My Baby Infant Care Set Your item numbers: 72000 and 72006

HQ 083257 February 21, 1990 CLA-2 CO:R:C:G 083257 KWM CATEGORY: Classification TARIFF NO.: 9503.70.8000 Mr. Bernard D. Liberati Morris Friedman & Co. 320 Walnut Street Philadelphia, Pennsylvania 19106-3883 RE: My Baby Infant Care Set Your item numbers: 72000 and 72006 Dear Mr. Liberati, This letter is in response to your inquiries dated November 7, 1988, requesting tariff classification of toy infant care sets. Your letter and a sample of the goods have been forwarded to us by our New York office for a classification ruling. FACTS: Two requests, each accompanied by a sample, were submitted. The inquiries have been consolidated for classification due to the similarity of the samples and the issues presented. Each sample is a group of items, consisting of various individual toy replica infant care products. The individual samples are described below. Your item number 72000, described as the "My Baby Care Set", is composed of three (3) pieces, including a comb, brush and mirror. It is, essentially, a set of individual items intended to promote a child's play at caring for an infant. All of the items are made of plastic and have limited functional use. Your item number 72006, described as the "My Baby Infant Care Set", is a larger, more elaborate version of item 72000. It consists of eleven (11) individual items, including a brush, comb, thermometer, soap, soapbox, sponge, pacifier, storage containers (2), powder shaker, and diaper. All of the items are made of plastic, and the brush and comb have limited functional use. The diaper appears to be an actual, albeit small, diaper, suitable for use with a live infant. Item number 72000 is packaged and sold as a set in a "blister pack". Item 72006 is packaged and sold as a set in a single box with a cellophane "window" on the front. They are clearly marketed as toys for children, ages 3 and up, and would be used, as the box suggests, in dramatic play activities with dolls. ISSUE: How are these items classified under the Harmonized Tariff Schedule of the United States Annotated? LAW AND ANALYSIS: Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1; that is, according to the terms of the headings of the tariff schedule and any relevant Section or Chapter Notes. At the outset, it seems obvious that the merchandise submitted in this case is intended for use as a toy. The appearance and size of the individual pieces, coupled with the fact that they are replicas of genuine child care products, all point to that conclusion. While most of the items contain some amount of functionality, they lack the strength and other attributes normally associated with the genuine goods which these items represent. The exception is the diaper component, which is discussed below. Toys are classified in headings 9501 through 9503, HTSUSA. Specifically, subheading 9503.70, HTSUSA, provides for other toys put up in sets and would appear to include these goods. The question in this case is whether or not this merchandise is considered a "set" as that term is used in 9503.70, HTSUSA. The relevant Legal Notes do not address the scope of the term "set" in 9503.70, HTSUSA. The Explanatory Notes indicate that the heading is intended to cover all toys not included in the other "toy" headings, and enumerates a number of different types of toys that would fall within heading 9503, HTSUSA. The Notes go on to state, in relevant part, that: Certain of the above articles (toy arms, tools, gardening sets, tin soldiers, etc.) are often put up in 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. Each paragraph explains, to an extent, what may constitute a "set". The first paragraph indicates that groups or collections of toys may constitute a set. This type of set would be composed of individual pieces, all of which would be classified individually as toys. The second paragraph indicates that items with a limited functional "use" may still be considered toys, and may be included individually within the headings, as well as in sets. In the instant case, it is the opinion of this office that each piece except the diaper may be considered a "toy" for classification purposes. Some of the items are clearly toys, while others, like the comb or brush have a limited use, but are still considered "toys". By contrast, the diaper is a fully functional item, and if entered separately, would be classified under another nomenclature heading. However, the set as a whole may still be classified under subheading 9503.70.8000, HTSUSA. The remainder of the Explanatory Note set forth above reads as follows: Collections of articles, the individual items of which, if presented separately would be classified in other headings in the Nomenclature, are classified in this Chapter when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets). The diaper and replica infant care items in this case form a collection of articles as anticipated by the Note. First, the packaging and marketing of the merchandise clearly evidences its use as a toy. Next, the "form" in which the collection of articles must be put up would encompass a set of this nature. Finally, there is no requirement that the collection of articles be of the "instructional" or "educational" type used for the parenthetical exemplar. In a sense, all toys are instructional or educational since they are used as a creative and dramatic play medium for children during the learning process. The sample set, therefore, put up in a form clearly indicating its use as a toy, is classified in 9503.70.8000, HTSUSA. HOLDING: The sample involved, referred to as "My Baby Infant Care Set" and "My Baby Care Set" are both classified under 9503.70.8000, HTSUSA, as other toys, put up in sets, other, other, with duty at the rate of 6.8% ad valorem. Sincerely, John Durant, Director Commercial Rulings Division