“Wicked Witch” Candy Dish; Heading 9505; Festive Article; Midwest of Cannon Falls, Inc. v. United States

HQ 962535 March 19, 1999 CLA-2 RR:CR:GC 962535 JRS CATEGORY: Classification TARIFF NO.: 9505.90.60 Ms. Despina Keegan Serko & Simon LLP One World Trade Center, Suite 3371 New York, New York 10048 RE: “Wicked Witch” Candy Dish; Heading 9505; Festive Article; Midwest of Cannon Falls, Inc. v. United States Dear Ms. Keegan: This is in response to your letter of December 28, 1998, to the Customs National Commodity Specialist Division, New York, on behalf of Russ Berrie and Company, Inc., in which you request a ruling on a ceramic Halloween "Wicked Witch" candy dish, item # 16639. This item is to be manufactured in China. A sample was provided and a copy of the page in the 1999 Halloween catalog. Your letter was referred to this office for reply. A meeting was held at Headquarters on March 17, 1999, on the festive issue. FACTS: Item # 16639 is a ceramic Halloween candy dish. The item measures approximately 8 inches in length by approximately 6 inches in width and 4 3/4 inches in height. It features a painted figure of a witch’s head and arms which are visibly draped around the oval-shaped black bowl (or cauldron) portion of the candy dish. The witch’s head is about 3 inches in height, from the top of the hat to the bottom of her pointed chin and the head protrudes about 2 inches above the rim of the bowl. The witch is wearing a black witch’s hat, decorated with a yellow strap and square purple buckle above the brim, over painted orange hair; her green face, purple-sleeved arms and green hands extend around the top edge of the bowl. The inside of the bowl is decorated with lighting bolts, spider webs and a spider, in raised relief, while the front outside of the bowl is decorated with a green and black painted snake, in raised relief, approximately 4 inches long and two orange painted lightning bolts. In use it appears that a witch figure would be holding onto the rim of the cauldron filled with Halloween candy that would obscure her body. The effect of the article is a three-dimensional representation of a wicked witch, even though a close examination of the article discloses that there is no witch body below the shoulders or upper torso. The item is to be marketed during the Halloween season for use in holding candy or snacks. It appears in the Russ Berrie’s 1999 Halloween Catalog under the "Halloween Trick ‘N Treats" section. ISSUE: Whether the "Wicked Witch" candy dish is classified in heading 6912, HTSUS, as ceramic tableware and kitchenware or in heading 9505, HTSUS, as a festive article. LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. The headings under consideration are as follows: Heading 9505, HTSUS, governs, among other things, festive carnival or other entertainment articles. Heading 6912, HTSUS, covers ceramic tableware, kitchenware, other household articles and toilet articles, among other things. Although the candy dish is described by both headings 9505 and 6912, HTSUS, consideration must be given to relevant Chapter notes. Under Note 2(k) to Chapter 69, HTSUS, that chapter does not cover "[a]rticles of chapter 95..." The focus, therefore, is whether the "Wicked Witch" candy dish is prima facie classifiable under heading 9505; if this is the case, note 2(k), Chapter 69, precludes classification in Chapter 69 and necessitates classification under Chapter 95. You maintain that the article is properly classifiable under subheading 9505.90.60, HTSUS, the provision for "[f]estive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof; [o]ther: [o]ther." In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, when the article, as a whole: 1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal; 2. Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and 3. Is associated with or used on a particular holiday. Based upon a review of the articles subject to the Midwest decision, Customs is of the opinion that the Court has included within the scope of the class “festive articles,” decorative household articles which are representations of an accepted symbol for a recognized holiday, and utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See Customs’ Informed Compliance Publication (ICP), "Classification of Festive Articles," 32 Customs Bulletin 2/3, dated January 21, 1998. The CAFC in the Midwest decision, in discussing the functional and utilitarian items, stated: "Nothing from the pertinent subheading 9505.90.60 - ‘other festive, carnival or other entertainment articles’ - limits 9505.90.60 to only ‘non-utilitarian’ items." In addition to the criteria listed above, the Court considered the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Therefore, with respect to decorative and utilitarian articles related to holidays and symbols not specifically recognized in Midwest or in the Customs Bulletin dated January 21, 1998, at page 178 ("IV. Additional Motifs, Symbols or Representations, B. Utilitarian Items"), Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind “festive articles.” Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. The candy dish appears to meet the three Midwest criteria. It is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal. The entire candy dish is functional, and is used in the celebration of the customary giving and receiving of Halloween candy, that is, either displaying the candy received from trick-or- treating or used as a container to distribute Halloween candy to trick-or-treaters. The candy dish possesses the form of a three-dimensional representation of a witch’s upper torso and head leaning over and on the "cauldron" portion of the dish. Though the rest of the witch’s body is not visible, in this particular item, one has the perception that the witch’s legs are covered or concealed by the cauldron portion of the candy dish. The appearance of the witch’s hat, head, arms and hands are predominately displayed up and over the candy dish itself, which gives the entire article the overall physical appearance or form of a three-dimensional witch. A wicked witch is an accepted symbol for the recognized holiday - Halloween. See, 32 Customs Bulletin 2/3, dated January 21, 1998 at page 177 ("IV. Additional Motifs, Symbols or Representations, B. Utilitarian Items"). In addition to the Midwest criteria, an application of the Carborundum criteria yields the following results: (a) The general physical characteristics of the merchandise. The candy dish embodies a recognized Halloween symbol, a witch. The colorful witch predominates over the black candy dish by its three-dimensional aspect, and creates the impression by its shape, design and ornamentation that the entire article is a three-dimensional object, as discussed above. (b) The expectation of the ultimate purchaser. This candy dish is intended to be displayed and used for the celebration of Halloween. This candy dish is designed to be principally used to decorate the home at the time of Halloween and also may be used as a container from which Halloween candy may be distributed to trickortreaters. When the holiday is over, the item will be stored away until the following year since its Halloween-motif limits its use. (c) The channels of trade. The candy dish will be displayed, marketed and sold as a Halloween item at the retail level. (d) The environment of sale (accompanying accessories, manner of advertisement and display). The candy dish will be displayed by retailers during the Halloween holiday period with other Halloween decorations and items. It appears in the Russ Berrie 1999 catalog for Halloween products. Such items could not be purchased at retail after the end of the Halloween holiday season. (e) Use in the same manner as merchandise which defines the class. This candy dish is a decorative as well as functional utilitarian article similar in motif and use to other Halloween articles. It is unlikely that a purchaser would use this article during any other time of the year. The witch is so identifiable with Halloween that it effectively restricts the use and display of the candy dish to that holiday like the jack-o’-lantern mug and pitcher in the Midwest decision (f) The economic practicality of so using the import. This candy dish is limited in its usability at any time of the year other than the Halloween holiday season. A purchaser intending to use a candy dish throughout the year would probably purchase a candy dish without the Halloween motif-like decoration. (e) Recognition in the trade of this use. The trade advertises, markets and sells these items exclusively for Halloween. Based on the foregoing application of the Midwest and Carborundum criteria, we conclude that the “Wicked Witch” candy dish does qualify as a Halloween festive article of heading 9505. Accordingly, as Note 2(k), Chapter 69, HTSUS, precludes classification in Chapter 69, pursuant to GRI 1, the candy dish must be classified in heading 9505. HOLDING: The “Wicked Witch" candy dish is classified as a festive article under heading 9505, HTSUS, specifically in subheading 9505.90.60, HTSUS, the provision for “[f]estive, carnival or other entertainment articles...parts and accessories thereof: [o]ther: [o]ther ... [f]ree.” Sincerely, John Durant, Director Commercial Rulings Division