OT:RR:CTF:CPMM H301274 KSG
Don Boxer
Vantec Hitachi Transport System (USA), Inc.
21601 S. Western Ave.
Suite 300
Torrance CA 90501
RE: Tariff classification of children’s kitchen implements
Dear Mr. Boxer:
This ruling is in reference to your request for a binding ruling on behalf of Strottman International dated September 25, 2018, regarding the tariff classification of five (5) childrens’ kitchen utensils under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The five articles are sold individually as “Kids Cooking Club” articles: a spatula, a spoon, a measuring spoon, a measuring cup and a cookie cutter. Each item is packaged individually with a recipe-type card that includes basic food safety tips, a picture game and a recipe geared to a child. The spatula and spoon are approximately 3.5 inches in length. The measuring cup, spoon and spatula have a short wooden handle. The measuring spoon and cookie cutter are small. All the utensil are sized for a child and are incapable of producing adult portions. The measuring cup, spoon, and spatula are made of non-heat resistant plastic and are easily detachable from the short wooden handles. The product care instructions for the five articles states that they are not dishwasher safe or suitable for use in the oven, microwave, freezer or with hot liquids. The items are labeled as appropriate for children four years of age or older.
ISSUE:
Whether the articles described above are a children's toy of heading 9503 or plastic kitchenware of heading 3924.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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.
The HTSUS headings under consideration are the following:
3924 Tableware, kitchenware, other household articles and hygenic or toilet articles, of plastics:
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
Chapter Note 39, 2(y), HTSUS, excludes articles of chapter 95 and specifically, toys from classification in chapter 39. Chapter Note 95, 1(w), HTSUS, excludes "Tableware, kitchenware…and similar articles having a utilitarian function…."
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, 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 these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN for heading 9503, HTSUS, specifies that toy tools and implements are included within the heading (EN 95.03 (D)(x)).
Therefore, the first determination we must make is whether the articles are classified in chapter 95 as a toy or excluded from chapter 95 because the articles have a utilitarian function. A plastic article can only be classified as such if it is not a toy. See chapter 39 note X. Note 1(p) of section XVI excludes articles of chapter 95 from chapter 84. In Processed Plastic Co. v. United States, 473 F.3d 1164 (Fed. Cir. 2006), the court held that “the principal use of a "toy" is amusement, diversion, or play … rather than practicality. To assist in the determination of whether an article should be classified as a toy or not, the court in Ideal Toy Corp. v. United States 78 Cust. Ct. 28, 33, Cust. Dec. 4688 (1977) stated “[w]hen 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 incidental to the amusement. Various factors can be then looked at as suggestive but not dispositive to determine if an article has the principle use as amusement. Such factors include the general physical characteristics, expectation of the ultimate purchaser, usage, economic practicality. In Simon Marketing, Inc. v. U.S., 395 F. Supp. 2d 1280 (Ct. Int'l Trade, 2005), the court examined a watch embellished with characters from movie “A Bug’s Life." Using the same factors, the court found that “based on its shape, design, and minimal interactive value” the watch was not principally used for amusement. Id. at 1288.
In Headquarters Ruling Letter ("HQ") H250150, dated June 11, 2018, CBP classified a "Play Circle Pots & Pans Set", which included a bowl, a ladle, a long-handled spoon, a small spatula, a large spatula, a pastry wheel, a hand mixer, three cookie cutters, and a rolling pin, as well as four pots and pans as toys of heading 9503, HTSUS. CBP stated that it was undisputed that the articles were classified as toys. In New York Ruling Letter (NY) N277430, dated July 28, 2016, CBP classified a child-size baking set of cooking implements labeled as designed for children 6 year of age and older in subheading 9503.00.0073, HTSUS. See also NY L88147, dated October 17, 2005; NY N277551, dated August 15, 2016; NY N277542, dated August 15, 2016; and NY N277554, dated August 15, 2016. In contrast, in NY M82913, dated May 22, 2006, CBP classified plastic measuring spoons, measuring cups, a mixing spoon, mixing bowl and cake pan in heading 3924, HTSUS, as kitchenware. CBP stated that the articles in that case were "real kitchen equipment that can be used by children when cooking."
Therefore, the determinative factor is whether the principal or primary use of the articles is for amusement, diversion, or play or whether the articles have a utilitarian function and are therefore, excluded from classification in Chapter 95 by Chapter Note 1 (w), HTSUS. We have concluded that the articles in this case are designed and used for amusement, diversion or play and not for a utilitarian function. Unlike NY M82913, the articles in this case are not "real kitchen equipment." Based on the small size and flimsy nature of the handles, the kitchen utensils would not be durable and practical to use on a regular basis for a child to prepare adult portions of food or for a family. Their non-heat and non-cold resistance indicated in the care instructions (they are not usable in an oven, microwave, freezer or with hot liquids) are further support that the items are not designed or intended for daily use in food preparation. Further, their failure to be oven or dishwasher safe make the items not utilitarian in a kitchen. The articles are marketed to children as toys. Based on these factors, and the presence of simple recipes for cold salads, dressings, cookie dough, etc., and marketing geared to small children, we conclude that these articles are classified in heading 9503, HTSUS, as toys.
These articles are labeled for use by children four year of age and older. Therefore, pursuant to GRI’s 1 and 6, the children's kitchen tools are classified in subheading 9503.00.0073, 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: Other: Labeled or determined by importer as intended for use by persons: 3 to 12 years of age.”
HOLDING:
By application of GRI’s 1 and 6, the children's kitchen tools are classified in subheading 9503.00.0073, HTSUS Annotated, 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: Other: Labeled or determined by importer as intended for use by persons: 3 to 12 years of age.” The column one, general rate of duty is free.
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 on the world wide web at www.itc.gov.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division