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NY C86401


May 27, 1998

CLA-2-95:RR:NC:2:224 C86401

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0025; 3924.10.5000

Anna Barr

American Shipping Company, Inc.

140 Sylvan Ave.

Angled Cliffs NJ 07632

RE: The tariff classification of novelty dispensers from China.

Dear Ms. Barr:

In your letter dated April 9, 1998, you requested a tariff classification ruling on behalf of M&M Mars, Inc. We regret the delay of our response.

The merchandise consists of two candy dispensers, one in the shape of a gamble dispenser and the other representing the familiar M&M cartoon caricature. A sample of a third article, described as a M&M water globe candy dish, was not included in the package we received and cannot be ruled on. We will return these samples as you have requested.

The M&M character dispenser is a ten inch high plastic cartoon depiction of an M&M candy. The face and body portion is oval-
shaped, 9 inches high, 6-1/2 inches wide and 5 inches deep, and blue colored. There is a large letter "M" on the front of the torso (like the actual candy) and a whimsical face partly covered by sun glasses. Arms and gloved hands are connected to the sides and they hold a plastic saxophone. Legs with shoes are appended to the bottom of the article and attached to a one-inch thick platform. On the reverse of the article there is a disc with a flange which can be pushed upward to expose an opening to an interior cavity.

While this article is obviously described as a novelty candy dispenser, we believe the applicability of the toy provisions of the tariff must be studied. The Explanatory Notes to Chapter 95 of the Harmonized Tariff System, which represents the opinion of the classification experts at the international level, indicate that "this chapter covers toys of all kinds whether designed for the amusement of children or adults." In order for an article to be classified as a toy it must provide enjoyment or amusement. It, however, does not have to be something with which the user manipulates or otherwise physically plays with, as long as it evokes the similar toy play-like emotions in the mind of the user. See Customs Headquarters Ruling (HRL)068668.

We believe that the toy play value inherent in the blue M&M character candy dispenser, combined with its amusing features and anthropomorphic qualities, are intended to amuse the observer the same ways as toys do. While the article is functionally a dispenser we believe it will be used primarily as a toy. The primary value of the item is its appearance and play value; the utilitarian aspect of the merchandise is incidental to the amusement value. Thus, we have concluded that the primary purpose of the article, with its anthropomorphic and durable qualities and its ability to provide amusement or enjoyment after the candy is consumed, is as a toy.

Concerning this issue of imported articles having dual purposes, note also Customs Headquarters Ruling Letter (HRL) 951309 dated April 26, 1993, which concerned similar facts involving M&M novelty figures designed as lids for closures for containers containing candy - a utilitarian use, and as toys. In that case, Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977) was cited in which the court stated that "when 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 proposes incidental to the amusement." Customs noted in HRL 951309 that the merchandise had the appearance and play value of any toy, that it could be used for amusement without being used as closure or stopper, that the primary value of the item is its play value, and that the utilitarian aspect of the merchandise is temporary and incidental to the amusement factor. We concluded that the articles were classified as toys. We come to the same conclusion with the M&M character candy dispenser.

The applicable subheading for the M&M candy dispenser will be 9503.49.0025, Harmonized Tariff Schedule of the United States (HTS), which provides for "Toys representing animals or non-human creatures...and parts and accessories thereof: Other, toys." The duty rate will be free.

The M&M gamble machine candy dispenser is made of molded plastic and is composed of two parts with an overall height of approximately nine inches. The bottom portion, which is approximately 3-1/2 inches high and is fire-engine red in color, serves as a stand for the top of the article. The top portion of the article is a clear plastic reservoir-like container. It is designed to hold M&M candy or similar sized items which can be dispense through a bright yellow spring-activated chute in the front of its base. The top portion of the reservoir has a blue cap with the letter M on it. The cap can be removed to load the candy into the reservoir. The front of the clear plastic receiver is decorated with the letters M&M and pictures of two M&M characters. The item is nothing more or less than an inexpensive, but functional, candy dispenser and is essentially similar to inexpensive gamble dispensers. It is similar to the "M&M fun machine" ruled on in HQ 958719 of February 26, 1998.

The M&M gumball machine type candy dispenser is classifiable in subheading 3924.10.5000, HTS, the provision for tableware, kitchenware, other household articles...of plastics: other. Merchandise so classified is subject to a general rate of duty of 3.4 percent ad valorem.

This ruling is being issued under the provisions of Section 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 Specialists Tom McKenna at 212-466-5475 or Alice Masterson at 212-466-5892.

Sincerely,

Robert B. Swierupski

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