'Shelf Bra Camisoles' Classified in Residual HTS Provisions, Not as Tank Tops or Bras, says CIT
Knit “shelf bra camisoles,” which combine the body covering features of a camisole with the support features of a bra, are classifiable in the Harmonized Tariff Schedule’s residual provision for knit apparel, rather than as bras or tank tops, ruled the Court of International Trade in two May 1 decisions. The two cases, Victoria’s Secret Direct v. U.S. (here) and Lerner New York v. U.S. (here), shared such similar products and issues that the court decided to try them together. Both companies were represented by the same attorneys, some testimony during trial applied to both cases, and the post-trial briefs for each company were identical.
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Victoria’s Secret’s “Bra Top” and Lerner’s “Bodyshaper” are worn on the upper body, have narrow straps, and have no shoulder or neck coverage. Both contain an interior fabric insert marketed as a “shelf bra,” which provides support to the wearer. The shelf bra on each is attached only to the top of the garment, having an elastic band attached to the bottom of the shelf bra that is designed to be worn under the bust of the wearer. Other than the straps, no component of the shelf bra is visible from the outside of either garment. Both the Bra Top and Bodyshaper extend to the wearer’s waist. According to the court, the only significant differences between the two garments are that (i) the Bra Top is mostly made of cotton, while the Bodyshaper is mostly nylon; and (ii) the Bodyshaper has adjustable straps, while the Bra Top does not.
Upon liquidation, CBP classified Victoria’s Secret’s Bra Top in HTS subheading 6109.10.00 (T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton), dutiable at 16.5%.
Lerner’s Bodyshaper, on the other hand, was classified by CBP upon liquidation in HTS subheading 6114.30.10 (Other garments, knitted or crocheted: Of man-made fibers: Tops), dutiable at 28.2%.
Both Lerner and Victoria’s Secret argued that CBP should have instead classified their shelf bra camisoles in HTS subheading 6212.90.00 (Brassieres, girdles, corsets, braces, suspenders, garters, and similar articles and parts thereof, whether or not knitted or crocheted: Other), dutiable at 6.6%. Victoria’s Secret alone argued that, if not classifiable in heading 6212, its Bra Top should alternatively be classified in HTS subheading 6114.20.00 (Other garments, knitted or crocheted: Of cotton), dutiable at 10.8%.
Shelf Bra Camisoles More Than Just Brassieres
CIT ruled that neither Lerner’s nor Victoria’s Secret’s product could be classified as a brassiere or similar article under HTS subheading 6212.90.00. Because they extend to the waist, and are intended to provide coverage as well as support, the Bra Top and Bodyshaper are more than just brassieres, CIT said. Each could conceivably be used as outerwear, which is not the case for brassieres.
The products can’t be classified as “similar articles” either, said CIT. To be included in a tariff provision by that phrase, a product “must possess the same essential characteristics or purposes that unite the listed examples preceding the general term or phrase.” All of the articles listed in the heading description -- brassieres, girdles, corsets, braces, suspenders, and garters -- either support the body or another garment. The Bra Top and Bodyshaper, however, also include an outer shell covering the torso that is required of a garment designed to be worn as an outerwear top, and therefore possess additional characteristics. The Court of Appeals for the Federal Circuit has said that when an article has additional “nonsubordinate or coequal” characteristics or purposes than a specifically listed article, it is not classifiable as that article, CIT said.
But More Than Undershirts, Too
But neither could they be classified as tank tops, CIT said, overturning CBP’s classification of Victoria’s Secret’s Bra Top. In the Harmonized System, which forms the basis for the HTS, heading 61.09 includes “T-shirts, singlets and other vests, knitted or crocheted.” In British English, “vest” means undershirt. The explanatory notes to the heading clarify that outerwear derived from undershirts, such as T-shirts with printed pictures or words, are also included in 61.09. But in all cases, goods covered under the heading are men’s undershirts, or outerwear and women’s undershirts derived from men’s undershirts. Garments like the Bra Top and Bodyshaper, “which are designed to provide bust support in addition to upper body coverage, are outside that intended scope,” CIT said.
When Congress created the HTS, it had to modify the language of the heading to make sense in American English. Thus, HTS heading 6109 became “T-shirts, singlets, tank tops and similar garments, knitted or crocheted.” The HTS is legally binding in the U.S., not the Harmonized System. But the Convention on the Harmonized System says signatories are obliged to maintain consistency with Harmonized System headings in their own national tariff schedules. Absent evidence Congress meant to broaden the scope of Harmonized System heading 61.09 when it created HTS heading 6109, “the presumption must be that the scope of heading 6109, HTSUS is the same as the scope of HS heading 61.09,” said CIT. Because the Bra Top and Bodyshaper aren’t derived from men’s undershirts in that they’re only meant to provide coverage -- the shelf bra is intended to provide support -- they aren’t classifiable in heading 6109, the court said.
Not Described Elsewhere, Classifiable in Residual Provision
Instead, CIT said both garments were correctly classified under residual provisions, affirming CBP’s classification of Lerner’s Bodyshaper and agreeing with Victoria’s Secret’s alternative classification for the Shelf Bra. Heading 6114, “Other garments, knitted or crocheted,” covers knitted or crocheted garments which are not more specifically described in headings 6001 through 6113. None of headings 6001-6113 describe the Bodyshaper or Shelf Bra, so the garments are therefore classifiable per the terms of heading 6114, the court said.
Because it is made of cotton, Victoria’s Secret’s Shelf Bra is correctly classified in subheading 6114.20.00 (Other garments, knitted or crocheted: Of cotton), dutiable at 10.8%, CIT said. As a garment made of nylon, Lerner’s Bodyshaper is correctly classified in subheading 6114.30.10 (Other garments, knitted or crocheted: Of man-made fibers: Tops), dutiable at 28.2%.
(Victoria's Secret Direct v. United States, Slip Op. 13-55, dated 05/01/13, Judge Stanceu)
(Lerner New York, Inc. v. United States, Slip Op. 13-56, dated 05/01/13, Judge Stanceu)
(Attorneys: Frances Hadfield of Grunfeld Desiderio for plaintiffs Victoria’s Secret Direct, LCC and Lerner New York, Inc.; Beverly Farrell for defendant U.S. government)