CBP Finds Pacifier Imparts Essential Characters in Pacifier Clip Set
It's the pacifier, not the pacifier clip, the gives a pacifier clip set its essential character, CBP said in a May 14 ruling (here). The set, which includes a pacifier and a pacifier clip that is stuffed and looks like a sleepy cow, was the subject of a request by Sassy to CBP for a binding ruling on the tariff classification. Sassy's lawyer, Donna Shira from Sharretts, Paley, said the clip and pacifier set should be classified based on the clip, which gives the set its essential character. Therefore, the set should be classified as a toy of heading 9503, said Sassy.
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CBP's ruling, HQ H238475, disagreed with Sassy's take. The pacifier clip is meant for use with the pacifier in order to keep it in place on the child and wouldn't be used on its own without the pacifier, said CBP. Also, it's plausible that a consumer may own a pacifier and would later buy a clip separately, whereas it's unlikely that a consumer would buy a clip without already owning a pacifier, the ruling said. "The pacifier is a product that stands on its own, however, as a consumer could well purchase a pacifier on its own, without any expectation of needing a clip," said CBP. As a result, it's the pacifier that gives the set the essential character and can be classified in subheading 3926.90.16 for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Pacifiers,” with a duty rate of 3.1 percent.
The agency also noted that had the clip been considered to give the essential character, it still wouldn't have considered it to be a toy in subheading 9503. Merchandise with utilitarian function is excluded from the heading, it said. The clip in this case serves a utilitarian purpose and the "product's amusement value, if any, is clearly secondary" to preventing the pacifier from falling or being lost, said CBP.