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HQ 954131


June 4, 1993

CLA-2 CO:R:C:F 954131 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

Mr. Larry K. Kaye
Transportation Manager
Cyrk International, Inc.
3 Pond Rd.
Gloucester, MA 01930

RE: Plastic Hand-Held Candy Dispenser; Modification of New York Ruling Letter (NYRL) 868430, dated November 25, 1991

Dear Mr. Kaye:

In NYRL 868430, date November 2, 1991, our New York Seaport Area Office advised you that a 3-1/2 inch high plastic hand-held candy dispenser, one of several articles noted therein, was classifiable in subheading 3924.10.5000, Harmonized Tariff Schedule of the United States (HTSUSA). We have recently reviewed that ruling in connection with a request for further review of protest 4101-92-100033, dated July 16, 1992, filed on behalf of your company. We have concluded that the prior classification was incorrect. Our decision follows:

FACTS:

The article under consideration is a 3-1/2 inches high plastic cartoon depiction of an M&M~ candy. The face and body portion of the article is oval-shaped, 3 inches high, 2 inches wide and 1-1/2 deep. There is a large letter "M" on the front thereof, like the actual candy, and a whimsical face. Arms and - 2 -
gloved hands are appended to the sides thereof, with one hand raised in a waving position and the other hand at the side. Legs with shoes are appended to the bottom of the article. The body of the article is orange or brown according to the samples submitted. The arms and legs are flesh colored. The gloves and shoes are white. On the reverse side of the article there is a disc with a flange which can be pushed upward to expose an opening to an interior cavity.

ISSUE:

What is the classification of the subject article?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied taken in order.

Although the article under consideration was originally classified in subheading 3924.10.5000, HTSUSA, in NYRL 868430, it was entered under subheading 8210.00.0000, HTSUSA, in the Customs entry covered by the aforementioned protest. That protest questioned the classification of the article in subheading 9503.49.0020, HTSUSA, in liquidation of the entry.

In considering this matter we noted that the Explanatory Notes to Chapter 95 of the Harmonized System, which represent the opinion of the classification experts at the international level, indicates that "[T]his chapter covers toys of all kinds whether designed for the amusement of children or adults." In order for an articles to be classified as a toy it must provide enjoyment or amusement. It, however, does not have to be something with which the possessor thereof physically plays, as long as it evokes the same emotion. (See Headquarters Ruling Letter (HRL) 068668, dated October 23, 1981.) In considering the applicability of the chapter 95 provisions to this article we - 3 -
noted the comical appearance and relatively sturdy construction of the article.

We believe that the play value inherent in this article, combined with its amusing features and anthropomorphic qualities are intended to amuse the owner thereof the same way as toys. While the article is functionally a dispenser we believe it is intended to function primarily as a toy. In Ideal Toy Corp. v. United States, 78 Cust, Ct. 28, C.D. 4688 (1977), the court stated that "[W]hen amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purposes incidental to the amusement." In this instance, the primary value of the item is its play value; the utilitarian aspect of the merchandise is incidental to the amusement factor. Thus, we have concluded that the primary propose of the article, with its anthropomorphic and durable qualities and its ability to provide amusement or enjoyment after the candy is consumed, is a toy.

Accordingly, the hand-held candy dispenser which was one of the articles subject of NYRL 868430, should be classified in subheading 9503.49.0020, the provision for toys.

HOLDING:

Durable plastic cartoon depictions of M&M~ candy are considered to be for the enjoyment or amusement of their possessors. Such articles, although they are functional hand- held candy dispensers, are classifiable in subheading 9503.49.0020, HTSUSA, as a toy representing animals or non-human creatures, and are subject to a general rate of duty of 6.8 percent ad valorem.

NYRL 868430 is accordingly modified.

We realize that your client may have undertaken contractual obligations in reliance on NYRL 868430. Under the provisions of section 177.9(d), Customs Regulations (19 CFR 177.9(d)), you may obtain a delay of up to 90 days in the implementation of this ruling if you can establish by documentary evidence, that you reasonably relied on NYRL 868430 to your detriment. If you wish - 4 -
to request such a delay, your request and appropriate documentation such as contracts, purchase order, shipping documents, etc. should be received in this office within 30 days from the issuance of this ruling. You should also include an explanation therewith of the reason for the subheading utilized in the entry which was covered by protest 4101-92-100033, as noted above.

Sincerely,

John Durant, Director
Commercial Rulings Division

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