CBP Says Lollipops With Novelty Holders Classifiable as Candy, Not Toys

Lollipops attached to a plastic piece that looks like a mouth are classifiable based on the candy rather than the novelty holders, CBP said in a May 18 ruling. The ruling is a result of an internal advice request from the Agriculture and Prepared Products Center of Excellence and Expertise. Imaginings 3, though the Sandler Travis law firm, requested input on the classification and country of origin marking for its Lip Pops.

The Lip Pops are made of candy on a plastic post shaped to look like various mouths that cover the consumer's mouth when the candy is being eaten, the company said. For example, some pops are shaped like vampire fangs. Imaginings said the lollipops should be classified based on plastic component, which it believes gives the essential character to the product. That's because “the plastic piece costs more than the candy component and plays the primary role in the use” of the lollipops, Imaginings said.

The company argued the Lip Pops “have a retail price comparable to conventional plastic teeth or lip toy pieces, but higher than typical hard candy or lollipops, claiming that consumers will pay the higher price for a durable toy, but not for a hard candy,” CBP said. Imagings also argued that the plastic holder is usable long after the candy is gone, CBP said.

CBP said that analysis is wrong. “We recognize that consumers are willing to pay a premium to have the candy attached to a novelty holder rather than a typical lollipop stick because the novelty holder provides additional amusement while the user is consuming the candy,” CBP said. “Regardless, we believe the candy serves as the basis for the consumer’s decision to purchase” the item “because consumers identify and use the product primarily as candy.” Also, “if a consumer primarily intends to emulate a character or amusing face, they would likely purchase a costume accessory that does not require the consumption of a candy,” the agency said.

The plastic provides a secondary function, while “the consumption of the candy is the indispensable function,” CBP said. Therefore, the product is best classified in subheading 1704.90.3550 as “Sugar confectionery (including white chocolate), not containing cocoa: Other: Confections or sweetmeats ready for consumption: Other: Other: Put up for retail sale: Other.” As a result, the country of origin marking requirements are based upon where the candy is made, either Mexico or Vietnam, and not China, where the plastic piece is produced, CBP said.