CLA-2 OT:RR:CTF:TCM H236278 CkG
Ms. Donna L. Shira
Sharretts, Paley, Carter & Blauvelt, P.C.
1707 L St. NW
Washington, DC 20036
Re: Request for binding ruling; classification of plastic teethers
Dear Ms. Shira:
This is in regard to your request, dated October 10, 2012, on behalf of Sassy, Inc. to the National Commodity Specialist Division (“NCSD”), for a binding ruling on the classification of a set of water-filled plastic teethers. The NCSD has forwarded your request to this office for a decision. Samples were forwarded along with your request and will be returned.
FACTS:
The instant merchandise consists of a set of two water-filled, pink or purple plastic teethers in the shape of butterflies, identified as style number 80046. The teethers are of a single color, and have bumps and ridges along the surface representing the butterfly’s eyes, mouth and antenna. A picture is included below.
ISSUE:
Whether the subject articles are toys of heading 9503, HTSUS, or other articles of plastic of heading 3926, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The HTSUS provisions under consideration are as follows:
3926: Other articles of plastics and articles of other materials of headings 3901 to 3914:
3924.90: Other:
3926.90.99: Other…..
* * * * *
9503: Tricycles, scooters, pedal cars and similar wheeled toys; dolls’
carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof…..
9503.00.00: Other………….
* * * * *
Chapter 39, Note 2(y) states:
This chapter does not cover…
(y) Articles of chapter 95 (for example, toys, games, sports equipment);
* * * * *
The Harmonized Commodity Description and Coding System Explanatory
Notes (ENs), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 95.03 states, in pertinent part:
D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults)….This group includes:
Educational toys (e.g., toy chemistry, printing, sewing and knitting
sets).
Toy money boxes; babies; rattles, jack-in-the-boxes; toy theatres with or without figures, etc.
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.
* * * * *
Classification within Chapter 39 is subject to Chapter 39, Legal Note 2(y), which excludes from Chapter 39 goods that are classifiable in Chapter 95, HTSUS. Therefore, if the subject article is provided for in Chapter 95, it is precluded from classification in any of the provisions of Chapters 39, even if it is described therein. We must therefore first address whether the subject merchandise is a toy of heading 9503, HTSUS.
Although the term “toy” is not defined in the HTSUS, EN 95.03 provides that heading 9503, HTSUS, covers toys intended essentially for the amusement of persons. U. S. v. Topps Chewing Gum, 58 CCPA 157, C.A.D. 1022 (1971) (hereafter Topps), is illustrative in determining whether an article is intended for the amusement of the user. Topps held that an article may be considered a toy if it provides the same kind of amusement as a plaything. In Topps, various decorative buttons with humorous quotes which created evident and inherent amusement were classified as toys of heading 9503.
Where merchandise might have another purpose in addition to providing amusement, the primary purpose of the item must be its amusement value for it to be classified as a toy. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33 (1977), the Customs Court held that “when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose is incidental to the amusement.”
Heading 9503, HTSUS, is a "principal use" provision within the meaning of Additional U.S. Rule of Interpretation (AUSRI) 1(a), HTSUS. Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). CBP has repeatedly held that the principal use is the use of the class or kind of merchandise at issue that exceeds any other use. In determining whether imported merchandise falls within a particular class or kind of goods, United States v. The Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), considered certain factors to be pertinent:
The physical characteristics of the merchandise
The expectation of the ultimate purchasers
The channels of trade of the merchandise
The environment of sale (accompanying accessories, manner of advertisement and display)
Use in the same manner as merchandise which defines the class
The economic practicality of so using the import
Recognition in the trade of this use.
Not all of these factors will necessarily be relevant in every situation. In the instant case, the factors for which information is available are primarily the physical characteristics, environment of sale, channels of trade and the expectation of the ultimate purchaser. On balance, these factors do not support classification of the instant merchandise as a toy of heading 9503, HTSUS.
The physical characteristics of the instant teethers strongly suggest a utilitarian principal use. They are constructed of a soft, non-abrasive plastic so as not to damage the gums, while still providing firmness and texture. They are filled with water so they can be chilled to provide a cooling sensation for sensitive gums. The mere fact that the teether is in the shape of a butterfly does not automatically transform it into a toy, and its primary purpose -- to help soothe an infant’s gums -- is evident in its design and construction. The features of the butterfly are also indistinct, and not likely to provide much stimulation for an infant, particularly when compared to the Sassy Flutterby teether (available on amazon at http://www.amazon.com/Sassy-Flutterby-Teether-Developmental-Toy/dp/B002L3T9W4/ ref=sr_1_1?ie=UTF8&qid=1362086226&sr=8-1&keywords=sassy+butterfly+teether), or the Sassy Butterfly Wing teether (available on amazon at http://www.amazon.com/Sassy-602-Teething-Wing-Butterfly/dp/B00004UDWQ/ref=sr_1_2?ie=UTF8&qid=1364833683&sr=8-2&keywords=sassy+butterfly+teether. The Flutterby teether largely resembles the teethers currently at issue in shape, with the addition of a teething ring on the bottom of the butterfly, which is colored bright yellow and blue with prominent eyes, antenna and mouth that give the butterfly a cartoon-like appearance. The Butterfly Wing is colored bright yellow, orange, green and purple, with prominent eyes, mouth and wings. In place of the right wing, the Butterfly Wing teether features a teething ring outlining the shape of the wing. In New York Ruling Letter (NY) N234234, issued to you on November 9, 2012, the Sassy Flutterby and Butterfly Wing teethers were both classified as toys in heading 9503, HTSUS, because of the more distinctive, cartoon-like features and multiple, brighter colors.
The environment of sale of the teethers, on the other hand, is inconclusive. While both the instant teethers and other Sassy teethers are characterized as “development toys” in their product descriptions, the instant articles are significantly less expensive, selling on amazon.com at $2.99 for a set of two as opposed to a minimum of $4.99 for a single Flutterby teether, $22 for the Butterfly Wing teether and $37 for a Sassy “Buzz and Bite” vibrating teether/rattle combination. The price disparity supports the respective uses of the products as a simple teether versus a combination teether/developmental toy, while the marketing supports the opposite conclusion. The channels of trade are similarly inconslusive; the teethers are generally sold and categorized as baby articles, along with other infant toys and utilitarian articles alike, so this factor does not aid our analysis. However, the expectation of the ultimate purchaser, as reflected in user reviews of the product, is that the user is purchasing a utilitarian teether. The reviews of the instant teethers focus only on the teething aspect of the instant teethers, whereas reviews of the Flutterby teether praise both its utility and its amusing features—e.g., the bright, contrasting colors and cartoon-like appearance.
Furthermore, CBP has consistently classified similar products in heading 3926, HTSUS, as articles of plastic. See e.g., NY N114489, dated August 2, 2010 (silicon teethers in the shape of chicken wings and barbeque ribs); NY L80328, dated November 3, 2004 (plastic teether filled with water, in a variety of shapes and colors); NY H81048, dated May 24, 2001 (plastic teethers shaped like popsicles); NY F86658, dated June 2, 2000 (plastic teethers in the shape of a hand and foot); NY C89185, dated July 26, 1998 (plastic fish-shaped teether); NY 805204, dated December 27, 1994 (vinyl, water-filled teethers in the shape of Disney and Sesame Street characters); and NY 805121, dated December 27, 1994 (vinyl, water-filled teethers in the shape of Disney characters).
In contrast, other teethers classified as toys have generally either incorporated additional “amusing” features such as rattles or stuffed toys, or more defined, colorful shapes. See e.g., NY N234234, dated November 9, 2012 (with a giraffe head that rattles when shaken, a teether/squeaker toy with a plush zebra head that squeaks when played with, and three water-filled plastic teethers in the shape of a butterfly and a fish); NY N173755, dated July 29, 2011 teether rings connected by a colorful central rattle); NY R00098, dated February 4, 2004 (combination teether/rattler); PD C86066, dated March 31, 1998 (teethers with plush toys and rattlers attached); and NY C89185, dated July 26, 1998 (“Massaging Turtle” teether/vibrator, "Cool Bead Racer" teether/rattle, "Baby Book” teether/rattle and “Chewy Pie” combination teether/puzzle).
The difference between a teether principally used for amusement and one with a primarily utilitarian function is well illustrated in NY N234234 and NY C89185. The Sassy Flutterby and Butterfly Wing teethers at issue in NY N234234, as noted above, feature a variety of bright, contrasting colors which serve to more clearly define the physical features of the butterfly compared to the instant teethers, as well as a variety of contrasting shapes and textures. In NY C89185, CBP also classified three combination rattler/teethers and one combination puzzle/teether as toys of heading 9503, HTSUS, and a classic, water-filled teether in the shape of a fish in heading 3926, HTSUS.
You claim that NY L86406, dated July 26, 1998, supports classification of the instant teethers in heading 9503, HTSUS. In NY L86406, CBP classified a teething ring in the shape of a fish as a toy in heading 9503, HTSUS. However, as there is no picture or additional description available for the “Cool Fishy Teether” at issue in NY L86406, we are unable to determine whether the item in question was principally used for amusement.
HOLDING:
By application of GRI 1, the subject articles are classified in heading
3924, HTSUS, specifically subheading 3924.90.56, HTSUS, which provides for “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Other: Other.” The 2013 column one, general rate of duty is 3.4% ad valorem duty.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov/tata/hts/.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division