The Classification and Country of Origin for “Push Pop Popples” Candy

N318135 April 1, 2021 CLA-2-17:OT:RR:NC:N2:N232 CATEGORY: Classification; Country of Origin TARIFF NO.: 1704.90.3550, 3926.90.9985, 9903.88.03 Mr. Louis Shoichet Sandler, Travis & Rosenberg, P.A.675 Third Avenue, Suite 1805-06New York, NY 10017 RE: The Classification and Country of Origin for “Push Pop Popples” Candy Dear Mr. Shoichet, This is in response to your letter dated March 5, 2021, on behalf of The Topps Company, Inc., requesting a ruling on the classification and country of origin on “Push Pop Popples” Candy. The subject merchandise is described as bite-size sugar candy imported and sold in a plastic reusable candy dispenser. Classification-candy: The bite-size candy, which comes in four flavors, is said to contain glucose syrup, sugar, water, modified potato starch, gelatin, sorbitol, artificial flavor, palm oil, carnauba wax, titanium dioxide and coloring matter. Each candy piece consists of a hard crunchy exterior with a soft chewy center and weights approximately 2 grams. The bite-size candy is a product of China and will be imported in a reusable plastic dispenser. The applicable subheading for the bite-size sugar candy pieces of the Push Pop Popples Candy Product will be 1704.90.3550, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Sugar confectionary (including white chocolate), not containing cocoa: Other: Confections or sweetmeats ready for consumption: Other: Other: Put up for retail sale: Other.” The rate of duty will be 5.8 percent ad valorem. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 1704.90.3550, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 1704.90.3550, HTSUS, listed above. The HTSUS is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china, respectively. Classification- the plastic candy dispenser: The candy dispenser is composed of durable rigid plastic and, per your submission, will be manufactured in South Korea. It measures approximately 3 5/8 inches high closed, approximately 5 ½ inches high when fully extended, and approximately 2 5/8 inches in diameter. The patented design and construction feature an internal lifting mechanism, an inner and outer case, and a removable lid with snap closure. The dispenser lid is specifically constructed with a side tab to permit removal by a customer so that replacement candy can be poured into the dispenser chamber for easy reuse. The container chamber and mechanism are designed to dispense a piece of candy one by one and to be refilled multiple times. It is intended that the dispenser will be reused with “Popples” candy refill packs that will be made available for sale to consumers online, but as pictured in your request, this dispenser can be refilled with other types of candy. Further, we note the design of this product allows it to be portable and easily transported by the customer. We agree that this plastic candy dispenser would be classified separately as an article of plastic, and as it is not provided for more specifically elsewhere, the applicable subheading will be 3926.90.9985, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other: Other.” The column one, general rate of duty is 5.3 percent ad valorem. Country of Origin: Pursuant to Part 134, Customs Regulations (19 CFR 134) implements the country of origin marking requirements and exceptions of 19 USC 1304. Section 134.1(b), Customs Regulations (19 CFR 134.1(b)), defines “country of origin” as: “[t]he country of manufacture, production or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the ‘country of origin’ within the meaning of this part.” A substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. A substantial transformation will not result from a minor manufacturing or combining process that leaves the identity of the article intact. See National Hand Tool Corp. v. United States, 16 C.I.T. 308 (1992), aff’d, 989 F.2d 1201 (Fed. Cir. 1993). This office reviewed the provided documentation indicating the plastic candy dispenser will be exported from South Korea to China to be filled with Chinese origin candy in China for shipment and retail sale to the United States. This office is of the opinion that filling the container, which is wholly produced in South Korea, with Chinese origin candy would not constitute a substantial transformation because the resulting product would not emerge with a new name, character, and use that is different from what it possessed prior to processing. Thus, the plastic container and the candy remain goods of their respective countries. The country of origin for the plastic container would be South Korea and the country of origin of candy would be China. Marking- Push Pop Popples Candy Product: The marking statute, section 304, Tariff Act of 1930, as amended (19 USC 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.As provided in 19 CFR 134.41(b), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.With regard to the permanency of a marking, 19 CFR 134.41(a), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, 19 CFR 134.44, generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable. We find that marking this product using the suggested, “Candy Made in China, Packaged in China, Candy Dispenser Made in So. Korea” or “Candy Made in China, Container Made in So. Korea, Packaged in China” as permissible if it meets the other requirements discussed above. This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html. 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 confectionery, contact National Import Specialist Frank Troise at frank.l.troise.cbp.dhs.gov. If you have any questions regarding the plastic candy dispenser, contact National Import Specialist Kristopher Burton at kristopher.burton@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division