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HQ 963725




May 17, 2001

CLA-2 RR:CR:GC 963725ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.90.55

Mr. Arlen T. Epstein
Tompkins & Davidson, P.C.
One Astor Plaza
1515 Broadway
New York, NY 10036

RE: Plastic, liquid filled eye masks.

Dear Mr. Epstein:

This is in reference to your letter dated May 4, 1999, on behalf of Avon Products, Inc. to the Director, National Commodity Specialist Division, New York, in which you requested the classification of a product identified as "Anew Eye Mask" – PP 178221, under the Harmonized Tariff Schedule of the United States (HTSUS).

Your letter was forwarded to this office for response. We regret the delay.

FACTS:

According to your letter, the "Anew Eye Mask" – PP 178221 consists of a vinyl plastic eye mask filled with 59.8 percent propylene glycol, 40 percent distilled water and 0.02 percent color pigment. The purpose of the propylene glycol is to prevent the liquid from freezing. The article is intended to be chilled. There is an elastic cord attached to the ends of the mask, which keeps the mask in place over the user's eyes. You state that you understand that no therapeutic or health claims will be made for the article by your client.

ISSUE:

What is the classification of plastic, liquid filled eye mask?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). 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. 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 GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings under consideration are as follows:

2201 Waters, including natural or artificial mineral waters and aerated waters, not containing added sugar or other sweetening matter nor flavored; ice and snow:

2851.00.00 Other inorganic compounds (including distilled or conductivity water and water of similar purity); liquid air (whether or not rare gases have been removed); compressed air; amalgams, other than amalgams of precious metals

2851.00.0090 Other

2905 Acyclic alcohols and their halogenated, sulfonated, nitrated or nitrosated derivatives Diols:

2905.32.0000 Propylene glycol (Propane-1, 2-diol)

3005 Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices), impregnated or coated with pharmaceutical substances or put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes:

3005.90 Other:

3005.90.50 Other

3005.90.5090 Other

3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included: 3824.90 Other:

Other:

Other

Other

Other

3824.90.9050 Other

3924 Tableware, kitchenware, other household articles and toilet articles, of plastics:

3924.90 Other:

3924.90.55 Other.

As stated above, the GRIs are to be applied in order. GRI 1 provides that articles are to be classified by the terms of the headings and any relevant Section and Chapter Notes. For an article to be classified is a particular heading, that heading must describe the article.

Although you claim no therapeutic or health benefits will be made for the articles, it is clear that they are to be worn over the eyes to obtain some benefit. The vinyl plastic eye masks provide a cooling treatment to the user. However, they do not rise to the level of dressings, adhesive plasters or poultices contemplated by heading 3005, HTSUS. The ENs to heading 30.05 indicate that in order to be included within the coverage of that heading, the articles must be some type of bandage, wadding or gauze for dressings which has been specially treated and which is clearly intended for the medical, surgical, dental or veterinary purpose of being applied to a wound or bodily injury. The vinyl plastic eye masks are not this type of medical products. Thus, they cannot be classified in subheading 3005, HTSUS.

Because the eye masks are composite goods, consisting of a plastic exterior and a liquid filler, for tariff purposes, they constitute goods consisting of two or more materials and substances. Thus, they may not be classified solely on the basis of GRI 1. The eye masks are described in GRI 2(b) which covers mixtures and combinations of materials and substances and goods consisting of two or more materials and substances. According to GRI 2(b), “The classification of goods consisting or more than one material or substance shall be according to the principles of Rule 3.” Because the ingredients of the eye masks present us with a composite good for classification purposes, we turn to GRI 3(b) which governs the classification of mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale. Under GRI 3(b), classification of an article is to be determined on the basis of the component which gives the article its essential character. The EN’s provide that, if this rule applies, goods shall be classified as if they consisted of the material or component which gives them their essential character. EN Rule 3(b)(VIII) lists as factors to help determine the essential character of such goods the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods.

Recently, there have been several Court decisions on "essential character" for purposes of GRI 3(b). These cases have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed CAFC No. 98-1227 (March 16, 1999). Based on the foregoing, we conclude that in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors listed in EN Rule 3(b)(VIII) should also be considered, as applicable.

Before we can determine the essential character of the eye masks, we must first determine the classification of the constituent materials or components.

Heading 3924, HTSUS, provides for, among other things, household articles and toilet articles, of plastics. The ENs to subheading 39.24 provide that the heading covers such household articles of plastics as hot water bottles. The liquid contents of the masks are inert mixtures which are either heated or cooled prior to use by the consumer. The flexible plastic shell conforms to the wearer's face to permit maximum contact with the mask. Hot water bottles have traditionally been used by people to provide relief to sore areas. The vinyl plastic eye mask is an updated version of the traditional hot water bottle, taking advantage of modern manufacturing techniques to achieve traditional results. For the above reasons, by application of GRI 1, the vinyl plastic portion of the eye mask is classified in heading 3924, HTSUS, which provides for other household articles and toilet articles, of plastics.

The liquid mixture (propylene glycol, distilled water and dye) which is inside the mask is itself a composite good. Heading 2851, HTSUS, provides for distilled water. However, the ENs for 28.51 indicate that "the heading The heading covers only distilled water, re-distilled or electro-osmotic water, conductivity water and water of similar purity, including water treated with ion exchange media. Natural water, even if filtered, sterilised, purified or softened, is excluded (heading 22.01). When put up as a medicament in measured doses or in packings for retail sale, water falls in heading 30.04. Since the mixture contains propylene glycol and dye, it is clearly excluded from classification in heading 2851, HTSUS.

Similarly, the chapter notes to chapter 29 state, in relevant part, that "the headings of this chapter apply only to: (a) separate chemically defined organic compounds, whether or not containing impurities." In the current situation, the propylene glycol is in a mixture, not in a separate chemically defined condition. Thus, the mixture cannot be classified in chapter 29.

Heading 2201, HTSUS, provides for potable waters consumed as a beverage. The water inside the mask, mixed with propylene glycol, is not potable in its imported condition. Water with propylene glycol does not fall within any of the exemplars given for types of products included in heading 2201. Further, heading 2201 does not provide for "articles of water." Thus, the contents of the mask cannot be classified in heading 2201, HTSUS. Similarly, for the reasons stated above, the liquid contents of the mask are not classifiable in heading 1520, HTSUS, as articles of glycerol. The liquid contents of the mask is a mixture of water and propylene glycol and dye which is classified in heading 3824, HTSUS, as residual products of the chemical or allied industries, not elsewhere specified or included. By its terms, this heading is broad enough to cover mixtures that are put up in a way that renders them fit for a particular application.

The composite goods being classified are being imported to be used as eye masks. One of the key elements of an eye mask is its ability to conform to the contours of the wearer's face. In this case, the "indispensable function" (Better Home Plastics, supra) of the article is that it can be comfortably worn on one's face. The plastic shell which contains the water/dye mixture provides the article with the flexibility necessary to enable the wearer to wrap the article around his or her face while simultaneously enjoying the benefits of the hot or cool contents. Without the plastic, the article could not function as designed. This criterion indicates that the essential character of the good is provided by the plastic component. We therefore conclude that the essential character of the product is provided by the plastic component so that, under GRI 3(b), the eye masks are classifiable in heading 3924, HTSUS.

For the above reasons, plastic eye masks, filled with distilled water, propylene glycol and dye, are classified in subheading 3924.90.55, HTSUS, which provides for other household articles and toilet articles, of plastics, other, other. This ruling is consistent with HQs 964850, 964851 and 964852, dated April 18, 2001.

HOLDING:

The "Anew Eye Mask" – PP 178221, vinyl plastic eye mask , filled with distilled water, propylene glycol and dye, is classified in subheading 3924.90.55, HTSUS, which provides for: Tableware, kitchenware, other household articles and toilet articles, of plastics, other, other.

Sincerely,

John Durant, Director

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