CLA-2 CO:R:C:G 087281 SLR
District Director of Customs
150 North Royal
Mobile, AL 36602
RE: Protest No. 1904-0-000004;
Lunch Box with Thermos
This is our decision regarding Application for Further
Review of Protest No. 1904-0-000004, filed February 15, 1990,
against your decision in the classification of lunch box/Thermos
combinations entered on July 20, 1989, and liquidated on November
The article at issue consists of a plastic lunch box with
Thermos. A shipment of the subject merchandise was liquidated in
subheading 4202.12.2090, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), which provides for trunks, suitcases,
vanity cases, briefcases, attache cases, school satchels and
similar containers, with an outer surface of plastics, other,
dutiable at 20 percent ad valorem.
The importer claims that the subject merchandise should be
classified in one of four ways. The first classification claimed
by the importer is under subheading 3923.10.00, HTSUSA, which
provides for articles for the conveyance or packing of goods, of
plastics; boxes, cases, crates, and similar articles. This is
based on Headquarters Ruling Letter (HRL) 083362 dated July 21,
1989; and on the concept that the two items are considered a set
and classifiable under GRI 3(b). Under this claim, the lunch box
would impart the essential character to the set, similar to the
picnic cooler covered by HRL 083362.
The importer's first alternate claim is under subheading
3923.30.00, HTSUSA, which provides for articles for the
conveyance or the packing of goods, bottles, flasks and similar
articles, if it is determined that neither the lunch box nor the
thermos represents the essential character of the set. Under
GRI 3(c), the subheading for the thermos would apply since it
appears last in the Harmonized Tariff Schedule.
The second alternate claim is that each item of the set
should be classified separately: the lunch box in subheading
3923.10.00 and the thermos in subheading 3923.30.00. This is
based on the decision of the Court of International Trade in
Aladdin v. U.S., Slip Op. 89-171, which held that lunch boxes and
thermoses entered together are to be classified separately under
the Tariff Schedules of the United States Annotated (TSUSA).
The final alternate classification claimed is under
subheading 3924.90, HTSUSA, which provides for tableware,
kitchenware and other household articles of plastics, other.
This is based on a reference in the Explanatory Notes to
heading 3924 which indicates that "luncheon boxes" are included
in that heading.
What is the proper classification of the subject merchandise
under the HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. When goods are prima facie classifiable under
two or more headings, GRI 3 must be consulted. GRI 3(b) provides
that goods put up in sets for retail sale shall be classified as
if they consisted of the component which gives them their
The Explanatory Notes to GRI 3(b) indicate, in pertinent
part, that "goods put up in sets for retail sale" means goods
(a) consist of at least two different articles which are
prima facie classifiable in different headings;
(b) consist of products or articles put up together to meet
a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to
users without repacking.
The subject lunch box with thermos meets criteria (a), (b),
and (c) above. The box and thermos are classifiable under
different headings. Both items allow for the short term storage
of consumable goods. As imported, the box and thermos are put up
in a manner suitable for retail sale to the consumer without any
need for repacking.
With the above elements satisfied, the essential character
of the set must be determined to allow for proper classification.
In general, "essential character" has been construed to mean the
attribute which strongly marks or serves to distinguish an
article. It may be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by the role of
the constituent material in relation to the use of the goods.
Here, the lunch box facilitates the transportation of food
and drink from one location to another. Its role in relation to
the overall use of the goods is paramount. Consequently, the
lunch box represents the essential character of the set. An
effort must now be made to find the heading which best describes
the plastic lunch box.
Heading 3923, HTSUSA, provides, in pertinent part, for
"[a]rticles for the conveyance or packing of goods, of plastics."
Heading 4202, HTSUSA, provides, in pertinent part, for "[t]runks,
suitcases...attache cases, briefcases, school satchels...and
similar containers." Legal Note 2(h) to Chapter 39 excludes
trunks, suitcases, handbags or other containers of heading 4202
from classification in Chapter 39.
At first glance, the subject container appears to be
classifiable in heading 3923; the lunch box is used for the
conveyance of other goods. Nonetheless, it is Customs view that
heading 3923 includes, among other things, those containers
primarily designed for the preservation and storage of
consumables. While the lunch box allows for the short-term
storage and protection of food and beverages, it is designed
primarily for the convenience of the traveler. Consequently,
it is more properly classifiable as a similar container of
heading 4202. The set as a whole, therefore, is classifiable
In HRL 083362 of July 21, 1989, this office classified a
"Duet Pac" picnic cooler as an article for the conveyance of
goods, of plastic in subheading 3923.10.00, HTSUSA. As this
container was designed primarily for the convenience of the user
during travel (the picnicker on a day excursion), that
classification no longer represents the position of the Customs
Service. We have since revoked HRL 083362 in HRL 088075 of
October 24, 1990.
As to the protestant's alternate claims, heading 3924, HTSUSA,
the provision for "[t]ableware, kitchenware, other household
articles and toilet articles, of plastic" is noted -- as is the
word "luncheon box" as it appears in the Explanatory Note to
heading 3924. The subject lunch box, however, is not a household
article; it transports, stores, and protects consumable articles
outside of the home. Moreover, as indicated above, Legal Note 2(h)
to Chapter 39 excludes articles of heading 4202 from that chapter.
Finally, as Aladdin v. U.S. deals with concepts unique to the
TSUSA, it does not control the classification of the instant
merchandise entered under the HTSUSA.
The plastic lunch box with Thermos is classifiable in
subheading 4202.12.2090, HTSUSA, which provides for trunks,
suitcases, vanity cases, attache cases, briefcases, school satchels
and similar containers, with an outer surface of plastics, other.
The applicable rate of duty is 20 percent
You should deny the protest in full. A copy of this decision
should be sent to the protestant along with the
Form 19 Notice of Action.
John Durant, Director
Commercial Rulings Division