OT:RR:CTF:CPM H285887 APP
Ms. Debbie Dudzinski
Customs Compliance Analyst
GBG Beauty, LLC
4620 Grandover Parkway
Greensboro, North Carolina 27407
RE: Request for a ruling; Tariff classification of the Neon Star Beauty Case from China
Dear Ms. Dudzinski:
This is in response to your request dated February 27, 2017, on behalf of GBG Beauty, LLC (“requestor”), to U.S. Customs and Border Protection (“CBP”) for a binding ruling on the tariff classification of the Neon Star Beauty Case, style number 42KD000HBATR, which consists of a pink plastic case with make-up, plastic fingernails, nail stickers, and body tattoo stickers, under the Harmonized Tariff Schedule of the United States (“HTSUS”). Per your request, the provided sample will be returned to you.
FACTS:
The instant merchandise is a pink beauty case for children above 3 years old. It is made from molded plastic with a clear top and solid bottom (dimensions 9” L x 6” W x 5.5” H) decorated with Tokidoki characters. Two latches secure the top and are attached to the plastic by rivets. A handle and other decorative features are also secured by rivets. The case opens into two top and one bottom compartment. When the case opens, its dimensions are 9” L x 12” W x 5.5” H. The top compartment contains small amounts of the following beauty items: 3 small bottles of nail polish (neon blue, pink and green), 3 lip glosses (lemon tart, bubblegum and cherry flavors), 10 plastic fingernails, 25 nail stickers, and 5 body tattoo stickers. Those items rest in a removable clear plastic insert and are all decorated with the Tokidoki characters. Below are pictures of the sample provided by requestor:
The hang tag lists the following ingredients and amounts:
Nail polish ingredients: Water, PVP, polyvinyl alcohol, phenoxyethanol. May contain: Red 33, blue 1, yellow 5. 0.12 fl. oz. (3.5 mL) each.
Lip gloss ingredients: Ethyl palmitate, mineral oil, polybutene, squalane, beewax, silica dimethyl silylate, ceresin, polyethylene terephthalate, fragrance, phenoxyethanol, sodium saccharin, blue 1 lake, yellow 5 lake. 0.03 fl. oz. (0.8 mL) each.
Body tattoo ingredients: Acrylates copolymer, polyvinyl alcohol, water. May contain: Yellow 5 lake, yellow 6 lake, blue 1 lake, red 7 lake.
Adhesive for nail decal ingredients: Water, polyvinyl alcohol, glycerin, sodium stearate, phenoxyethanol.
ISSUE:
What is the proper tariff classification of the Neon Star Beauty Case under the HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”) and the Additional U.S. Rules of Interpretation (“AUSR”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the 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 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions under consideration in this case are as follows:
3304 Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations:
3919 Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
4202 Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper:
4908 Transfers (decalcomanias):
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
AUSR 1(a), HTSUS, provides that:
1. In the absence of special language or context which otherwise requires:
a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General ENs to Chapter 95, HTSUS, state, in relevant part, that:
This Chapter covers toys of all kinds whether designed for the amusement of children or adults ….
EN 95.03(D) states, in pertinent part, that heading 9503 covers as follows:
(D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults) … These include:
… (xii) Toy musical instruments (pianos, trumpets, drums, gramophones, mouth organs, accordions, xylophones, musical boxes, etc.) …
(xvi) Toy sewing machines …
(xviii) Educational toys (e.g., toy chemistry, printing, sewing and knitting sets) …
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....
. . .
Collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this heading when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).
It is apparent that the individual components of the Neon Star Beauty Set, if considered alone, can be classified according to the terms of the HTSUS. The plastic case is classifiable in heading 4202, HTSUS; the nail polish and lip glosses in heading 3304, HTSUS; the plastic fingernails in heading 3926, HTSUS; the nail stickers in heading 3919, HTSUS; and the body tattoo stickers in heading 4908, HTSUS.
Heading 9503, HTSUS applies to “other toys” that have not been specifically provided for in the other headings of Chapter 95. Although the term “toy” is not defined in the HTSUS, EN 95.03(D) states that a toy is designed for the amusement of children and adults. In Minnetonka Brands, Inc. v. United States, 24 CIT 645, 110 F. Supp. 2d 1020 (2000), the U.S. Court of International Trade (“CIT”) determined that a toy was designed and used principally for amusement, diversion or play, rather than practicality, and that heading 9503, HTSUS was a “principal use” provision within the meaning of AUSR 1(a). EN 95.03(D) further indicates that certain toys may be capable of limited use and that they are generally distinguishable by their size and limited capacity from the real article. EN 95.03 also states that collections of articles, whose individual components if presented separately would be classified elsewhere, are classifiable as toys of heading 9503, HTSUS, when put up in a form clearly indicating their use as toys. Examples of such collections include, but are not limited to, sewing and chemistry sets.
CBP has previously issued rulings on products similar to the Neon Star Beauty Case. In Headquarters Ruling Letter (“HQ”) 957829, dated July 3, 1996, CBP classified a fingernails decorating set, which allowed girls to paint, decorate, and wear artificial fingernails, under heading 9503, HTSUS. In New York Ruling Letter (“NY”) I88697, dated December 16, 2002, CBP classified a “Glamour Clear Crystal Beauty Salon” under heading 9503, HTSUS. It included makeup, nail art, and body art designed for young girls to glamorize themselves to role-play the part of a fancy lady. In NY I81550, dated May 16, 2002, CBP classified a “Beauty Bag Basics Cosmetic Set” consisting of a square shaped “hot” pink PVC bag, plastic flower key chain, round compact with lip gloss, large lipstick, and a sliding compact with eye shadow designed to be used by a girl to role-play as a glamorous lady in heading 9503, HTSUS. In NY F86851, dated June 7, 2000, CBP classified a “Petite Miss Total Beauty Tote” consisting of a plastic miniature cosmetic trunk, assorted make-up, sponge tipped applicators, stick-on earrings, plastic nails, emery board, nail polish, and an imitation ring designed for the amusement of children ages 5 and up pretending to be “grown-up” in heading 9503, HTSUS. In NY I87382, dated November 5, 2002, CBP classified a “Deluxe Light Up Beauty Vanity,” which was a portable toy beauty set contained inside a molded plastic case intended for young girls ages 3 and up, in heading 9503, HTSUS. The beauty set inside the case included makeup, nail polishes, play fingernails, nail tattoos, body glitter gel, body mist, sparkling hair gel, hair extensions, and a comb. In NY J86718, dated July 22, 2003, CBP classified a “Fashion Express Beauty Set” consisting of two sheets of adhesive earrings of various colors and geometric shapes, plastic gold fingernails, and a plastic tray containing blue, green, and purple eye shadow, blush, a pink lipstick, a green lipstick, an applicator brush, and a foam applicator in heading 9503, HTSUS. The combination of the articles (jewelry, fingernails and makeup) suggested their intended use together by a child role-playing as a glamorous lady.
The instant Neon Star Beauty Case is similar to the merchandise in NY F86851, in that the plastic miniature cosmetic trunk has a hinged top, plastic handle, and compartments that open out to the sides. While containing fewer articles of makeup, the makeup itself is water-based and suitable only for children like that in NY J86718, NY I88697, and NY I81550. The Neon Star Beauty Case contains artificial fingernails like the decorating set in HQ 957829. The instant merchandise is also like that in NY I87382, where the molded plastic was a miniature replica of an adult vanity case. While some of the merchandise in the aforementioned rulings consisted of items other than nailpolish, lipstick, stickers and fake fingernails, those other items, such as combs, eye shadow, and imitation jewelry were no more inherently toys than the articles here. Rather, it is the manner in which they are put up that can contribute to their being classified in heading 9503. For instance, in HQ 958344, dated October 2, 1997, we classified real makeup (in a certain form) and a miniature version of a cosmetic bag, as well as other items marketed to girls ages 5 and up, within the provision for toy sets. The ruling stated that the articles were “converted into a collection of toys put up in a set.” The basis for this decision was that the components were put up in a manner indicating their use as toys and were of the kind of articles designed purely for the amusement of children in pretending to be “grown-up.”
We further note that nail polish typically contains film forming agents, resins and plasticizers, solvents, and coloring agents. The major film forming agent is nitrocellulose. Nitrocellulose is notably absent from the instant merchandise and thus, the included nail polish is “peelable.” Nail polish of bright neon colors that peels is not generally an attractive option for an adult. The hang tag of the Neon Star Beauty Case explains that the subject nail polish (neon blue, pink, and green), body tattoo stickers, and nail stickers are water-based. The subject lip gloss contains mineral oil and comes in lemon tart, bubblegum, and cherry flavors. All items are easily removable and in small amounts and quantities, and will not last for a long time. All of these design features show that the articles are intended for use by children. However, use by children is not enough for classification as a toy. Rather, the use must be principally for amusement, diversion, or play. See Minnetonka Brands, supra.
CBP has issued numerous rulings on products put up for amusement purposes as toys that children will use to role-play. For instance, in HQ 953215, dated July 14, 1993 and NY 892328, dated December 14, 1993, CBP classified miniature sewing machines as toys of heading 9503, HTSUS, due to their small size and limited functional use. In HQ H034739, dated July 9, 2014, CBP classified a miniature drum kit as a toy of heading 9503, HTSUS, because it was a flimsy plastic article used to simulate the sounds of a real drum kit marketed for children ages 8 to 18 and sold in stores that traditionally sell toys and gifts. In NY B85837, dated June 5, 1997, CBP classified chemistry kits as educational toy sets of heading 9503, HTSUS, because manipulative play activity was found in the combining/mixing of ingredients and in connecting assorted wires to complete the various science projects. In NY F80778, dated January 11, 2000, CBP classified a nature expedition kit in heading 9503, HTSUS because it was intended for use by children in pretending to be nature explorers. In NY J83030, dated April 25, 2003, CBP classified three “Pop Stars” samples containing different combinations of makeup, body tattoos, or nail polish, among other products, in heading 9503, HTSUS, because they allowed a young child to role-play as a glamorous lady or pop star.
Similar to the merchandise in the above rulings, the subject Neon Star Beauty Case is a miniature version of the real article with limited functional use designed for young children to role-play. It resembles a miniature professional makeup artist case with clasps and with the hinged trays side by side. Like the miniature sewing machine sets, flimsy plastic drum kit, chemistry sets, and “Pop Stars” sets, the instant beauty case is designed and used as a toy principally for amusement and is distinguishable from the real article by its small size, lower quality, and limited capacity. The nail polish, nail stickers, and tattoo stickers are water-based; the lip glosses are in bright colors; the fake fingernails and body tattoo stickers are temporary and playful; and all together with the pink plastic case are designed to provide amusement for young children. A young child will use the Neon Star Beauty Case to play makeup artist with friends to emulate the makeup of the Tokidoki characters and role-play their stories.
Accordingly, we find that the Neon Star Beauty Case is classifiable as “other toys” of heading 9503, HTSUS because its principle use, within the meaning of AUSR 1(a) and the CIT holding in Minnetonka Brands, see supra, and consistent with prior CBP rulings, is use as a toy beauty case.
HOLDING:
By application of GRIs 1 and 6, and AUSR 1(a), the instant Neon Star Beauty Case is classified in heading 9503, HTSUS, specifically in subheading 9503.00.00, HTSUS, which provides for “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.” The 2017 column one, general rate of duty is Free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
A copy of this ruling letter should be attached to the entry documents filed at the time of entry.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division