CLA-2 CO:R:C:T 953472 ch

Robert Swierupski
Chief, Special Merchandise Branch
National Import Specialist Division
New York Seaport
6 World Trade Center
New York, New York 10048

Re: Request for opinion concerning the classification of printed matter packaged with footwear.

Dear Mr. Swierupski:

This correspondence is in reply to your Memorandum of February 10, 1993, requesting our opinion with respect to the classification of certain printed matter packaged with footwear upon importation.


The instant merchandise is a printed leaflet and business reply mail card packaged with certain footwear. The leaflet functions as a promotion for shoes. Its text suggests that the shoes are uniquely adapted for running, and extols the virtues of their design. It also contains a phone number where information regarding other products may be obtained. Basic care instructions are provided.

The business reply mail card is postage prepaid to the manufacturer. It provides the consumer with information on how to obtain free publications, and contains a consumer questionnaire/survey.


1. Whether the printed matter and the footwear must be classified separately, pursuant to GRI 1?

2. Whether the printed matter may be classified with the footwear as "goods put up in sets for retail sale," pursuant to General Rule of Interpretation GRI 3(b)?

3. Whether the printed matter may be classified with the footwear as a "composite good," pursuant to GRI 3(b)?

4. Whether the printed matter may be classified with the footwear as "packing materials," pursuant to GRI 5(b)?


General Rule of Interpretation 1

GRI 1 states, in pertinent part, that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, provided such headings or notes do not otherwise require." The leaflet is essentially promotional in nature and is therefore classifiable under subheading 4911.10.00, HTSUSA, which provides for trade advertising material, commercial catalogs and the like. This subheading is duty Free.

The business reply mail card is classifiable under subheading 4907.00.00, as "stamp-impressed paper." This provision is duty Free.

The footwear, which is imported packaged together with the printed matter, is classifiable in accordance with the provisions of Chapter 64, HTSUSA.

Goods Put up in Sets for Retail Sale

GRI 3(b) states:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character.

You argue that the leaflet, business reply mail card and shoes packaged together comprise a "set," with the shoes imparting its essential character. Hence, you conclude that the literature should be classified with the shoes as "footwear."

The Explanatory Notes (EN) to GRI 3(b) provide, in pertinent part, that:

For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:

(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 (e.g., in boxes or cases or on boards).

As noted above, the shoes and the accompanying literature are classifiable in three distinct headings. Furthermore, as the shoes and literature are packaged together in a shoe box, they have been put up in a manner suitable for sale directly to users without repacking. The primary issue presented is whether the merchandise as packaged "meet a particular need or carry out a specific activity."

The EN to GRI 3(b) set forth several examples which aid our interpretation of this phrase:

Examples of sets which can be classified by reference to Rule 3(b) are:

(1) Sets, the components of which are intended to be used together in the preparation of a spaghetti meal, consisting of a packet of uncooked spaghetti (heading 19.02), a sachet of grated cheese (heading 04.06) and a small tin of tomato sauce (heading 21.03), put up in a carton:

Classification in heading 19.02.

The Rule does not, however, cover selections of products put up together and consisting, for example, of:

- a can of shrimps (heading 16.05), a can of pate de foie (heading 16.02), a can of cheese (heading 04.06, a can of sliced bacon (heading 16.02) and a can of cocktail sausages (heading 16.01); or

- a bottle of spirits of heading 22.08 and a bottle of wine of heading 22.04.

In the case of these two examples and similar selections of products, each item is to be classified separately in its own appropriate heading.

(2) Hairdressing sets consisting of a pair of electric hair clippers (heading 85.10), a comb (heading 96.15), a pair of scissors (heading 82.13), a brush (heading 96.03) and a towel of textile material (heading 63.02), put up in a leather case (heading 42.02):

Classification in heading 85.10.

In (1) and (2), the examples referred to as "sets" share a common trait. The individual components in each example are used together or in conjunction with another for a single purpose or activity. In the "spaghetti meal" example, each component may be sold separately and used in a variety of recipes. However, sold together they are clearly intended to be used together for the specific purpose of preparing a single dish. Similarly, the "hairdressing set" is comprised of various articles that may be sold individually for many purposes. However, taken together they are designed to be used together for a single activity.

On the other hand, (1) contains two examples where articles put up together are not regarded as "sets," despite the fact that they are related to one another and can be used at the same time. In the "canned goods" example, each can is related by the fact that they all contain food. In addition, it is possible to serve them on the same occasion. One could argue that they meet the specific need of "eating a meal." However, they do not interact with one another so as to comprise a single dish. Therefore, they do not comprise a set.

In the "spirits" example, the two articles are related as they both contain alcohol. Moreover, the wine and liquor may be served together at dinner or at a party. It is possible to argue that they have been packaged together for the specific activity of "social drinking." However, they are not used in conjunction with one another so as to be suitable for a single drink or for use on a specific occasion. Hence, they are not classified as a set.

In this case, you reason that the shoes and the accompanying literature satisfy the particular need of "having shoes to wear." The individual component articles arguably serve this purpose as they are each related to footwear. However, the shoes and literature do not result in a combination that meets a single need or activity. Rather, the literature serves a promotional or advertising function, while the shoes serve a separate practical purpose. Therefore, these items do not comprise a set.

Composite Goods

The EN to GRI 3(b) provide, in part, that:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

The shoes and the printed materials are not attached to each other. Hence, they may be viewed as composite goods only if they are "adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts." You point out that the literature accompanying the shoes would not normally be offered for sale alone. Therefore, the issue before us is whether these items are "adapted one to the other and are mutually complementary and that together they form a whole."

The EN to GRI 3(b) set forth two examples of articles regarded as composite goods:

(1) Ashtrays consisting of a stand incorporating a removable ash bowl.

(2) Household spice racks consisting of a specially designed frame (usually of wood) and an appropriate number of empty spice jars of suitable shape and size.

In the first example, a removable ashtray and a stand may be joined to form an "ashtray stand." The second example involves a customized frame which possesses slots of a proper size to hold jars of specified dimensions. Thus, the frame and the jars may be joined to form a spice rack. These exemplars suggest that a composite good may consist of two or more items which may be physically joined together so as to comprise a completed article.

In this case, the literature and the shoes cannot be joined together physically, or in any other manner, to make up a single complete article. Rather, the shoes are completed articles unto themselves, as are the printed materials. Accordingly, they do not comprise a composite good.

Packing Materials

GRI 5(b) states that:

Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.

As this language indicates, GRI 5(b) encompasses materials and containers used to protect goods for shipping, so long as they are of a kind normally used for this purpose and they are not clearly suitable for repetitive use. In addition, we have interpreted this provision to include retail packing of a kind used to display merchandise. For example, in Headquarters Ruling Letter (HRL) 555806, dated January 14, 1991, and HRL 954437, dated November 9, 1993, we concluded that devices used to inflate certain handbags and backpacks were packing materials.

However, the instant printed matter fails to perform these functions. The literature does not protect merchandise during shipping. Moreover, the printed matter does not enhance the appearance of the shoes for display purposes. We do not interpret GRI 5(b) so as to encompass material which has been merely packed with goods. Therefore, the printed material is not classifiable as packing materials.

Practical Concerns

In your Memorandum, you assert that classifying the shoes and accompanying literature individually will result in a "blizzard" of unnecessary paperwork and irrational classification distinctions.

First, you point out that separate classification of incidental printed materials could have the effect of defeating otherwise legitimate sets. For example, the items comprising the "spaghetti meal" exemplar cited above are clearly to be regarded as a set upon importation. If these articles are packaged with promotional literature, however, this material would be classified separately. From this fact we could infer that the package as a whole could not be viewed as a set, and each component item would be classified individually.

In Headquarters Ruling Letter 950466, dated January 6, 1992, we addressed the classification of an elastic cord lace system for athletic shoes. This unit was comprised of two stretch lace cords secured at either end by a piece of plastic, two round plastic clips covered by rubber semi-basketballs, and a round flat plastic sticker printed with the legend "Do It With NRG." In that ruling, the importer argued that inclusion of the plastic sticker precluded the entire unit from being classified as a set. We stated:

Under the de minimis rule, a component which is merely an incidental or immaterial element of an entire article, does not enhance its value, and has no commercial purpose, is disregarded for classification purposes. (Emphasis in original).

Applying these criteria, we held that the sticker was de minimis and we disregarded the sticker completely. Therefore, the set was not defeated.

In this case, the purchaser of the shoes does not bargain for inclusion of the printed matter. Hence, this material is an incidental or immaterial component of the package, and does not enhance the value of the merchandise. Moreover, the literature has no commercial purpose related to the set, as the consumer does not view this material at the time of purchase. Accordingly, the printed literature is de minimis and may be disregarded for classification purposes. Hence, a valid set will not be defeated by the inclusion of the instant literature.

Second, you state that many inspectors and import specialists ignore the promotional literature accompanying the article of chief value in a given shipment. On the other hand, it is possible for importers to list the printed materials as separate items upon entry. If we find that the literature is not classifiable with the merchandise as a set or composite good, you argue that the shipments will be inconsistently classified based solely upon the manner in which they are entered.

The differing entry practices you cite are not the result of inconsistent classification principles. Although the printed matter is properly classified as separate items when imported with the footwear, Customs officials ignore the literature because it is de minimis. For the same reason, importers usually do not itemize de minimis literature accompanying the merchandise of chief value. In the interests of consistency, Customs should disregard the literature even when an importer takes the trouble to itemize it separately.

Although we have determined that the printed matter is de minimis in this instance, we note that this conclusion may not be warranted in all cases. We recognize that literature packaged with merchandise may be of such a nature or of such value in certain instances that it cannot and should not be considered de minimis. In that event, the de minimis rule will not apply and the printed matter should be classified separately. Further, there may be instances where an importer wishes to take advantage of certain special programs available under Chapter 98. In these instances the de minimis rule should not be used to defeat the importer's right to claim such preferential treatment.

Finally, you point out that certain tariff headings involve "price breaks." As an example, you cite the classification of sports footwear, with outer soles of rubber or plastics. Pursuant to subheading 6404.11.70, if the shoes are valued at between $3.00 and $6.50 per pair, they are dutiable at $.90 per pair + 37.5%. On the other hand, if the shoes are valued at between $6.50 and $12.00 per pair, they are dutiable at $.90 per pair + 20%. Thus, if the shoes have a value of $6.49 per pair and the promotional literature has a value of $.02, separating the literature from the shoes will affect their classification. You imply that this result will negatively impact the classification of footwear. We disagree.

It should be noted that this decision is inapplicable insofar as the appraisement of merchandise is concerned. Accordingly, the classification of merchandise subject to price break subheadings, i.e., where classification of the merchandise is dependent on its appraised value, will be unaffected. Furthermore, it should also be noted that while the concept of de minimis is present in NAFTA, e.g., in article 405 and in section 5 of the NAFTA Rules of Origin Regulations, this decision has no bearing whatsoever on the application of de minimis under NAFTA.

American Goods Returned

It should be noted that if the literature involved in this case is of United States origin and is being returned with the footwear without having been advanced in value or improved in condition while abroad, it would be entitled to duty-free treatment under subheading 9801.00.10, HTSUSA, assuming compliance with the documentation requirements of 19 CFR 10.1. See Superscope, Inc. v. United States, 13 CIT 997, 727 F.Supp. 629 (1989), and HRL's 731806, dated November 18, 1988, and 556798/556797, dated September 23, 1993. Under these circumstances, the value of the printed matter would not be included in the appraised value of the footwear.


The subject leaflet, business reply mail card and footwear do not comprise a "set put up for retail sale," a "composite good" or "packing materials" pursuant to the GRI. They shall be disregarded as de minimis materials for classification purposes.


John Durant, Director