CLA-2 CO:R:C:G 083257 KWM
Mr. Bernard D. Liberati
Morris Friedman & Co.
320 Walnut Street
Philadelphia, Pennsylvania 19106-3883
RE: My Baby Infant Care Set
Your item numbers: 72000 and 72006
Dear Mr. Liberati,
This letter is in response to your inquiries dated November
7, 1988, requesting tariff classification of toy infant care
sets. Your letter and a sample of the goods have been forwarded
to us by our New York office for a classification ruling.
FACTS:
Two requests, each accompanied by a sample, were submitted.
The inquiries have been consolidated for classification due to
the similarity of the samples and the issues presented. Each
sample is a group of items, consisting of various individual toy
replica infant care products. The individual samples are
described below.
Your item number 72000, described as the "My Baby Care Set",
is composed of three (3) pieces, including a comb, brush and
mirror. It is, essentially, a set of individual items intended
to promote a child's play at caring for an infant. All of the
items are made of plastic and have limited functional use.
Your item number 72006, described as the "My Baby Infant
Care Set", is a larger, more elaborate version of item 72000. It
consists of eleven (11) individual items, including a brush,
comb, thermometer, soap, soapbox, sponge, pacifier, storage
containers (2), powder shaker, and diaper. All of the items are
made of plastic, and the brush and comb have limited functional
use. The diaper appears to be an actual, albeit small, diaper,
suitable for use with a live infant.
Item number 72000 is packaged and sold as a set in a
"blister pack". Item 72006 is packaged and sold as a set in a
single box with a cellophane "window" on the front. They are
clearly marketed as toys for children, ages 3 and up, and would
be used, as the box suggests, in dramatic play activities with
dolls.
ISSUE:
How are these items classified under the Harmonized Tariff
Schedule of the United States Annotated?
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's). The systematic detail
of the harmonized system 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 relevant
Section or Chapter Notes.
At the outset, it seems obvious that the merchandise
submitted in this case is intended for use as a toy. The
appearance and size of the individual pieces, coupled with the
fact that they are replicas of genuine child care products, all
point to that conclusion. While most of the items contain some
amount of functionality, they lack the strength and other
attributes normally associated with the genuine goods which these
items represent. The exception is the diaper component, which is
discussed below.
Toys are classified in headings 9501 through 9503, HTSUSA.
Specifically, subheading 9503.70, HTSUSA, provides for other toys
put up in sets and would appear to include these goods. The
question in this case is whether or not this merchandise is
considered a "set" as that term is used in 9503.70, HTSUSA.
The relevant Legal Notes do not address the scope of the
term "set" in 9503.70, HTSUSA. The Explanatory Notes indicate
that the heading is intended to cover all toys not included in
the other "toy" headings, and enumerates a number of different
types of toys that would fall within heading 9503, HTSUSA. The
Notes go on to state, in relevant part, that:
Certain of the above articles (toy arms, tools,
gardening sets, tin soldiers, etc.) are often put up in
sets.
Certain toys (e.g., electric irons, sewing machines,
musical instruments, etc.) may be capable of a limited
"use"; but they are generally distinguishable by their size
and limited capacity from real sewing machines, etc.
Each paragraph explains, to an extent, what may constitute a
"set". The first paragraph indicates that groups or collections
of toys may constitute a set. This type of set would be composed
of individual pieces, all of which would be classified
individually as toys. The second paragraph indicates that items
with a limited functional "use" may still be considered toys, and
may be included individually within the headings, as well as in
sets.
In the instant case, it is the opinion of this office that
each piece except the diaper may be considered a "toy" for
classification purposes. Some of the items are clearly toys,
while others, like the comb or brush have a limited use, but are
still considered "toys". By contrast, the diaper is a fully
functional item, and if entered separately, would be classified
under another nomenclature heading. However, the set as a whole
may still be classified under subheading 9503.70.8000, HTSUSA.
The remainder of the Explanatory Note set forth above reads as
follows:
Collections of articles, the individual items of which,
if presented separately would be classified in other
headings in the Nomenclature, are classified in this Chapter
when they are put up in a form clearly indicating their use
as toys (e.g., instructional toys such as chemistry, sewing,
etc., sets).
The diaper and replica infant care items in this case form a
collection of articles as anticipated by the Note. First, the
packaging and marketing of the merchandise clearly evidences its
use as a toy. Next, the "form" in which the collection of
articles must be put up would encompass a set of this nature.
Finally, there is no requirement that the collection of articles
be of the "instructional" or "educational" type used for the
parenthetical exemplar. In a sense, all toys are instructional
or educational since they are used as a creative and dramatic
play medium for children during the learning process. The sample
set, therefore, put up in a form clearly indicating its use as a
toy, is classified in 9503.70.8000, HTSUSA.
HOLDING:
The sample involved, referred to as "My Baby Infant Care
Set" and "My Baby Care Set" are both classified under
9503.70.8000, HTSUSA, as other toys, put up in sets, other,
other, with duty at the rate of 6.8% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division