CAFC Rules on HTS Classification of 'Similar Articles' in Case on Shelf Top Camisoles
The U.S. Court of Appeals for the Federal Circuit on Oct. 16 ruled that “shelf-top camisoles” with bust support features are not classifiable as “similar articles” to brassieres, affirming two Court of International Trade decisions. CAFC found that covering features of the shelf-top camisoles mean they are not "similar" to bras, and have to be classified in a residual tariff provision. At issue in the case was not only the tariff classification of textiles, but also the proper interpretation of the phrase “and similar articles” in the HTS. Circuit Judge Jimmie Reyna dissented, arguing that the majority’s interpretation of “similar articles” will “create unnecessary confusion in future classification cases and a high degree of unpredictability in the marketplace.”
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Classification of ‘Shelf Top Camisoles’ At Stake
The decision spanned two classification cases that CIT ruled on jointly in May 2013 related to apparel imported by Victoria’s Secret and Lerner, respectively (see 13050223). Both involved “shelf top camisoles,” which are similar to tank tops that extend to the wearer’s waist, but have narrow straps and are lower cut, and include a “shelf bra” that provides support to the wearer. The shelf bra is attached to the top, with an elastic band attached to the bottom of the shelf bra to be worn under the bust and provide support. The main difference between Victoria’s Secret’s Bra Top and Lerner’s Bodyshaper is the former is made of cotton, and the latter nylon. Victoria’s Secret, Lerner, and the government all agreed that the garments have both the support functions of a bra and the covering and outerwear functions of a tank top.
Both Victoria’s Secret and Lerner argued the garments be classified as “similar articles” in heading 6212.90.00 for “brassieres, girdles, corsets, braces, suspenders, garters and similar articles,” dutiable at 6.6%. CBP had classified the Bra Top as tank tops under heading 6109.30.10, dutiable at 16.5%, and the Bodyshaper as an “other” garment 6114.30.10, dutiable at 28.2%. CIT found them both classifiable as “other” garments under heading 6113, affirming CBP’s classification of the Bodyshaper and making Victoria’s Secret’s cotton garment dutiable at 10.8%
Additional Features Prevent Classification as ‘Similar Articles,” Says Majority
Courts decide what is included under phrases like “similar articles” under the legal principle of ejusdem generis, which provides that any unstated items added to a list must be the same kind of items already on the list, in this case “brassieres, girdles, corsets, braces, suspenders, garters.” In terms of tariff classification, that means the “similar article” must “possess the same essential characteristics” as the items on the list. CAFC found that these essential characteristics used to define similar articles “may consist of both affirmative features and limitations.” And, crucially, “even if the merchandise at issue contains certain features shared by those listed in a heading, the presence of other features in the merchandise ‘as a whole’ may negate similarity,” ruled the Appeals Court.
After examining the shelf-top camisoles imported by Victoria’s Secret and Lerner, CAFC ruled that they are not “similar articles” to the support garments listed in heading 6212. Articles of heading 6212 provide body or other garment support,” and do so as their “paramount function.” On the other hand, the shelf-top camisoles have two equal purposes, coverage and support, and the coequal function of coverage removes from classification as “similar” articles” under heading 6212, said CAFC.
Reyna Says Majority Ignores Fundamental Classification Principles
Circuit Judge Reyna dissented from the ruling, calling the majority’s analysis a “’sounds right to me’ approach that is decidedly at odds with established rules of tariff classification.” The majority’s focus on body support being the “paramount function” is a step too far, said Reyna. “In the tariff classification context, an imported article falls within the scope of a general term or phrase if it possesses the same essential characteristics that unite the listed exemplars,” he said. Once the court finds the same essential characteristics, “the inquiry should end,” said Reyna. Only an “inconsistent specific primary purpose” would then prevent classification under that heading; having dual functions does not by itself prevent classification as a “similar article.”
Focusing on the “paramount function” of the shelf-top camisole as support goes against the ejusdem generis principle the court relies on, said Reyna. That principle requires comparison only to essential characteristics, of which there could be many. Focusing on one feature as the “paramount function” imposes a narrow limitation that only one feature is to be considered, he said. “The majority’s revision of the ejusdem generis requirements is more than a small change,” said Reyna. “Similar to changing the course of a nautical heading by a few degrees, a revision of tariff classification rules will oft lead to unintended destinations.”
(Victoria’s Secret Direct, LLC v. U.S., CAFC No. 13-1468, dated 10/16/14, Judges Moore and Taranto, Reyna dissenting)
(Attorneys: Frances Hadfield of Grunfeld Desiderio for plaintiffs-appellants Victoria’s Secret Direct, LLC and Lerner New York, Inc.; Beverly Farrell for defendant-appellee U.S. government)