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HQ 967486




June 30, 2005

CLA-2 RR:CR:TE 967486 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.0000

Mr. Robert Shluker
MZBerger & Company
385 5th Avenue
Suite 700
New York, NY 10016

RE: Request for reconsideration of NY K85523: “Teenage Mutant Ninja Turtle”® character bottle toppers

Dear Mr. Shluker:

This is in response to a letter, dated October 20, 2004, submitted on behalf of MZBerger & Company, requesting reconsideration of Customs New York Ruling (NY) K85523, dated May 21, 2004, which classified character bottle toppers under the Harmonized Tariff Schedule of the United States Annotated. Four samples have been submitted to this office for examination.

FACTS:

The subject articles are bottle toppers depicting the “Teenage Mutant Ninja Turtles”® characters. In your request for reconsideration you identify the following characters and style numbers: “Leonardo” (B0259); “Raphael” (B0260); “Michelangelo” (B0261); and “Donatello” (B0262). The bottle toppers are formed of molded plastic to depict only the upper torso, arms, head and shell of each character. They are not caps and do not secure the contents of the bottles. Rather, the bottle toppers are designed to provide decoration to the shampoo or bubble bath bottle to make it more attractive to the consumer. Although the bottle toppers are securely fitted over the screw-on cap, they can also be removed by the consumer. The lower body of each bottle topper character is printed on the front label. The bottle toppers are separately imported from China and added to the bottle in the United States as part of the packaging process. In NY K85523, only one of the four “Teenage Mutant Ninja Turtles”® style numbers was referenced: The bottle topper identified as “Leonardo” (B0259) was classified in subheading 3926.40.0000, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles”. You disagree with this classification and claim that the “Teenage Mutant Ninja Turtles”® bottle toppers are used by children both as play toys and finger puppets in or out of a bath. Thus, we assume that you are seeking classification of the toppers in subheading 9503.90.0080, HTSUSA, which provides for “Other toys; reduced-size (‘scale’) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other, Other”.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUSA provisions under consideration are as follows:

3926 Other articles of plastics and articles of other materials of
headings 3901 to 3914:

3926.40.0000 Statuettes and other ornamental articles

Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

Other

9503.90.0080 Other

The term “toy” is not defined in the HTSUSA. However, the general EN for Chapter 95 states that this “Chapter covers toys of all kinds whether designed for the amusement of children or adults.” Although nothing in heading 9503 or the relevant Chapter notes explicitly states that an item's classification as a "toy" is dependent upon its use, the Court of International Trade (CIT) has found inherent in various dictionary definitions of “toy” the notion that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality. In the case of Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000), which classified full-figured, three-dimensional, plastic objects in the form of well-recognized children’s characters as “. . . [t]oys representing animals or non-human creatures . . . Other” under subheading 9503.49.00, HTSUSA, the court found that an object must be designed and used for amusement, diversion or play, rather than practicality in order to be classified as a “toy” of heading 9503, HTSUSA. In Minnetonka, the CIT further noted that because heading 9503, HTSUSA, is, in relevant part, a principal use provision, classification under this provision is controlled by the principal use "of goods of that class or kind to which the imported goods belong" in the United States at or immediately prior to the date of importation. Additional U.S. Rule of Interpretation 1(a), HTSUSA. See also Primal Lite, Inc. v. United States, 182 F.3d 1362, 1365 (Fed. Cir. 1999).

In the instant case, the bottle toppers offer eye-catching packaging, which has been designed to appeal to a target group of consumers, i.e., children, parents, and collectors. However, the play value and/or inherent amusement of the bottle topper is limited due to the fact that once the topper is removed from the container, only the upper torso remains intact. The lower body of the “Teenage Mutant Ninja Turtle”® is left behind on the printed label of the bottle because the legs of the character are depicted by the printed label on each container. This suggests that the bottle toppers are primarily designed to enhance and/or draw attention to the label and are intended as a marketing device. Indeed, a young child may find it cumbersome to play with the entire bottle of shampoo/bubble bath while in or out of the tub. In addition, the printed label bearing the lower body of the “Teenage Mutant Ninja Turtle”® character would quickly fade or peel-off in the bathtub. Furthermore, the design of the topper is not necessarily conducive to use as a finger puppet and it is unclear whether the consumer would find it amusing to use the article in this manner when it only represents the upper torso of the “Teenage Mutant Ninja Turtle”® character.

In order to determine whether an article is a “toy” within the meaning of Chapter 95, HTSUSA, it is necessary to compare whether the primary purpose is to amuse or to provide a utilitarian/functional quality. See HQ 966046, dated May 16, 2003 and HQ 963638, dated November 2, 2001. 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 purpose is incidental to the amusement." Therefore, if the level of play value and amusement of the article is not sufficient to constitute its principal use, the article is not a toy. See United States v. Topps Chewing Gum, Inc., 440 F.2d 1384 (1973); HQ 229863, dated February 10, 2004.

There is established precedent that is directly on point wherein CBP has determined that a decorative container lid, molded in the shape of a cartoon character, is not classifiable as a “toy” in Chapter 95, HTSUSA. In HQ 966633, dated March 18, 2005, CBP addressed the classification of certain plastic articles, identified as “Roto Toppers”, which are molded in various cartoon character shapes including “Sponge Bob”®, “Dora the Explorer”®, and others. Each “Roto Topper” consisted of two fitted pieces, a plastic threaded lid and a blow-molded three dimensional plastic object in the form of a cartoon character attached to the lid. The “Roto Toppers” were designed to be detached from the container and saved as an interactive or collectible toy. CBP determined that the “Roto Toppers” were a composite good and under a GRI 3(b) analysis, found the essential character to be functional, i.e., as a closure on the top of a beverage container. Similarly, in HQ 962447, dated August 12, 1999, we classified the “Disneyland”® Toppers as decorative lids and not as toys. We found that although the toppers were interesting to look at they had no manipulative play value. We further concluded that since they were primarily decorative and were not principally designed to be played with, the toppers were not classified as toys. In HQ 961840, dated May 7, 1999, we determined that the Jurassic Park Dinosaur Bottle Topper was not a toy. In HQ 966046, dated May 16, 2003, we determined that the “Bob the Builder” bubble bath topper and collection of bath products were not toys. See also HQ 959588, dated February 5, 1997; HQ 959784, dated March 25, 1997.

In Minnetonka Brands, Inc. v. United States, supra, the court stated that in determining whether the imports are of the class or kind of merchandise whose principal use is amusement, diversion or play, or for the conveyance or packaging of goods, certain factors must be examined: general physical characteristics, the 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 United States v. Carborundum Company, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979. We note that the importer has not provided information relative to the Carborundum factors outlined above. In this regard, the importer has failed to meet its burden by demonstrating to our satisfaction that the principal use of the subject bottle toppers is that of a toy. Furthermore, the subject topper in the instant case only comprises the upper half of the “Teenage Mutant Ninja Turtles”® character (head, torso, arms) and is distinguishable from the full-figured (head, arms, torso, legs), three-dimensional, plastic objects, which were classified as “toys” of subheading 9503.49.00, HTSUSA, in the Minnetonka case.

In view of the foregoing, we find that the subject bottle toppers are described in heading 3926, HTSUSA, which provides for “Other articles of plastics . . .: Statuettes and other ornamental articles”. Thus, it is our determination that NY K85523, dated May 21, 2004, correctly classified the “Teenage Mutant Ninja Turtle”® bottle topper, style B0259, in subheading 3926.40.0000, HTSUSA.

HOLDING:

NY K85523 is affirmed.

The subject “Teenage Mutant Ninja Turtle” topper, identified in NY K85523, dated May 21, 2004, as style B0259, is classified in subheading 3926.40.0000, HTSUSA, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles”. The 2005 column one, general rate of duty for the subject article is 5.3%, ad valorem.

Sincerely,

Myles B. Harmon, Director

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