CLA-2-85:RR:NC:MA: 112 A86183

Mr. Joel K. Simon
Serko & Simon, Counsellors at Law
One World Trade Center, Suite 3371
New York, N.Y. 10048

RE: The tariff classification of battery operated candy dispensers from China.

Dear Mr. Simon:

In your letter dated July 30, 1996, on behalf of CAP Toys, Inc. of Bedford Heights, Ohio, you requested a tariff classification ruling.

The subject samples you have submitted as representations are the "m Power candy" ("M&M") and "Power Pez" ("PEZ") battery operated candy dispensers. It is your contention that these items are classified under subheading 9503.80.0010, HTSUS, as toys (except models): incorporating an electric motor. In HRL 954131, to which you refer, amusement and utility were in contention because the functional dispenser at issue had "a whimsical face, arms with gloved hands and legs". The area which would otherwise be considered the "torso" of the figure was where the dispenser portion was designed. The figure was capable of standing on its own and was described as having "one hand raised in a waving position". Due to the "anthropomorphic" configuration of the apparatus and "its ability to provide amusement or enjoyment after the candy has been consumed", it was concluded that the product was primarily designed to amuse and that its utilitarian aspects were incidental in comparison.

The instant items, an "M&M" and "PEZ" candy dispenser, do not possess anthropomorphic or whimsical features in their design. Nor do they depict in construction or claim in advertising that the power dispensers resemble a "flying saucer" as suggested by the inquirer. We refer to NY 852481 which classified a plastic "Pez" pocket-size dispenser as 3923.00.0000, which provides for articles for the conveyance or packing of goods, of plastics, other. Whereas the non-motorized "Pez" dispenser is viewed as a holder through which candy may be extracted, this office holds that the addition of a motor does not transform the article into a toy.

The applicable subheading for the "M&M" and "PEZ" battery operated candy dispensers will be 8543.89.9090, Harmonized Tariff Schedule of the United States (HTS), which provides for other electrical apparatus, not specified or included elsewhere in Chapter 85, HTS. The rate of duty will be 3.4 percent ad valorem.

This ruling is being issued under the provisions of Part 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 the National Import Specialist Dave Curran at 212-466-5680.


Roger J. Silvestri
National Commodity
Specialist Division