H308798

 HQ H308798 May 18, 2020 OT:RR:CTF:FTM H308798 TJS CATEGORY: Classification; Origin TARIFF NO.: 1704.90.35 Center Director Agriculture & Prepared Products Center of Excellence and Expertise 1100 Raymond Blvd Newark, New Jersey 07102 Attn: Mr. Joel Mascobetto, Import Specialist RE: Internal Advice Request; Tariff Classification and Country of Origin of Lip Pops® Dear Center Director, This is in response to the internal advice request, dated February 7, 2020, initiated by Sandler, Travis & Rosenberg, P.A., on behalf of Imaginings 3, Inc. (“Imaginings”), concerning the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) and country of origin marking of certain confectionary products known as Lip Pops®. In reviewing your request, we have also considered arguments presented during an April 1, 2020 meeting. Our decision is set forth below. Imaginings has asked that certain information submitted in connection with this request be treated as confidential, pursuant to 19 C.F.R. § 177.2(b)(7). The request for confidentiality is approved. Information regarding costs and the manufacturing process contained in the request will not be released to the public and will be withheld from published versions of this ruling. FACTS: The merchandise at issue is Imaginings’ Lip Pops® and Mini Lip Pops® (collectively referred to as “Lip Pops®”), which are articles comprised of candy attached to a plastic piece designed to look like a mouth. The plastic component of the Lip Pops® includes a plastic “post” onto which the piece of hard candy is deposited. Lip Pops® are available in a variety of animal, creature, and character depictions, including popular Disney characters. The regular-sized Lip Pops® contain 0.8 oz of candy, and the Mini Lip Pops® contain 0.28 oz of candy. Imaginings provided four samples of regular-sized Lip Pops® and a variety bag of Mini Lip Pops®. The four regular-sized Lip Pops® include a bunny nose and teeth, vampire fangs, monster teeth, and a Disney character’s snout. Each Lip Pops® is attached to a piece of designed paperboard. The product is packaged in a plastic window bag, allowing the consumer to see the product through both sides of the packaging. The front of the packaging reads “Lip Pops® Lollipops” and the back includes the nutrition label and flavor key. The Lip Pops® are available in three flavors: blue raspberry, strawberry, and green apple. The flavor of the candy component is based on the color of the candy, which is visible through the back of the package. Below are images, provided by Imaginings, of regular-sized Lip Pops® in their packaging: 


 The variety bag of the Mini Lip Pops® contains six individually-wrapped “#selfie” Mini Lip Pops® depicting various animals (#puppy, #bunny, #oink, and #meow). The front of the packaging reads “Lip Pops® Lollipops,” “Artificially flavored assorted fruit flavors,” and encourages users to “Share your #LipPopSelfie with us!” The back of the package lists the nutrition label and flavors, which include watermelon, blue raspberry, strawberry, and green apple. Below is an image of the Mini Lip Pops® variety bag: 
 According to Imaginings’ submission, the plastic component will be manufactured in China (“Country One”) and combined with a confection of Mexico or Vietnam origin (“Country Two”) in Mexico or Vietnam (“Country Two”). Imaginings has proposed the following country of origin marking: “Toy Product of [Country One], Candy Made in [Country Two].” ISSUES: What is the tariff classification of the Lip Pops®? What is the country of origin for marking purposes of the Lip Pops®? LAW AND ANALYSIS: Tariff Classification Classification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification 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 GRI may then be applied. The 2019 HTSUS headings under consideration are as follows: 1704: Sugar confectionery (including white chocolate), not containing cocoa: 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: * * * * * GRI 3(a) and (b) provide as follows: When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) 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, insofar as this criterion is applicable. * * * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the EN “provide a commentary on the scope of each heading” of the HTSUS and are “generally indicative of [the] proper interpretation” of these headings. See id. The EN to GRI 3(b) state, in pertinent part: This second method relates only to: Mixtures. Composite goods consisting of different materials. Composite goods consisting of different components. Goods put up in sets for retail sales. It applies only if Rule 3(a) fails. In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. 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 EN to heading 95.03 provides in pertinent part: (D) Other toys. This group covers toys intended essentially for the amusement of persons (children or adults). * * * * * The subject Lip Pops® are composite goods, which are goods that consist of different materials or are made up of different components. The Lip Pops® consist of a plastic component and a candy component that are attached to each other to form a practically inseparable whole. Composite goods consisting of different components cannot be classified by reference to GRI 1 because the components are prima facie classifiable in different headings. GRI 3(b) states in part that “composite goods made up of different components 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

Tariff ClassificationClassification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification 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 GRI may then be applied. The 2019 HTSUS headings under consideration are as follows:1704: Sugar confectionery (including white chocolate), not containing cocoa: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: * * * * *GRI 3(a) and (b) provide as follows:When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.(b) 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, insofar as this criterion is applicable.* * * * *The Harmonized Commodity Description and Coding System Explanatory Notes(“EN”) constitute the “official interp