nutritional value, but it is not designed to be played with. It is, instead, a food, not a toy.

Customs has classified on rare occasions some articles associated with confectionery articles under heading 9503 as a toy. Headquarters Ruling Letter (HQ) 959601, dated March 13, 1997, classified two "Spin Pop" figures In heading 9503. The spin pop was a battery-operated device into which a lollypop was inserted. A button on the side of the handle activated the motor causing the lollypop to spin. In those cases in which the entire plastic toy portion and the lollypop moved at the pushing of the button, Customs determined that the article demonstrated manipulative play value and classified the article in the toy provision. In the models that merely spun the lollypop around, the three-dimensional cartoon character was considered to be merely decorative and unrelated to the motor; hence, not a toy.

In the instant case, there is no toy-like activity present in the consuming of the confection. A pacifier, alone, is not considered a toy for tariff purposes and we do not find rational the argument that an adult or child would want to imitate the behavior of an infant as a means of play. Further, we do not find the article as a credible accessory to a doll, in that the confection is indicated to be suitable for use by humans. The 19 inch doll supplied as an "example" of how the pacifier would be used does not provide convincing evidence of the use of the instant pacifier. It does not fit into the mouth of the doll when the candy is present and the stem or spindle is too small to stay in the doll's mouth after the candy is consumed. Even though adults do not normally require a pacifier and dolls represent a child at a age when a pacifier is appropriate, the condition of this product as imported and marketed is as a confection product and only incidentally as a pacifier. In other words, use as a "pretend" pacifier without the confection would be a fugitive use.

This office further notes that one common use of articles of this type is in the adolescent and young adult club scene during "raves" and similar events. It is noted that the illegal use of the drug "ecstasy" causes an individual to grind his teeth and that pacifiers similar to the instant product are used to diminish the effects of the grinding. Although it is not known whether this is the principal use of products of this type, such use has been documented. See, e.g., the transcript from the "NewsHour with Jim Lehrer" segment aired on the Public Broadcasting Service on July 30, 2001, titled "Ecstasy Explosion." The narrator states, "Many kids on ecstasy use pacifiers and suckers to keep their teeth from grinding, a common side effect." Whether the article is used for practical reasons in connection with drug usage or, as has been suggested, to "look cool" (ruling request, March 15, 2000, 6) such use is not as a toy.

In the absence of evidence qualifying the article for classification in heading 9503, HTSUS, it is classified according to its characteristics as a confection in heading 1704, specifically in subheading 1704.90.3550, HTSUS, as "Sugar confectionery (including white chocolate), not containing cocoa: Other: Confections or sweetmeats ready for consumption: Other: Other, Put up for retail sale: Other.:


The pacifier is classified in subheading 1704.90.3550, HTSUS.


John Durant, Director Commercial Rulings Division

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