The tariff classification of a breast enhancement kit from Hong Kong or China.

NY K85388 May 12, 2004 CLA-2-39:RR:NC:SP:221 K85388 CATEGORY: Classification TARIFF NO.: 3926.90.9880 Mr. Thaddeus Gapinski Port Brokers Inc. 152-60 Rockaway Blvd. Jamaica, NY 11434 RE: The tariff classification of a breast enhancement kit from Hong Kong or China. Dear Mr. Gapinski: In your letter dated April 21, 2004, on behalf of Enhansco LLC, California, you requested a tariff classification ruling. The sample submitted with your request is a kit, identified as a “Natural Breast Developer,” that is marketed to enhance and enlarge breasts. The device consists of two plastic cups designed to fit over the breasts. There is a nipple-like protrusion at the tip of each cup. Two siphon type plastic tubes described as vacuum tubes are included. One end of the tube has an adapter that is designed to secure onto the nipple-like protrusion. The other end of the tube has a mouthpiece. When air is sucked out of the tube a vacuum type seal forms, securing the plastic cup onto the breast. Pressing down on a clamp in the middle of the tube locks the vacuum. The kit contains a digital timer that can be set to alert the user when to release the vacuum seal on the breasts. The instructions specify increasing the duration of use each day until reaching 10 minutes per breast. The system includes an instruction booklet, an instructional video and an audio CD. The voice on the CD guides the listener to use "bio imagery" to relax and meditate to help the device achieve optimum results. The set is packed inside a trapezoidal carrying case made of paperboard covered with pink acetate fabric. The interior of the case is fitted for the contents. The sample is being returned as you requested. The Explanatory Notes to the Harmonized Tariff System provide guidance in the interpretation of the Harmonized Commodity Description and Coding System at the international level. Explanatory Note X to GRI 3(b) provides that the term "goods put up in sets for retail sale" means goods that: (a) consist of at least two 2 different articles which are, prima facie, classifiable in different headings; (b) consist of articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking. Goods classifiable under GRI 3(b) are classified as if they consisted of the material or component which gives them their essential character, which may 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 article. This office considers the breast developer kit to be a set for tariff classification purposes, with the essential character imparted by the plastic cup devices. The applicable subheading for the breast developer kit will be 3926.90.9880, Harmonized Tariff Schedule of the United States (HTS), which provides for other articles of plastics, other. The rate of duty will be 5.3 percent ad valorem. The breast developer kit may be subject to the regulations of the Food and Drug Administration if therapeutic claims are made for the product. It is advisable that you consult that agency to confirm the status of your product. You may contact them at 5600 Fishers Lane, Rockville, MD 20857, telephone number 301-443-1544 or 888-463-6332. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Joan Mazzola at (646) 733-3023. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division