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HQ 559264




October 12, 1995

CLA-2 R:C:S 559264 BLS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9811.00.60

Mr. Malcolm McLaughlin
Chief Financial Officer
Pilkington Barnes Hind, USA
810 Kifer Road
Sunnyvale, CA 94086-5200

RE: Applicability of duty exemption under subheading 9811.00.60, HTSUS, to contact lenses; samples

Dear Mr. McLaughlin:

This is in reference to your letter dated June 9, 1995, requesting a ruling that certain contact lenses imported into the U.S. by Pilkington Barnes Hind USA (PBH) are eligible for free entry as commercial samples under subheading 9811.00.60, Harmonized Tariff Schedule of the United States (HTSUS). A sample of the imported product has been submitted.

FACTS:

PBH manufactures its precision line of soft lenses in the United Kingdom (U.K.). Currently, all of these lenses imported into the U.S. from the U.K. are entered under subheading 9001.30.00, HTSUS, including those intended for use as commercial samples for purposes of soliciting orders. All of the Precision UV lenses are imported in individual blister packs, one lens per blister pack, both those intended for retail sale and those intended for use as commercial samples for purposes of soliciting samples. As reflected by the submitted samples, the lenses used as samples are distinguished from the lenses intended for sale as follows:

1) The individual blister packages housing the commercial samples are marked "TRIAL LENS - NOT FOR SALE," in large conspicuous type on an orange field located directly above the product name on the bar coded label affixed to the back of each blister package.

2) Each box in which the lenses are imported provides in large type on the box top "3 TRIAL LENSES, NOT FOR SALE," and "3 TRIAL LENSES" on the side of the carton, in close proximity to an additional bar-coded product label, also marked with the same information as the label on the individual blister packages.

3) The sample lenses are packaged three to a box, while the product sold for retail sale are packaged in boxes of six individual blister packs.

4) The trial packs have product code (UPC) numbers, UPC codes, and stock keeping unit (SKU) numbers distinct from the lenses sold for retail.

You state that the trial lenses are provided to physicians free of charge, and are used for activities commonly associated with creating a market and order solicitation for contact lens prescription and sales. In this regard, you point out that the blister packs are opened and the lenses are shown to and handled by prospective customers; various lenses of different parameters are test fitted to the patient's eyes to ascertain the proper base curve, diameter, and power necessary to correct the customer's eyesight; and the lenses are used as the basis for discussion of the UV properties with the patient by the physician. You state that these trial lenses are not sold or given away, and are disposed of once opened during the office visit by the physician. The record also reflects that the invoice unit value of the trial lenses are in excess of $1.00.

ISSUE:

Whether the lenses are entitled to duty-free treatment under subheading 9811.00.60, HTSUS.

LAW AND ANALYSIS:

Subheading 9811.00.60, HTSUS provides for the free entry of:

[a]ny sample ... valued not over $1 each, or marked, torn, perforated, or otherwise treated so that it is unsuitable for sale or for use otherwise than as a sample, to be used in the United States only for soliciting orders for products of foreign countries.

The specific issue to be addressed is whether the importer uses the samples for the purpose of soliciting purchase orders for foreign merchandise and the creation of demand for future orders.

In United States v. London Records, Inc., 402 F.2d 1009, 56 CCPA 14 (1968), sample records with a label stating "Made in England - Not For Sale" were distributed throughout the United States to record reviewers and radio stations free of charge to generate demand for the music. The court held that these articles were entitled to duty-free entry as sample merchandise. In reaching this conclusion, the court cited the decision in Italian Drug Importing Co. v. United States, 46 Cust. Ct. 243, C.D. 2263 (1961), in which it was held that samples of vitamins distributed to doctors who gave them to their patients qualified as samples. The merchandise in this court case were marked "Sample, not for sale." "The court observed that notwithstanding the fact that a temporary benefit was derived by the patients to whom the vitamins were
distributed free of charge, the importations were ... based upon the object of securing future orders ... ." London Records, 402 F.2d at 1011, 56 CCPA at 17. See also Headquarters Ruling Letter (HRL) 556174 dated December 4, 1991, where Customs held that tablets imported in vials or blister packages marked "Sample - not for sale" for the purpose of distributing them to physicians in order to create a market in the U.S., qualified as samples under subheading 9811.00.60, HTSUS.

These authorities are controlling in the subject case, as the blister packs containing each lens is marked as "TRIAL LENS - NOT FOR SALE." We also note that the individual lenses themselves are incapable of being marked and accordingly, their outer container, the blister pack, must be marked. Accordingly, we are of the opinion that the marking of the blister packs and boxes is sufficient to ensure that the contact lenses will be used only for the purpose of distribution to physicians to encourage orders for the foreign products.

HOLDING:

Contact lenses distributed to physicians free of charge in blister packs marked "TRIAL LENS- NOT FOR SALE" to be used to create a market and to solicit orders for foreign products are entitled to free entry under subheading 9811.00.60, HTSUS.

A copy of this ruling should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director

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