CLA-2 R:C:F 954690 LPF
James F. O'Hara, Esq.
Bruce Shulman, Esq.
Scott E. Rosenow, Esq.
Stein Shostak Shostak & O'Hara
1620 L Street, NW - Suite 807
Washington, D.C. 20036-5605
RE: Classification of Petite Miss Fashion Model Sets and Petite Miss Fashion Travel Set in subheading 9503.70, toys put up in
Dear Messrs. O'Hara, Shulman, and Rosenow:
This is in response to your submissions of April 21, 1993
and March 4, 1994, on behalf of Imperial Toy Company, regarding
the classification, under the Harmonized Tariff Schedule of the
United States (HTSUS), of Petite Miss Fashion Model Sets and a
Petite Miss Fashion Travel Set. You submitted samples with your
request for a binding ruling. On February 18, 1994, we had the
opportunity to meet with Mr. Shulman, Mr. Rosenow, and Mr. Kort
of Imperial Toy Company.
The Petite Miss Fashion Model Light-Up Mirror Set (Item
#8784) is a molded plastic cosmetic case having a lighted mirror
manufactured into the case's interior. The base has a specially
fitted, plastic tray which contains a comb, brush, lipstick, nail
polish, emery board, cosmetic sponge, plastic compact container
with eye shadow and lip gloss, and an applicator sponge. A photo
display card, paper door sign, and a paper "model's schedule"
also are included. A small slider drawer in the base is intended
for the storage of trinkets. No other storage area exists. The
carry handle is positioned on the same end as the hinges so that
the entire article may be placed on a table or dresser and be
used as a vanity or make-up mirror, making the components in the
base tray easily accessible while the youngster uses the lighted
The Petite Miss Fashion Model Set (Item #8252) consists of a
shoulder bag, imitation jewelry, lipstick, nail polish, a plastic
compact with cosmetics, applicator brush and sponge, plastic
comb, plastic brush, and plastic hand mirror.
The Petite Miss Fashion Travel Set (Item #8250) consists of
a plastic drawstring bag, a diary, plastic comb, plastic brush,
plastic hand mirror, and plastic compact with cosmetics,
applicator brush and sponge. The two latter combinations include
an "identification card" and "publicity fact sheet" which can be
cut out from the box containing the merchandise.
Invoices, advertisements from The Toy Book, and letters from
toy manufacturers' marketing and sales representatives were
submitted indicating that the merchandise is marketed and sold to
toy, drug, grocery, and other stores as children's toys. In
addition, a Focus Group Report (Report) based on interviews with
children and parents, including observations of children while
using the subject products, was submitted for our review.
The Report indicates that the makeup included in the subject
merchandise is "probably more attuned to the desires of" children
who use children's makeup as opposed to real makeup. The Report
further indicates that the use of such makeup generally takes
place at home or at a friend's house and does not involve leaving
the home with the makeup on, but, rather, involves "play." It
also is explained that girls tend to prefer such sets with
multiple items, as opposed to individual items. Accordingly, it
is your position that Imperial Toy's use of colors, styling, and
sizes for their makeup, toy jewelry, brushes, etc. are, based on
market research, designed to appeal specifically to young girls
who desire these products for their amusement.
Whether the merchandise is classifiable, as a whole, in
subheading 9503.70 as other toys, put up in sets or outfits or is
classifiable in other various headings applicable to its
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUS. Most imported 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. The Explanatory Notes (ENs) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRIs.
Although the term "toy," in general, is not specifically
defined in the tariff, the ENs to Chapter 95, HTSUS, indicate
that, "this Chapter covers toys of all kinds whether designed for
the amusement of children or adults." It has been Customs
position that the amusement requirement means that toys should be
designed and used principally for amusement. See Additional U.S.
Rule of Interpretation 1(a), HTSUS.
However, the merchandise in this case does not consist of
merely one article, but contains several distinct articles that
potentially may be classified as toys. The ENs to 9503 provide
that, "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)."
In order to achieve clarity and consistency in the
classification of toy sets and outfits, the Harmonized System
Committee of the Customs Cooperation Council amended the EN at
its 14th Session by providing the following subheading 9503.70
Subject to substantiated classification in heading
95.03 and for the purpose of this subheading:
i) "Sets" are two or more different types of
articles (principally for amusement), put
up in the same packing for retail sale
without repacking. Simple accessories or
objects of minor importance intended to
facilitate the use of the articles may also
ii) "Outfits" are two or more different articles
put up in the same packing for retail sale
without repacking, specific to a particular
type of recreation, work, person or profession.
Doc. 38.960, Annex G/12 and L/19 (HSC/14/Nov. 94).
While not legally binding, we find the new EN provides
useful guidance. It indicates that the potential set, in its
totality, is to be considered when determining whether it is used
principally for amusement. The manner in which the merchandise
is put up together, or packaged, for retail sale as well as the
marketing, advertising, and channels of trade of the potential
set as a whole is probative of its classification as a toy set of
subheading 9503.70. Further, when considering if a particular
article within the potential set is used principally for
amusement, emphasis must be placed on whether that article amuses
when viewed in its context within the entire retail packed set.
Hence, a "disparate" article of major importance, demonstrating a
minor, if any, connection to the set in its totality, would cause
the merchandise to fail as a set of this subheading.
In applying the relevant EN, consistent with the language
provided in the HTSUS, at both the heading level providing for
"other toys" and at the subheading level providing for "other
toys put up in sets or outfits," it is our position that the
instant merchandise is classifiable within subheading 9503.70.
In this case, the manner in which the merchandise, in its
totality, is retail packed indicates that it is principally used
for amusement. The packing describes and presents the
merchandise as "fashion model sets." In particular, while one
combination includes a display card, model's door sign, and
model's schedule, the other combinations include an
identification card and publicity fact sheet, all intended to
facilitate the child-consumer's play with the merchandise in the
context of a fashion model or otherwise.
The advertising and marketing of the merchandise confirms
its use as a toy. In this regard, the invoice, advertisements,
and letters from the marketing and sales representatives
submitted by counsel demonstrate that the merchandise, retail
packed in this particular manner, is sold to vendors who sell the
merchandise as toys. The packing, presentation and, hence,
channels of trade of the merchandise serve as evidence that the
merchandise will not be sold for utilitarian purposes, such as
for grooming or adorning a child, or repacked in other forms or
combinations. In our opinion, the merchandise would be retail
packed, or presented, in a different manner (i.e., at least as
other than "fashion model sets") if it were sold in alternative
markets. Moreover, it is our understanding that other sales and
marketing information and documentation would be consistent with
Although we recognize that some of the particular articles
comprising the set possess some utilitarian features, we must
emphasize that these articles, when viewed in their context
within the entire retail packed set, are consistent with the
assortments' marketing and presentation (i.e., retail packing) as
toy sets put up together for amusement. In other words, the
particular articles do not represent items of major importance
without a connection or nexus to the set as a whole. We note, in
examining the quality and presentation of the makeup included
within the assortments, that consistent with the Report submitted
by counsel, we concur that the makeup itself is primarily
designed and used for play in the home or at a friend's house as
opposed to being used for utilitarian purposes.
The Petite Miss Fashion Model and Travel Sets are
classifiable in subheading 9503.70.0030, HTSUSA, as "Other
toys;...: Other toys, put up in sets or outfits,...: Other:
Other." The rate of duty is free.
Harvey B. Fox, Director
Office of Regulations and Rulings