Warner-Lambert Co. v. United States

Slip Op. 08-25

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS

_____________________________________
:
WARNER-LAMBERT COMPANY, :
:
Plaintiff, :
: Consolidated
v. : Court No.: 06-00104
:
UNITED STATES, :
:
Defendant. :
_____________________________________ :

Held: Plaintiff’s motion for summary judgment denied. Defendant’s
motion for summary judgment is also denied.

Dated: March 3, 2008

Rode & Qualey, (Patrick D. Gill) for Warner-Lambert Company,
Plaintiff.

Jeffrey S. Bucholtz, Acting Assistant Attorney General; Barbara S
Williams, Attorney-in-Charge, International Trade Field Office,
Bruce N. Stratvert, Civil Division, Commercial Litigation Branch,
United States Department of Justice, Defendant.

OPINION

TSOUCALAS, Senior Judge: Plaintiff Warner-Lambert Company

(“Plaintiff” or “WLC”) challenges the classification of Certs® Cool

Mint Drops by the United States Bureau of Customs and Border
Court No. 06-00104 Page 2

Protection1 (“Defendant” or “Customs”) under Heading 1704 of the

Harmonized Tariff Schedule of the United States (“HTSUS”) covering

sugar confectionery.2 Plaintiff maintains that the merchandise at

issue is properly classified under Heading 3306, HTSUS, as

“preparation for oral or dental hygiene.” This matter is before

the Court on cross-motions for summary judgment pursuant to USCIT

R. 56.

JURISDICTION

The Court has jurisdiction over this matter pursuant to 28

U.S.C. § 1581 (2000).

STANDARD OF REVIEW

On a motion for summary judgment, the Court must determine

whether there are any genuine issues of fact that are material to

the resolution of the action. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A factual dispute is genuine if it might

1
The Bureau of Customs and Border Protection was renamed
United States Customs and Border Protection, effective March 31,
2007. See Name Change From the Bureau of Immigration and Customs
Enforcement to U.S. Immigration and Customs Enforcement, and the
Bureau of Customs and Border Protection to U.S. Customs and
Border Protection, 72 Fed. Reg. 20,131 (April 23, 2007).

2
Heading 1704, HTSUS, covers “[s]ugar confectionery
(including white chocolate), not containing cocoa.”
Court No. 06-00104 Page 3

affect the outcome of the suit under the governing law. See id.

Accordingly, the Court may not decide or try factual issues upon a

motion for summary judgment. See Phone-Mate, Inc. v. United

States, 12 CIT 575, 577, 690 F. Supp. 1048, 1050 (1988). When

genuine issues of material fact are not in dispute, summary

judgment is appropriate if a moving party is entitled to judgment

as a matter of law. See USCIT R. 56; see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).

DISCUSSION
I. Background

Plaintiff WLC imported Certs® Cool Mint Drops and Certs®

Powerful Mints. See Complaint ¶ 2; Def.’s Resp. Amended Complaint

¶ 2. The active ingredient of both Certs® Cool Mint Drops and

Certs® Powerful Mints is Retsyn®, which consists of partially

hydrogenated cottonseed oil and copper gluconate. See Complaint ¶¶

9, 10, 26; Def.’s Resp. Amended Complaint ¶¶ 9, 10, 26. The main

difference between Certs® Cool Mint Drops and Certs® Powerful Mints

is that the former contains sugar and the latter is sugar-free.

See Complaint ¶ 23; Def.’s Resp. Amended Complaint ¶ 23.

Customs liquidated Certs® Powerful Mints and Certs® Cool Mint

Drops under subheading 1704.90.35.90 as a sugar confectionery. See

Pl.’s Statement Material Facts Not Dispute (“WLC’s Facts”) ¶ 29;
Court No. 06-00104 Page 4

Def.’s Resp. Pl.’s Statement Material Facts Not Dispute (“Customs’

Resp.”) ¶ 29. WLC timely protested pursuant to 19 U.S.C. § 1514

challenging classification of its merchandise. See Complaint, ¶¶

3, 4; Def.’s Resp. Amended Complaint ¶¶ 3, 4.

The sugar-free Powerful Mints were considered in Warner-

Lambert Co. v. United States, 28 CIT 788, 343 F. Supp. 2d 1315

(2004), reversed by, 407 F.3d 1207 (Fed. Cir. 2005) (hereinafter

“test case”). Before the Court of International Trade (“CIT”), WLC

argued that Powerful Mints were a sugar-free product that should be

classified under HTSUS subheading 3306.90.00 as preparations for

oral or dental hygiene that are free of duty. See Warner-Lambert

Co., 28 CIT at 788, 343 F. Supp. 2d at 1316. Customs countered

that if the Court finds that the merchandise at issue is indeed

sugar-free, then the merchandise should be classified under HTSUS

subheading 2106.90.99 as food preparations not elsewhere specified

or included, dutiable at the rate of 6.4 percent ad valorem. See

Warner-Lambert Co., 28 CIT at 788-89, 343 F. Supp. 2d at 1316-17.

Following a bench trial, the CIT determined, inter alia, that

“Certs® Powerful Mints are marketed, advertised and primarily

purchased by consumers as breath mints. Plaintiff's expert

testified that the Retsyn®, contained in the subject merchandise,

combats bad breath since copper gluconate, cottonseed oil and

natural flavoring neutralize and mask bacteria in the mouth which
Court No. 06-00104 Page 5

commonly cause bad breath. Moreover, consumption of the product

results in an increase in salivation which causes a physical

rinse-out or dislodgement (purging) of accumulated volatile sulfur

compounds or a reduction of the number of bacteria in the mouth

(specifically, a result of swallowing).” Warner-Lambert Co., 28

CIT at 793, 343 F. Supp. 2d at 1320. However, relying on a

monogram issued by the FDA, the CIT determined that “[o]nly

antimicrobial measures, such as using a germ killing mouthwash

‘intended to treat or prevent disease,’ aide in the preservation of

oral health.” Warner-Lambert Co., 28 CIT at 793, 343 F. Supp. 2d

at 1320. The CIT accordingly held that the subject product cannot

be considered a preparation for oral hygiene. Warner-Lambert Co.,

28 CIT at 794, 343 F. Supp. 2d at 1321. On appeal, the United

States Court of Appeals for the Federal Circuit (“CAFC”) reversed

the CIT and held that Certs® Powerful Mints are properly

classifiable under Heading 3306, HTSUS. See Warner-Lambert Co.,

407 F.3d 1207, 1211 (Fed. Cir. 2005).

Following the test case, Customs denied protests that are the

subject of the instant action on the ground that the test case

“applied to sugar free mints only.” See WLC’s Facts ¶ 29; Customs’

Resp. ¶ 29. The instant action concerns proper classification of

WLC’s entries, which Plaintiff purports to be Certs® Cool Mint

Drops. See Complaint ¶ 2; Def.’s Resp. Amended Complaint ¶ 2.
Court No. 06-00104 Page 6

Plaintiff filed a Complaint in this action on April 18, 2007 and

filed an Amended Complaint on May 10, 2007. See WLC’s Facts ¶¶ 6,

7; Customs’ Resp. ¶¶ 6, 7. Defendant filed an Answer to the

Amended Complaint on July 6, 2007. See WLC’s Facts ¶ 8; Customs’

Resp. ¶ 8. All liquidated duties with respect to the subject

entries were paid prior to the commencement of this action. See

Complaint ¶ 5; Def.’s Resp. Amended Complaint ¶ 6. On August 14,

2007, the record of the test case was incorporated in the record of

this case.

II. Applicability Of The Principle Of Stare Decisis

Plaintiff contends that the merchandise at issue, Certs® Cool

Mint Drops, was the subject of the test case and therefore is

classifiable under Heading 3306 as a matter of law. See Mem. Supp.

Pl.’s Mot. Sum. J. (“WLC’s Brief”) at 1. According to Plaintiff,

the test case reviewed Headquarters Ruling 963764, which involved

both Certs® Powerful Mints containing artificial sweetner and

Certs® Cool Mint Drops containing sugar. See id. at 2-3.

Plaintiff states that in the Headquarters Ruling Customs treated

both Certs® Powerful Mints and Certs® Cool Mint Drops as the same

in concluding that they are not classifiable under Heading 3306,

HTSUS. See id. at 6.
Court No. 06-00104 Page 7

Plaintiff goes on to argue that the CAFC similarly treated

both products as one in rejecting Customs’ analysis. See id.

Citing to the language of the CAFC’s opinion in the test case,

Plaintiff states that the CAFC rejected Customs’ classification of

both Certs® Powerful Mints and Certs® Cool Mint Drops.3 See id. at

4-5. Plaintiff claims that Customs erroneously denied the protests

in this action on the ground that only Certs® Powerful Mints were

the subject of the test case. See id. at 5-6. In addition,

Plaintiff argues that the principle of stare decisis should be

invoked in granting summary judgment in its favor because this

action involves the same parties, same merchandise and same legal

issue. See id. at 7-8.

Customs disagrees with Plaintiff’s contentions and argues that

the test case involved only Certs® Powerful Mints based on the

3
Plaintiff specifically relies on the following portion
of the CAFC’s opinion in the test case:

To justify its proposed classification under
headings 17.04 or 21.06, Customs stated simply:
“The Certs Cool Mint Drops consist essentially of
sugar.” HQ 963764, at 7. This dismissive analysis
neglects not only those chemical components of the
mints which achieve the breakdown and absorption
function, but also the cleansing effect of the
purging activity. In sum, Customs’ proposed
classification carried little power to persuade
because it overlooked some characteristics of the
imports and read the term “hygiene” too narrowly to
remain consistent with the Explanatory Notes.
Warner-Lambert Co., 407 F.3d at 1210-11.
Court No. 06-00104 Page 8

entry papers, pleadings and decision of this Court. See Def.’s

Mem. Supp. Mot. Sum. J. Opp’n Pl.’s Mot. Sum. J. (“Def.’s Brief”)

at 17. Because Cool Mint Drops were not at issue in the test case,

Customs argues that neither this Court nor the CAFC had subject

matter jurisdiction over classification of the subject merchandise.

See Def.’s Brief at 17. Customs suggests that the CAFC mentioned

Certs® Cool Mint Drops in its decision only for the limited purpose

of illustrating the weakness of the Headquarters Ruling. See id.

at 18. Customs thus contends that the CAFC’s decision in the test

case should not be read as the same as a decision on Certs® Cool

Mint Drops since they were not reviewed in the test case and the

two products are not interchangeable. See id.

Moreover, Customs argues that courts have permitted

relitigation of classification cases. See id. at 19. Customs

further argues that the decision of the test case is not stare

decisis because the subject merchandise is materially different

than the sugar-free Certs® Powerful Mints reviewed in the test

case, and the two cases involve different legal issues. See id. at

21-22.

The Court finds no merit to Plaintiff’s argument that the test

case ruled on the classification of Certs® Cool Mint Drops. “A

pleading which sets forth a claim for relief . . . shall contain .

. . (2) a short and plain statement of the claim showing that the
Court No. 06-00104 Page 9

pleader is entitled to relief, and (3) a demand for judgment for

the relief the pleader seeks.” USCIT R. 8(a). Plaintiff in the

test case did not set forth a claim for relief with respect to

Certs® Cool Mint Drops and thus it failed to satisfy the pleading

requirements with respect to Certs® Cool Mint Drops. Indeed, WLC

alleged in paragraph nine of the complaint filed in the test case

that “[t]he imported merchandise in issue is a sugar-free product

which cannot be classified with the sugar-based products of Chapter

17 and specifically those provided for under subheading

1704.90.35.” Complaint at 2, Warner-Lambert Co. v. United States,

343 F. Supp. 2d 1315 (2004)(Court No. 02-00254). Although it is

true that the Headquarters Ruling reviewed both Certs® Powerful

Mints and Certs® Cool Mint Drops, Plaintiff’s complaint was limited

to Certs® Powerful Mints and Plaintiff sought relief only with

respect to Certs® Powerful Mints. See id. The trial court

specifically made a finding of fact that “[t]he merchandise at

issue is Certs Powerful Mints.” Warner-Lambert Co., 28 CIT at 789,

343 F. Supp. 2d at 1317. The CAFC “[held] that Warner-Lambert’s

Certs® Powerful Mints properly fall under heading 33.06 of the

HTSUS.” Warner-Lambert Co., 407 F.3d at 1211. Although Plaintiff

could have sought relief with respect to Certs® Cool Mint Drops in

the test case since the Headquarters Ruling reviewed both products,

Plaintiff chose not to do so. Accordingly, Plaintiff cannot now

argue the test case encompassed Certs® Cool Mint Drops.
Court No. 06-00104 Page 10

The Court also finds no merit to Plaintiff’s argument that

stare decisis requires the Court to rule in its favor. Stare

decisis means “not to disturb what is settled.” United States v.

Mercantil Distribuidora, S.A., 45 C.C.P.A. 20, 23 (1957). “[T]he

doctrine of stare decisis applies to only legal issues and not

issues of fact[.]” Avenues In Leather v. United States, 423 F.3d

1326, 1331 (Fed. Cir. 2005). The determination of whether the

subject merchandise falls within the description of a tariff

provision is a question of fact. See id.

In the instant matter, stare decisis requires that this Court

follow the CAFC’s legal determination that Heading 3306 does not

require an antimicrobial activity and that “chemical components .

. . which achieve the breakdown and absorption function” and “the

cleansing effect of the purging activity” of Certs® Powerful Mints

are sufficient for their classification under Heading 3306.

Warner-Lambert Co., 407 F.3d at 1210-11. Customs does not contend

that it seeks to relitigate that issue, but seeks to introduce

evidence that Certs® Cool Mint Drops are dissimilar from the

merchandise considered in the test case. Although this action and

the test case involve the same parties and the subject merchandise

are similar to the extent that they are both breath mints

containing Retsyn®, there are significant differences between the

merchandise at issue. The two products are marketed under

different names and contain different ingredients. Moreover, the
Court No. 06-00104 Page 11

legal and factual issues to be resolved are different. Thus, the

Court rejects Plaintiff’s argument that stare decisis requires a

judgment in its favor.

III. Classification Of Certs® Cool Mint Drops

Determining whether imported merchandise was classified under

the appropriate tariff provision entails a two-step process. See

Sabritas, S.A. de C.V. v. United States, 22 CIT 59, 61, 998 F.

Supp. 1123, 1126 (1998). First, the proper meaning of specific

terms in the tariff provision must be ascertained. See Sports

Graphics, Inc. v. United States, 24 F.3d 1390, 1391 (Fed. Cir.

1994). Second, whether the imported merchandise falls within the

scope of such terms, as properly construed, must be determined.

See id. The first step is a question of law and the second is a

question of fact. See id.; see also Universal Elecs., Inc. v.

United States, 112 F.3d 488, 491 (Fed. Cir. 1997).

“Applied in numerical order, the [General Rules of

Interpretation] of the HTSUS and the Additional United States Rules

of Interpretation govern the proper classification of merchandise

entering the United States.” N. Am. Processing Co. v. United

States, 236 F.3d 695, 698 (Fed. Cir. 2001) (citing Carl Zeiss, Inc.

v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999)). General

Rules of Interpretation (“GRI”) 1 states that “classification shall
Court No. 06-00104 Page 12

be determined according to the terms of the headings and any

relative section or chapter notes.” Gen. R. Interp. 1, HTSUS. GRI

2(b) instructs that “[t]he classification of goods consisting of

more than one material or substance shall be [determined] according

to the principles of rule 3.” Gen. R. Interp. 2, HTSUS. GRI 3

instructs that if goods can be classified on their face under more

than one heading, then classification shall be based upon the

following:

(a) The heading which provides the most specific
description shall be preferred to headings providing a
more general description. However, when two or more
headings each refer to part only of the materials or
substances contained in mixed or composite goods or to
part only of the items in a set put up for retail sale,
those headings are to be regarded as equally specific in
relation to those goods, even if one of them gives a more
complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and goods
put up in sets for retail sale, which cannot be
classified by reference to 3(a), shall be classified as
if they consisted of the material or component which
gives them their essential character, insofar as this
criterion is applicable.
(c) When goods cannot be classified by reference to 3(a)
or 3(b), they shall be classified under the heading which
occurs last in numerical order among those which equally
merit consideration. Gen. R. Interp. 3, HTSUS.

A. Classification Under Heading 1704

Customs argues that it properly classified Certs® Cool Mint

Drops under Heading 1704 by application of GRI 3(b) because they

constitute a composite article consisting of Retsyn® and sugar
Court No. 06-00104 Page 13

confectionery. See Def.’s Brief at 5-6. Applying GRI 3(b),

Customs argues that sugar, which makes up over 90 percent of the

article, imparts the product’s essential character. See id. at 6.

Pointing to evidence that “sugar clearly plays a negative role with

respect to oral and dental hygiene” Customs argues that this

characteristic excludes classification of Certs® Cool Mint Drops

under Heading 3306 as oral or dental hygiene product. See id. at

6-7.

Plaintiff disputes Customs’ contentions and argues that

“composite articles under GRI 3(b) are articles with discrete

components which are ‘classifiable under two or more headings.’”

Pl.’s Reply Def.’s Mem. Support Mot. Sum. J. Opposition Pl.’s Mot.

Summ. J. (“WLC’s Reply”) at 10. According to Plaintiff, Certs®

Cool Mint Drops are not a composite article subject to GRI 3(b)

because they are only classifiable under Heading 3306. See WLC’s

Reply at 11. Even if this Court were to find that Certs® Cool Mint

Drops are a composite article, Plaintiff maintains that their

essential character as a preparation for oral hygiene would be at

least co-equal with the confectionery element, and under GRI 3(c),

the subject merchandise must be classified under Heading 3306,

which appears last in the HTSUS. See id. at 11-12.

The Court finds that Certs® Cool Mint Drops are a “[m]ixture

or composite good[] consisting of different materials” insofar as

they consist of Retsyn® and sugar confectionery and finds that GRI
Court No. 06-00104 Page 14

3(b) applies to their proper classification.4 Based on the CAFC’s

decision in the test case, Retsyn® is classifiable under Heading

3306 as an oral or dental hygiene product based on its ability to

“achieve the breakdown and absorption function” and “the cleansing

effect of the purging activity.” Warner-Lambert Co., 407 F.3d at

1210. The sugar portion of Certs® Cool Mint Drops is likewise

classifiable under Heading 1704 as sugar confectionery.

GRI 3(b) instructs that such “[m]ixtures [or] composite goods

consisting of different materials or made up of different

components . . . shall be classified as if they consisted of the

material or component which gives them their essential character.”

Determination of the essential character is an issue of fact. See

Structural Indus., Inc. v. United States, 356 F.3d 1366, 1370 (Fed.

Cir. 2004) (citing Pillowtex Corp. v. United States, 171 F.3d 1370,

1376 (Fed. Cir. 1999)).

Here the parties disagree as to the essential character of the

subject merchandise. Defendant maintains that Certs® Cool Mint

Drops consist of over 90% sugar and that sugar imparts the

essential character. Moreover, Defendant put forth evidence that

sugar is in fact detrimental to oral and dental hygiene because it

4
The Court finds no merit to Plaintiff’s argument that
GRI 3(b) is applicable to only merchandise consisting of discrete
components. See, e.g., Cargill, Inc. v. United States, 28 CIT
401, 318 F. Supp. 2d 1279 (2004) (deodorizer distillate imported
with a mixture of fatty acids and tocopherols).
Court No. 06-00104 Page 15

“provides food for bacteria which induces inflammation of the gums

and leads to periodontal disease.” Def.’s Brief at 6. On the

other hand, Plaintiff contends that Retsyn® imparts the essential

character. Alternatively, Plaintiff argues that the essential

character of Retsyn® is at least co-equal to that of sugar, and

application of GRI 3(c) results in classification of the subject

merchandise under Heading 3306.

A factual dispute is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

disputed fact is material if it could affect the suit's outcome

under the governing law. See id. Here, the parties have a genuine

dispute as to the essential character of the subject merchandise,

which is a material fact, and as such, further factual finding is

necessary. See, e.g., Phone-Mate, Inc. v. United States, 12 CIT

575, 577, 690 F. Supp. 1048, 1050 (1988) (“The court may not

resolve or try factual issues on a motion for summary judgment”)

(citation omitted).

B. Classification Under Heading 3306
1) Terms Of The Heading And Chapter Notes

Customs alternatively argues that Certs® Cool Mint Drops must

be excluded from Heading 3306 upon application of rule 1(a) of the

Additional U.S. Rules of Interpretation (“ARIs”), which govern
Court No. 06-00104 Page 16

tariff classification of imported merchandise under use

provisions.5 See Def.’s Brief at 7-8. Customs asserts that

Heading 3306 providing for “preparations for oral and dental

hygiene” is a use provision and that Heading 3306 must be read to

mean preparation for use in oral and dental hygiene. See id. at 9.

Customs goes on to argue that proper application of ARI 1(a)

requires determination of the class or kind to which the imported

goods belong and the principal use of that class or kind of goods

at, or immediately prior to the date of importation. See id. at

10-16. Customs explains that the relevant factors to consider in

making such determinations are: (1) general physical

characteristics of the merchandise, (2) expectation of the ultimate

purchaser, (3) use in the same manner as merchandise which defines

the class, (4) practicality of such use, and (5) the channels of

trade, environment of sale and recognition in the trade. See id.

at 11-16. Following an analysis of each factor, Customs contends

5
ARI 1 provides:

In the absence of special language or context which
otherwise requires-

(a) [A] tariff classification controlled by use (other
than actual use) is to be determined in accordance
with the use in the United States at, or
immediately prior to, the date of importation, of
goods of that class or kind to which the imported
goods belong, and the controlling use is principal
use[.]
Court No. 06-00104 Page 17

that Certs® Cool Mint Drops are in the same class or kind as

chewing gums and mints and argues that they should be excluded from

Heading 3306. See id. at 16.

As a threshold matter, Plaintiff opposes Defendant’s principal

use argument on the ground that Defendant did not raise this

argument in the test case.6 See WLC’s Reply at 12. In responding

to the substance of Customs’ contention, Plaintiff agrees that

Heading 3306 is a use provision, but argues that it is a special

type of use provision that requires examination of whether

merchandise is “suitable for use and actually, practically, and

commercially fit for use as a preparation for oral hygiene.” Id.

at 14. Relying on the CAFC’s decision in the test case, Plaintiff

states that the CAFC found that the merchandise meets the criteria.

See id. at 14.

For the reasons discussed herein, the Court finds that Heading

3306 cannot be excluded without further findings of fact.

6
The Court finds this argument meritless. Customs is
not barred from raising new arguments in this case since the
subject merchandise was not considered in the test case. Even if
Certs® Cool Mint Drops were reviewed in the test case, Customs
would still be permitted to raise new arguments subject to the
principle of stare decisis. See, e.g., DaimlerChrysler Corp. v.
United States, 442 F.3d 1313, 1321 (Fed. Cir. 2006) (stating that
“the typical res judicata rules do not apply in protest cases”
and that “collateral estoppel does not prevent an importer from
successive litigation over the classification of merchandise,
even when the subsequent importations involve the same issues of
fact and the same questions of law.”) (citations and internal
quotations omitted).
Court No. 06-00104 Page 18

Plaintiff’s proposed alternative, Heading 3306, provides for

“preparations for oral or dental hygiene, including denture

fixative pastes and powders; yarn used to clean between the teeth

(dental floss), in individual retail packages.” Note 3 to Chapter

33 provides that “Headings 3303 to 3307 apply, inter alia, to

products, whether or not mixed (other than aqueous distillates and

aqueous solutions of essential oils), suitable for use as goods of

these headings and put up in packings of a kind sold by retail for

such use.” (emphasis added).

Applying GRI 1 and thus looking to the terms of the Heading

and the relevant chapter notes, Certs® Cool Mint Drops are

classifiable under Heading 3306 if they are “suitable for use” as

an oral or dental hygiene product.7 “The words ‘suitable for use,’

as applied in the Customs law means ‘actually, practically, and

commercially fit’ for such use.” United States v. F. W. Myers &

Co., Inc., 60 C.C.P.A. 134, 135, 476 F.2d 1377, 1378 (citations

omitted). “Such suitability does not require that the merchandise

be chiefly used for the stated purpose, but it does require more

than ‘evidence of a casual, incidental, exceptional, or possible

use.’” See id.; see also W.R. Filbin & Co., Inc. v. United States,

14 CIT 590, 744 F. Supp. 289 (1990).

7
The Chapter Notes here instruct that this is a use
provision applicable to products suitable for use under Heading
3306. Therefore, here, there is special language or context
which excludes the application of ARI 1.
Court No. 06-00104 Page 19

The parties disagree as to whether Certs® Cool Mint Drops are

“actually, practically, and commercially fit” for use as an oral or

dental hygiene product. Plaintiff relies on the CAFC’s decision in

the test case to support its position that Certs® Cool Mint Drops

are “actually, practically, and commercially fit” for use as an

oral or dental hygiene product. Defendant maintains that “Certs

Cool Mint Drops contain massive amount of sugar which renders them

unsuitable for use for oral or dental hygiene.” The Court thus

finds that this is a second genuine dispute of material fact.

Without further factual finding, Heading 3306 cannot be excluded.

2) Explanatory Note To Heading 3306

Plaintiff alternatively argues that the subject merchandise is

an oral perfume within the meaning of the Explanatory Note to

Heading 3306 and is classifiable as a preparation for oral hygiene

by reason of the combination of the masking function with the

purging and neutralizing functions of the Retsyn®. See WLC’s Reply

at 19-20. Referring to expert testimony from the test case,

Plaintiff argues that “the masking function of the Certs products

serves to perfume the odor from the volatile sulfur compounds, and,

as such, the products are oral perfumes.” Id. at 20. Plaintiff

suggests that the CAFC relied on the Explanatory Note in reaching

its decision in the test case. See id.
Court No. 06-00104 Page 20

Customs argues that the Court should give little or no weight

to the Explanatory Note specifying “oral perfumes” because the term

is not a part of the Heading and the Explanatory Notes do not

provide any explanation as to what are “oral perfumes.” See Def.’s

Brief at 22-23. Alternatively, Customs argues that the meaning of

the term “oral perfumes” is a material fact in genuine dispute

which should be litigated. See id. at 23.

The Explanatory Notes are a non-binding interpretive guide.

See Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.

Cir. 1994) (stating that “Explanatory Notes . . . do not constitute

controlling legislative history but nonetheless are intended to

clarify the scope of HTSUS subheadings and to offer guidance in

interpreting subheadings”) (citing Lynteq, Inc. v. United States,

976 F.2d 693, 699 (Fed. Cir. 1992)). Although the Explanatory Note

to Heading 3306 explicitly encompasses oral perfumes, to be

classifiable under Heading 3306, the subject merchandise must be

“actually, practically, and commercially fit” for use as an oral or

dental hygiene product as per the terms of the Heading and the

Chapter Notes. Thus, as discussed supra, further findings of fact

are necessary.
Court No. 06-00104 Page 21

CONCLUSION

Based on the foregoing, further findings of fact are required

to determine if the subject merchandise (1) has the essential

character of sugar or Retsyn®; or (2) is “actually, practically,

and commercially fit” for use as an oral or dental hygiene product.

Therefore, the parties’ motions for summary judgment are denied.

/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: March 3, 2008
New York, New York