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HQ 962454

August 28, 2002

CLA-2 RR:CR:GC 962454 JGB


TARIFF NO.: 3924.90.20; 9208.90.00; 9505.90.40

Area Director
U.S. Customs Service
One Penn Plaza
New York, NY 10119

RE: Internal Advice 30/98; Party Favors; United States v. Carborundum Company.

Dear Area Director:

This is in response to your memorandum of October 27, 1998, (CLA-2-NEW:TCBII:204) forwarding Internal Advice Request 30/98, dated October 27, 1998, initiated by counsel on behalf of Tara Toy Corporation, requesting advice as to whether articles marketed, packed and sold for distribution at children’s birthday parties are classifiable as “party favors” at subheading 9505.90.40, Harmonized Tariff Schedule of the United States (HTSUS).

Counsel for Tara Toy Corporation (“Tara”) has submitted a list of 95 articles representative of an assortment of products produced under license as “Barbie” and “Hot Wheels” “party favors.” These articles are the subject of current transactions, including 14 articles that comprise entry # K09-XXXXX11-3 (date not provided) at the Port of Newark. Samples of 17 articles and color catalog pictures of all 95 articles were provided to Headquarters.


Tara is a manufacturer, importer and distributor of toys and toy accessory products. Tara imports an entire line of small articles marked with a “Barbie” or “Hot Wheels” logo, under specific licensing agreements. The samples provided include: “Barbie” mini-wallets, pencil, pencil-sharpener, ruler sets, glitter nail polish, “scrungees,” rings, keyrings, bracelets, cookie cutters, memo/phonebook pads, “Hot Wheels” car-whistles, “suncatchers,” sunglasses, and watercolor paint and booklet sets, “eraser-pops,” ring toss games, and “friendship” rings. Each of the articles is “blister-packed” in plastic on a cardboard card in multiples of four, six, eight, or in one case, 12 items. Each package is marked with the brand or character name and logo, the term “party favors,” and a description of the article (e.g., “suncatchers,” keyrings, whistles, paint and book set, cookie cutters, bracelets, etc.). Tara also provided catalog pictures of numerous other “Barbie” and “Hot Wheels” theme articles. These include: packets of pencils, jigsaw puzzles, stickers, markers, pencils with “toppers,” “Hot Wheels” car pencil sharpeners, clips, kaleidoscopes, body decals, heat transfers, bookmarks, slide puzzles, magic pads, playing cards, pins, barrettes, earrings, figurine pendants, locket necklaces, brushes, combs, lipsticks, hair gels, hair clips, mirrors, bead necklaces, bangle bracelets, cologne, mini-lipsticks, ponytail holders, bead sets, heart notebooks, envelope-paper-box sets, suncatchers, mini-totes, stamper rings, bubble pendants, paddle ball sets, yo-yos, pinwheels, bicycle reflectors, photo-keyrings, viewer keyrings, tic-tac toe keyrings, glitter wands, playing cards, crayon-book sets, stencils, scissors, eraser rings, and jacks and ball sets. Counsel for Tara states that all of the articles are marketed, bought and sold, as “party favors.”

List of 95 articles attached.


Whether the subject articles are collectively classifiable as “party favors” provided for in subheading 9505.90.40, HTSUS, the provision for “festive, carnival or other entertainment articles . . . Other: Confetti, paper spirals or streamers, party favors and noisemakers; parts and accessories thereof” or separately according to the characteristics of the specific article.


Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

The individual headings that would be under consideration, if the articles were not presented as party favors, include: 3213 (students' colors in sets); 3303 (Perfumes and toilet waters); 3304 (Lip make-up preparations) (Manicure or pedicure preparations); 3305 (Preparations for use on the hair); 3924 (Tableware, kitchenware, other household articles and toilet articles, of plastics) (Picture Frames); 3926 (Other articles of plastics) (Office or school supplies) (Statuettes and other ornamental articles); 4016 (Erasers); 4817 (Envelope-paper-box sets)(Sheets of writing paper); 4819 (boxes, of paper); 4820 (Diaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles); 4908 (Transfers (decalcomanias)); 4911 (printed matter); 6117 (Headbands, ponytail holders and similar articles); 7117 (Imitation jewelry); 7326 (key rings of iron or steel); 8214 (pencil sharpeners (nonmechanical)); 8714 (Parts and accessories of vehicles--bicycle reflectors); 9004 (Sunglasses); 9017 (mathematical calculating instruments); 9208 (Whistles); 9502 (Dolls); 9503 (Other toys) (Puzzles) (Other toys, put up in sets or outfits); 9504 (games)(Playing Cards); 9603 (brushes); 9608 (felt tipped and other porous-tipped pens and markers); 9609 (Pencils and crayons, with leads encased in a rigid sheath); and 9615 (Combs, hair-slides and the like).

Tara argues that under the authority of GRI 1, all 95 of the subject articles are classifiable in the following provision as "party favors":

9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:


9505.90.40 Confetti, paper spirals or streamers, party favors and noisemakers; parts and accessories thereof

Alternatively, Tara claims that its merchandise should be determined “classifiable as either toys or dolls within headings 9503 or 9502, HTSUS.”

The systematic detail of the HTSUS is such that virtually all 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. Under the authority of GRI 1, the section and chapter notes must be considered alongside the terms of the headings. Therefore, if an article is excluded from classification by a section or chapter note it cannot be classifiable in the heading.

Heading 9505, HTSUS, provides for “[f]estive, carnival or other entertainment articles, including conjuring tricks and novelty jokes.” Heading 9505, HTSUS, is generally regarded as a “use” provision. It is Tara’s claim that all of these 95 articles may be used for “entertainment” at children’s theme birthday parties. Tara also claims that “entertainment articles” under heading 9505 should encompass a wide variety of merchandise. When the classification of an article is determined with reference to its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. In other words, an article’s principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria to discern an article’s principal use, it does not provide specific criteria for individual tariff provisions. The courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See Lenox Collections v. United States, 19 CIT 345, 347 (1995); Kraft, Inc, v. United States, 16 CIT 483 (1992), G. Heileman Brewing Co. v. United States, 14 CIT 614 (1990); and United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976).

EN 95.05, states that the heading covers “. . . other entertainment articles.” The exemplars listed in EN 95.05(A)(1) pertaining to articles for festive holidays include decorations such as festoons, garlands, Chinese lanterns, as well as various decorative articles made of paper, metal foil, glass fiber, colored balls, bells, lanterns, cake and other decorations. EN 95.05(A)(4) does refer to entertainment articles and lists “[t]hrow-balls of paper or cotton-wool, paper streamers (carnival tape), cardboard trumpets, 'blow-outs', confetti, carnival umbrellas, etc." All of these articles are fragile and light-weight in nature. No headquarters rulings have determined a finite set of criteria by which the nature of a “party favor” is determined. Although the other terms of subheading 9505.90.40, HTSUS, such as confetti, paper spirals or streamers, and noisemakers reflect merchandise used to decorate or celebrate at a party, the term “party favors”, coming at the eight digit level is not treated by the ENs. EN 95.05(A) introduces the category of "Festive, carnival, or other entertainment articles" by indicating that "in view of their intended use [they] are generally made of non-durable material."

The term “party favor” appears only in subheading 9505.90.40, HTSUS. No further explanation of the term is found in the Chapter Notes nor in the ENs. The portion of the ENs most closely explicative of party favor is (A)(4), set forth supra. Also, the exemplar "Christmas crackers" from (a)(2) is also akin to a party favor because within the "cracker" is usually an assortment of toys or trinkets that the guest is expected to take home with him, in much the same way that the favor would be taken home to serve as a souvenir or keepsake. In all cases, the favors are of little intrinsic value and serve principally as a reminder of the event. With respect to the general criteria set forth in Carborundum, we note that in terms of physical characteristics, many of the claimed party favors have functional aspects and are not only or merely decorative.

At issue is whether Tara’s collection of diverse articles may be identified as a class or kind of articles known as “party favors” for entertainment and use at “theme” birthday parties for small children. Tara argues that its goods are inexpensive, not very durable, sold in specialty party goods stores or specially designated party goods aisles in department and large toy stores. Tara argues that its wrapping of each of the articles in multiples of 4,6, 8 but not more than 12 in “blister” packaging and prominently labeled “party favors” transforms each of the listed articles into “party favors” and note the item also listed on the front of the packing card, (e.g., suncatcher, keyring, pencils, etc.). Moreover, Tara argues once it has placed a “Barbie” or “Hot Wheels” logo or character on any of the listed articles, each article is include within a “Barbie” or “Hot Wheels” party “theme,” and as such is rendered a “party favor” regardless of what other use the article might have.

We ruled in Headquarters Ruling Letter (HQ) 962488, dated December 15, 1999, that nothing is changed as to an article’s identity by putting it (in that instance) in a basket and covering it with a polypropylene wrapping sheet. That decision is distinguishable from the instant facts in that in the case of the Easter basket, the article is hidden and becomes a vehicle for presenting gifts of every sort and description. The instant case presents goods in the same kind or quality in multiples for entertainment at parties. The goods would not generally be sold in units of one, owing to their low value. By contrast, the Easter Basket in HQ 962488 was an assemblage of toys, dolls, candy and games, not more than one of each type, of a kind that would readily be sold singly at retail.

Tara has argued that markings on the articles to make them suitable for "theme parties" tends to establish them as party favors. We find this consideration irrelevant to the identity of a party favor because articles without a theme may meet the standards for party goods just well as those with a theme.

Although Tara argues that Customs should apply standards provided in Midwest of Cannon Falls, Inc., v. United States, the court’s analysis in Midwest was applied specifically to “festive articles” identified with a recognized holiday. No particular holidays are involved with the party favor issue, nor are they with the other exemplars within subheading 9505.90.40, HTSUS, namely, confetti, paper spirals or streamers, and noisemakers.

Tara argues that the essential nature of a party favor is not determined by what the good itself is, but rather by the fact that the particular article is blister packaged upon entry in multiples, labeled as a “party favor,” placed in “special” party goods channels of trade, inexpensive and not very durable, and is small enough to fit into a child’s “loot” or “goodie” bag.

For example, the “suncatchers” submitted in this case are intended for use as a small insignificant trinket provided in a “treat” or “goodie” bag to the small children attending a peer’s theme birthday party. The miniature size, trinket quality and appearance of the individual pieces, in addition to the fact that they are imported in pre-packaged “blister packs” in multiples of 4, 6, 8, and possibly 12 of the same articles, as well as prominently labeled as “party favors”, all point to the conclusion that the “suncatchers” are in fact an entertainment article classifiable as a “party favor” at subheading 9505.90.40, HTSUS.

The importance of the party favor lies not in its function, as in the case of a suncatcher, but in the parent or guardian’s expectation to be able to conveniently purchase several of the same trinket and conduct an even distribution to their child’s friends and party attendees, at a minimal cost, along with being able to fit the article in a small and flimsy “treat” or “goodie” bag handed to each child. As counsel for Tara emphasized, party favors are not intended for long-term use, are of little value, inexpensively made, packaged in multiples of four or more, but generally not more than 8 or 12, clearly and prominently labeled as party favors, and bought and sold as party favors, where party favors are sold in the trade. Customs agrees with counsel that party favors generally are not suitable for long-term use and are meant to be trinket souvenirs of the birthday party.

The Carborundum factors taken together lead us to conclude that all the Tara merchandise presented with this request are within the class of entertainment articles classifiable at heading 9505, HTSUS, with specific exceptions in compliance with the chapter notes' exclusions.

Under Carborundum, the court examined the physical characteristics of an article. In the case of the instant merchandise, the articles are all of minor value, generally made of non-durable material and thus corresponding to the ENs for entertainment articles.

As to the expectation of the ultimate purchaser, the articles are suitable for distribution by the party host to young children in that they correspond to the general age group's interests and in that sense they meet the expectation of the purchaser. A contrasting example would be a collection of "party favors" that turned out to be so dissimilar from one another and of such varying quality that giving them to the party attendees would incite feelings of jealousy that one child received a better article than another. Such an assortment would not qualify for the party favor designation because it fails to meet common sense standards or the expectation of the ultimate purchaser.

The channels of trade for party favors are in specialty party goods stores, gift shops, in designated “party goods” aisles of large toy, department, and drugstores, and via Internet shopping sites. Tara submitted two licensing agreements to support its claim that its licensing agreements govern the channels of trade for party favors.

As to environment of the sale, the express manner of sale is in multiples on a card, blister packed. This manner is in contrast to the typical sale of toys or dolls which tend to be individualized with one unit at a time sold. This also distinguishes the party favor from "bin" sales in toy stores, now increasingly uncommon due to security and other reasons, where toys or little articles of minor value are sold loose and by the piece. Little wind-up toys, plastic bugs and lizards and the like are sometimes sold in this manner, yet the customer's ability to buy several low value articles of interest to children would not qualify the articles as party favors. In the example provided, the environment of the sale is not uniquely for party favors and would not qualify the articles for this designation.

As to the use in the same manner as merchandise that defines the class, the articles under consideration are with great probability all used as party favors. It seems improbable that if a parent wished to buy a child a Barbee keyring or some little toy or doll, that the parent would want the product in multiples of four or eight. Party favors, as a class of merchandise, are bought in groups or multiples for the expected finite number of invitees to a party. Toys, dolls and other trinkets are not so purchased.

As to the economic practicality of using the import in a manner consistent with the class, all of the examples provided are of a type that would be distributed at birthday parties for children or similar events. An article would not be considered to meet this standard if the cost were disproportionate to the event and the manner of sale. For example, a group of eight wristwatches with gold cases would be so expensive that they would be outside the class of goods known as entertainment articles/party favors. In addition, they would not ordinarily be mistaken for party favors, because they would not be sold on a card, blister packed as rack goods. At the other end of the spectrum, when there are goods normally sold in multiples, they would not automatically be considered to be party favors. For example, wooden lead pencils of an ordinary variety for use in writing or drawing, usually 7½ inches in length, are often packed in multiples. The economics of the sale of pencils dictates that pencils of a certain value range will be packed and sold in this manner. That fact alone would not make them party favors, however. From an "economics" standpoint, it would not be unusual for one person to want a package of a half dozen pencils. While using them, they wear out, are consumed and are easily lost or misplaced. However, a child would normally only want or need one jack and ball set, one pair or scissors, one bubble pendant or suncatcher, to cite a few examples. When four bubble pendants are blister packed together, it seems clear that they are to be used by four little girls. Therefore, the economics can be demonstrated by the principle that the buyer will not normally buy more than he needs or can use.

As to the recognition in the trade of this use [as an entertainment article], Tara claims that these articles will be sold in party goods stores, in department stores or in supermarkets in specially designated party good aisles and specially marked packaging. The method of sale provides evidence of use, but like the other Carborundum factors, it is not conclusive. Customs agrees that the information provided points to these articles being known in the trade as party favors.

With regard to the exclusion provided by the chapter notes, only two exceptions within this merchandise are the "Barbie Photo Frames" style 51040-1, and the Hot Wheels whistles, style 56180-9. With regard to the Photo Frames, Customs has long treated picture frames of base metal or plastics as parts of general use. See Section XV, Note 2(c), HTSUS. New York Ruling Letters G81986 and G80979, dated October 2, 2000 and September 14, 2000, respectively. Parts of general use are excluded by chapter note 1(k) to Chapter 95. The Hot Wheels whistles, are excluded by chapter note 1(r) that excludes "Decoy calls or whistles (heading 9208)." The Hot Wheels sunglasses, style 56190-8, are not described by the phrase "Spectacles, goggles or the like, for sports or outdoor games (heading 9004)" in chapter note 1(q) and are consequently not excluded.


With the exception of the picture frames and whistles excluded by the chapter note, the claimed articles, blister-packed in multiples of 4, 6, or 8 upon entry, prominently labeled as party favors for children’s birthday parties, and small enough in size to fit into a “loot” or “goodie” bag, are classifiable at subheading 9505.90.40, HTSUS, as party favors. The Barbie Photo Frame, style 51040-1, is classified in subheading 3924.90.20, HTSUS, the provision for "Tableware, kitchenware, other household articles and toilet articles, of plastics: Other: Picture frames." The Hot Wheels whistles are classified in subheading 9208.90.00, HTSUS, in the provision for "Music boxes, . . . , whistles, call horns and other mouth-blown sound signaling instruments: Other."

This decision should be mailed by your office to the party requesting internal advice no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Myles B. Harmon, Acting Director

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