Slip Op. 07-134
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
DRYGEL, INC.,
Plaintiff,
C0urt N0.: 03-OO832
v.
UNITED STATES,
Defendant.
Held: Plaintiff’s motion for summary judgment denied. Summary
judgment is granted in favor of the Defendant.
Dated: Septemher 4, 2007
Neville Peters0n, LLP, (J0hn M. Peters0n, Curtis W. Knauss and
Maria E. Celis) for Drygel, Inc., Plaintiff.
Peter D. Keisler, Assistant Att0rney Genera1; Barbara S Williams,
Att0rney-in-Charge, Internati0nal Trade Field Office, Bruce N.
Stratvert, Civil Divisi0n, C0mmercial Litigati0n Branch, United
States Department of JustiCe, Defendant.
OPINION
TSOUCALAS, Seni0r Judge: Plaintiff Drygel, Inc. (“Plaintiff” or
“Drygel”) challenges the classificati0ncHfGel-A-MintC’MagikStrips®
(“MagikStrips®”) by the United States Bureau of Cust0ms and B0rder
Court No. 03-00832 Page 2
Protection1 (“Defendant” or “Customs”)under Subheading 2lO6.90.99
of the Harmonized Tariff Schedule of the United States (“HTSUS”)
covering “[f]ood preparations not elsewhere specified or
included[.]” Plaintiff maintains that the merchandise at issue is
properly classified under Suhheading 3306.90.00, 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. ”§§_Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (l986). A factual dispute is genuine if it might
affect the outcome of the suit under the governing law. See id.
1 The Bureau of Customs and Border Protection was renamed
United States Customs and Border Protection, effective March 3l,
2007. See Name Change From the Bureau of Immigrati0n and Customs
Enforcement to U.S. Immiqration and Customs Enforcement, and the
Bureau of Customs and Border Protection to U.S. Customs and
Border Protection, 72 Fed. Reg. 20,l31 (April 23, 2007).
Court No. 03-O0832 Page 3
Accordingly, the Court may not decide or try factual issues upon a
motion. for summary' judgment. See Phone-Mate, Inc. va United
States, 12 CIT 575, 577, 690 F. Supp. lO48, 1050 (l988). 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. §§§ USCIT R. 56; see also Celotex Corp. v.
CatI€tt, 477 U.S. 3l7, 322-23 (l986).
DISCUSSION
I. Backgr0und
MagikStrips® are thin, sugar»free breath strips that dissolve
when placed on the tongue, releasing their ingredients. §eg Mem.
Supp. Pl.’s Mot. Sum. J. (“Drygel’s Brief") at 1-2; Pl.'s Statement
Material Facts Not Dispute (“Dryge1’s Facts”) j 2. Magikstrips®
are manufactured_ in Japan and are packaged in small plastic
containers for individual sale at retail stores. §§g Drygel’s
Brief at 2; Drygel’s Facts jj l, 8; Def.’s Resp. Pl.'s Statement of
Material Facts Not Dispute (“Customs' Facts”) jj l, 8.
Plaintiff Drygel imported MagikStrips® under Subheading
Court No. 03-OO832 Page 4
3306.90.00, HTsUs.2 see Dryge1's FactS j 2; customs' FactS j 2.
Customs liquidated the subject merchandise under Subheading
2106 90.99, HTsUs.3 see nryge1'S Facts I 2; custom's Facts j 2.
Plaintiff timely filed protests claiming that the correct
classification. of the subject merchandise is 'under Subheading
3306.90.00, HTSUS, contesting Customs’ classification under
Subheading 2l06.90.99, HTSUS. §§§ Drygel’s Facts I 3; Customs’
Facts j 3. Plaintiff timely commenced the instant action. §g§
Drygel’s Facts j 3; Customs' Facts L 4. All liquidated damages,
charges and exactions with respect to the subject entries were paid
prior to the commencement of this action. §§§ Drygel’s Facts 1 5;
Customs’ Facts j 5.
2 needing 3306, HTSUs, provides=
“[p]reparation for oral or dental hygiene, including
denture fixative pastes and p0wders; yarn used to clean
between the teeth (dental floss), in individual retail
packages[.]”
Subheading 3306.90.00, provides: “[o]therI.]”
3 Heading 2106, HTsUs, provides:
“[f]ood preparations not elsewhere specified or
included[.]”
Subheading 2lO6.90, provides: “[o]ther[.]”
Subheading 2lO6.90.99, provides: “[o]ther[.]”
C0urt No. 03-G0832 Page 5
II. Parties' Contenti0ns
A. P1aintiff’s Contentions
Plaintiff maintains that Customs erred when it classified
MagikStrips® under Heading 2l06, HTSUS, because MagikStrips® are
specifically provided for in Heading 3306, HTSUS. §§e Drygel’s
Brief at 7-l3. According to Plaintiff, Customs failed to follow
the General Rules of Interpretation of the HTSUS (“GRIs”) and
failed to employ the common commercial meaning of the tariff terms
when classifying MagikStrips.® §§e Drygel’s Brief at 7-9.
Plaintiff submits that the term hygiene encompasses health and
cleanliness and concludes that “reduction of volatile compounds in
the mouth” and the “masking of malodor or perfuming of the mouth”
would promote oral hygiene. Drygel’s Brief at 8.
Plaintiff claims that menthol represents 5% of Magikstrips’®
dry weight with an error margin of 3%.4 gee Dryge1’s Brief at 8;
4 In its nwtion, Plaintiff initially claimed that
MagikStrips® contain menthol at the concentration of 15% of their
dry weight. §ee Drygel’s Brief at 2; Zaksenberg l Affirmation I 5.
Plaintiff further claimed that MagikStrips® contain citric acid,
which“promote[s] the production of saliva which acts to cleanse the
mouth through the reduction of the amount of bacteria.” Zaksenberg
1 _Affirmation. l 6. However, Customs’ laboratory' analysis of
MagikStrips® revealed that they consist of only 5% percent menthol
with an error margin of 3%. §ge Customs’ Brief, Exhibit 2. The
laboratory test did not detect any citric acid in MagikStrips.®
See id.
At the oral argument held before this court on July lO,
2007, Plaintiff changed its position arguing that menthol at the
(footnote continued)
C0urt No. 03-00832 Page 6
Affirmation Issac Zaksenberg Supp. Pl.'s Mot. Sum. J. (“Zaksenherg
l Affirmation”) l 5. According to Plaintiff, menthol at this
concentration.has antimicrobial properties and acts as a deodorizer
that perfumes the mouth. §g§ iQ; Plaintiff also claims that
MagikStrips® contain sucrose palmitate or sucrose esters of fatty
acid, which also has antimicrobial properties. §ge Pl.’s Resp.
Def.'s Rule 56 Statement l l; Second Affirmation Issac Zaksenberg
Supp. Pl.’s Mot. Sum. J. (“Zaksenberg ll Affirmation”) “ 5.
In support of its claim, Plaintiff cites the patent for a
similar competing product named Listerine® “fast dissolving orally
consumable films”(“Listerine® Patent”). §§e_Drygel’s Brief at 8-9,
Exhibit C. The Listerine® Patent provides, inter alia, that
Listerine® “achieves its antimicrobial effect through a combination
of essential oils that penetrate and kill the ndcroorganisms.”
Drygel’s Brief, Exhibit C. Plaintiff notes that menthol is one of
the essential oils listed in the Listerine® Patent. §§e Drygel’s
Brief at 8. Arguing that MagikStrips® contain a high concentration
of menthol, Plaintiff concludes that MagikStrips® have
antimicrobial properties and promote oral hygiene. §ee iQ4
Plaintiff also relies on several websites to support its
concentration of 5%, plus or minus 3%, was sufficient to impart
antimicrobial properties and to perfume the mouth. Also at the
oral argument, Plaintiff argued that MagikStrips® are classifiable
under Heading 3306 solely based on their menthol content. Notably,
Plaintiff did not dispute the results of Customs' laboratory test.
Court No. 03~00832 Page 7
proposition that MagikStrips'® ingredients, menthol and sucrose
palmitate or sucrose esters of fatty acid, have antimicrobial
properties. §eg Drygel’s Brief at 9, Exhibits D, E; Pl.'s Resp.
Def.'s Mot. Sum. J. (“Drygel’s Response”) at 4; Zaksenberg ll
Affirmation l 5.
ln addition, Plaintiff contends that the Explanatory Notes
(“ENs”) specifying mouth washes and oral perfumes provide strong
support for classifying MagikStrips® under Heading 3306, HTSUS.
§ee Drygel’s Brief at 9~l0. Plaintiff states that MagikStrips®
perform the same function as a traditional mouth wash by reducing
the number of bacteria and volatile compounds. §§e id$ at 10.
Plaintiff also states that, by stimulating saliva production in the
mouth, MagikStrips® act as an effective oral perfume that masks
malodor and imparts mint fragrance. §ge id; Plaintiff thus
concludes that MagikStrips® are an effective mouth wash and oral
perfume as contemplated in the ENs for Heading 3306, and argues
that MagikStrips® should be classified under that heading. See id.
at 3, lO-ll.
Plaintiff argues that the United States Court of Appeals for
the Federal Circuit (“CAFC”) would, pursuant to its decision in
warner-Lambert Co. v. United States (“Warner~Lambert CAFC”), 407
F.ad 1207 (Fed. cir. 2005), classify Magikstrips® under Heading
3306, HTSUS. See Drygel’s Brief at l1. Plaintiff contends that
Court No. 03-00832 Page 8
Customs, when citing to Warner-Lambert CAFC for the proposition
that Heading 3306 requires “breakdown and absorption of unwanted
substances in. the mouth” and “a cleansing effectf by' purging
activity,” mischaracterizes the CAFC’s holding. Drygel’s Response
at 1-4. According to Plaintiff, Warner Lambert CAFC stands for the
proposition that a product may be properly classified.under Heading
3306 if: (1) it is an oral perfume; (2) it breaks down or removes
volatile compounds in the mouth; or (3) it mechanically purges
odor-causing compound in the mouth. §§§ Drygel’s Brief at 12.
Plaintiff argues that MagikStrips@ meet the criteria set forth in
warner-Lambert CAFC because menthol and sucrose palmitate remove
bacteria and perfume the mouth. §ee Drygel’s Brief at 12-l3;
Drygel’s Response at 4.
ln response to Customs' assertion, discussed _sup;a, that
Heading 3306 is a “use provision” requiring determination of the
principal use of the “class or kind” of goods to which MagikStrips®
belong, Plaintiff argues that Customs' analysis is flawed due to
its erroneous interpretation_<3f warner-Lambert CAFC. Drygel’s
Response at 8-9. Plaintiff contends that Customs' “class or kind”
analysis is too narrow and contrary to the holding in warner-
Lambert CAFC. See id.
With respect to classification of MagikStrips® under Heading
2l06, HTSUB, as urged by Customs, Plaintiff responds that the terms
Court No. 03-00832 Page 9
of the Heading, when read in accordance with GRl l, excludes
products that are covered 'under other' headings in the tariff
schedule. gee Drygel’s Brief at 13-l4. Since Heading 2106 covers
“food preparations not elsewhere specified or included,” Plaintiff
argues that the Heading specifically excludes MagikStrips® which
are classifiable under Heading 3306. §ee idL at l4. ln the event
that MagikStrips® are classifiable under both Headings 2106 and
3306, Plaintiff argues that, pursuant to GRl 3, Heading 3306 is the
proper classification because it provides a more specific
description in comparison to Heading 2l06, a catch-all provision.
See id.
Based on the foregoing arguments, Plaintiff seeks a judgment
in its favor and an order directing the Port Director of Customs at
the Port of Entry to reliquidate the subject entries under HTSUS
subheading 3306.90.00, duty free, and refunding to Plaintiff all
excess duties, plus interest as provided by law.
B. Cust0ms’ Contentions
Customs contends that MagikStrips® are properly classified
under Subheading 2lO6.90.99, HTSUS, the provision_ for “[f]ood
preparations not elsewhere specified or included[.]” §ee Def.'s
Mem. Supp. Mot. Summ. J. and Opp. Pl.’s Mot. Summ. J.(“Customs’
Brief”) at 2.
Court No. 03-00832 Page 10
Customs argues that the applicable portion of Heading 3306,
“preparation for oral and dental hygiene,” is controlled by use,
and thus, is a “use provision.” ld; at 5-6. Accordingly, Customs
states that the terms of the heading must read to mean “preparation
for use in oral and dental hygiene.” lee at 6. ln addition,
Customs argues that GRl 1 must be applied together with rule l(a)
of the Additional U.S. Rules of lnterpretation5 (“ARls”), which
govern tariff classification of imported merchandise under “use
provisions.” §ee id; According to Customs, proper application of
ARl 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.” lee
at 6-7. Customs explains that, pursuant to United States v.
Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377 (1976), the
relevant factors to consider in making such determinations are:
(1) the general physical characteristics of the merchandise, (2)
the expectation of the ultimate purchasers, (3) the channels, class
or kind of trade in which the merchandise moves, (4) the
environment of the sale, (5) the use, if any, in the same manner as
ARl l(a), provides,:
[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[.] 2
Court No. 03-00832 . Page 11
merchandise which defines the class, (6) the economic practicality
of so using the import, and (7) the recognition in the trade of
this use. §ee gee at 7. Based upon an analysis of these factors,
Customs concludes that MagikStrips® are in the same “class or kind”
as chewing gums and mints rather than preparations for oral and
dental hygiene, and as such, Customs argues that MagikStrips® are
not classifiable under Heading 3306. See id. at l8.
According to Customs, warner-Lambert CAFC did not address the
“class or kind” of goods classifiable under Heading 3306, HTSUS,
but held that “goods classified in that heading as ‘preparations
for oral or dental hygiene’ must be able to achieve the breakdown
and absorption of unwanted substances in the mouth and provide a
cleansing effect by purging activity[.]” ld. at 7. Customs claims
that MagikStrips® do not satisfy the criteria set forth in warner-
Lambert CAFC “inasmuch as they do not have any ingredients that are
capable of breakdown, absorption, or facilitation of the purging
activity” and concludes that MagikStrips® cannot not be classified
under‘ HTSUS Heading 3306 as “preparations for oral or dental
hygiene.” ld.
ln support of its position, Customs argues that Plaintiff
relies on unreliable websites in. an attempt to establish. the
antimicrobial properties of nenthol. §ee id; at l0. Customs
further argues that proof put forth by Plaintiff to establish the
alleged antimicrobial properties of sucrose palmitate or sucrose
Court No. 03-00832 Page 12
esters of fatty acid merely states that the ingredient may be used
as “bacteriocidal agents for canned coffee” and does not support
the conclusion that MagikStrips® have antimicrobial properties.
Def.'s Reply' Br. Supp. Mot. Summ. J. and Opp'n Pl.’s Resp.
(“Customs’ Reply”) at 2. while conceding that menthol in
combination with other ingredients may be effective as an
antimicrobial agent, Customs contends that Plaintiff failed to put
forth any evidence that menthol by itself has antimicrobial
properties. _ee Customs’ Brief at 11. Customs counters that
menthol is best known_ as a mild topical anesthetic and mint
flavoring. _ee Customs' Brief at 11. Customs notes that even
Plaintiff's own documents confirm that menthol is “only used as
flavor” and sucrose palmitate is used as an “emulsifier.” Customs’
Brief at ll, Exhibit 3; Customs’ Reply at 3.
Moreover, Customs maintains that Plaintiff's reliance on
Warner-Lambert CAFC for the proposition_ that MagikStrips® are
classifiable under Heading 3306 as a mouth wash or oral perfume is
misplaced. _ee Customs' Brief at 8-9.j Customs suggests that,
since the terms “mouth washes” and “oral perfumes” appear in the
ENs only and are not expressly provided for in either Heading 3306
or the subheadings thereto, they are not legally binding. §ee lee
at 9. Customs concludes that MagikStrips® therefore do not satisfy
the criteria set forth in Warner-Lambert CAFC and argues that they
cannot be classified under Heading 3306, HTSUS, as “preparations
Court No. 03-00832 Page 13
for oral or dental hygiene.” See id. at 7. lnstead, Customs urges
the Court to find that MagikStrips® are properly classified under
Heading 2106, HTSUS. Se€ id. at 18-19.
lII. Discussion
A. Introduction
The question presented in the instant matter is whether,
within the meaning of the tariff provisions, the imported
merchandise is dutiable as “food preparation not elsewhere
specified or included” under Heading 2106 as classified by Customs,
or as “preparation for oral or dental hygiene” under Heading 3306
as claimed by P1aintiff.
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 ClT 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, lnc. v. United States, 24 F.3d 1390, 1391 (Fed. Cir.
1994}. Second, whether the imported merchandise falls within the
scope of such term, as properly construed, must be determined. §ee
ldL The first step is a question of law and the second is a
question of fact. See id.; see also Universa1 E1ecs., lnc. v.
United States, 112 F.3d 488, 491 (Fed. Cir. 1997). Where, as in
Court No. 03-0O832 Page 14
the instant case, there is no disputed material issue of fact to be
resolved by trial, disposition by summary judgment is appropriate.
Pursuant to 28 U.S.C. § 2639(a)(1) (1994), Customs’
classification is presumed correct and the party challenging the
classification bears the burden of proving otherwise. §ee
Universal Elecs., 112 F.3d at 491. This presumption, however,
applies only to Customs' factual findings, such as whether the
subject merchandise falls within the scope of the tariff provision,
and not to questions of law, such as Customs' interpretation of a
particular tariff provision. §ee Sabritas, 22 ClT at 61, 998 F.
Supp. at l126; see also Universal E1ecs., 112 F.3d at 492; Goodman
Mfq., L.P. v. United States, 69 F.3d 505, 508 (Fed. Cir. 1995).
When there are no material issues of fact in_ dispute, as is
admitted by both parties in the present case, the statutory
presumption of correctness is irrelevant. Goodman Mfg., 69 F.3d at
508.
Pursuant to 28 U.S.C. § 2640(a) (1994), Customs'
classification decision is subject to de novo review based upon the
record before the Court. Accordingly, the Court must determine
“whether the government’s classification is correct, both
independently and in comparison with the importer’s alternative.”
Jarvis Clark Co. v. United States, 733 F.2d 873, 878 (Fed. Cir.
l984).
Court No. 03-00832 Page 15
B. Classification Under Heading 3306
Applied_ in_ numerical order, the proper classification of
merchandise entering the United States is directed by the GRls and
the ARls. See N. Am. Processing Co. v. United States, 236 F.3d
695, 698 (Fed. Cir. 200l); Orlando Food Corp. v. United States, 140
F.3d l437, l439 (Fed. Cir. l998). GRl l states that
“classification shall be determined according to the terms of the
headings and any relative section or chapter notes.” Gen. R.
lnterp. 1, HTSUS; see also Sabritas, 22 ClT at 62, 998 F. Supp. at
1126-27. Only after comparing headings, if a question persists,
may the Court look to the subheadings for the correct
classification. _ee Orlando Food, 140 F.3d at l440.
when a tariff term is not clearly defined in either the HTSUS
or its legislative history, the correct meaning of the term is
generally resolved_ by ascertaining its common and commercial
meaning. See W.Y. Moberlv, lnc. v. United States, 924 F.2d 232,
235 (Fed. Cir. l99l). ln order to determine the common meaning of
a tariff term, the court may rely on its own understanding of the
term, as well as consult dictionaries, lexicons and scientific
authorities. See Brookside Veneers, Ltd. v. United States, 847
F.2d 786, 789 (Fed. Cir. l988), Cert. denied, 488 U.S. 943 (l983).
Heading 3306, HTSUS, provides for “preparations for oral or
dental hygiene[.}” The parties do not dispute that these terms are
not specifically defined in the HTSUS or in relevant legislative
Court No. O3»O0832 Page 16
historyx §ee Drygel’s Brief at 8; Customs’ Brief at 5. This Court
and the CAFC have previously considered the tariff terms
“preparations for oral or dental hygiene.” ln Warner-Lambert Co.
v; United States (“Warner-Lambert ClT”), 28 ClT___, 343 F. Supp. 2d
l3l5, (2004), the Court of lnternational Trade (“ClT”) considered
classification of Certs® Powerful Mints under Heading 3306 as
“preparation for oral or dental hygiene.” warner-Lambert ClT, 28
ClT at mM, 343 F. Supp. 2d at 1319-21. The ClT determined that:
(1) the term “preparation” is defined as “a medicine made ready for
use,” see Dorland’s lllustrated Medical Dictionary 1351 (27th ed.
l988); Stedman's Medical Dictionary 1215 (l2th ed. l96l); Ihe
Macmillan Medical Dictionarv 348 (2d ed. l953); (2) the term “oral”
pertains to the mouth; and (3) the term “hygiene” relates to the
preservation of health, eee Webster’s ll New Riverside Universitv
Dictionary 826 (1988). See warner-Lambert ClT, 28 ClT at __, 343
F. Supp. 2d at 1319-20. The ClT thus concluded that “preparations
for oral hygiene” are “medicines made ready for the practice of
preserving the health of the mouth or oral cavity;” warner-Lambert
ClT, 28 ClT at __, 343 F. Supp. 2d at 1320. Relying on a monogram
issued by the United States Food and Drug Administration, 47 Fed.
Reg. 22,760 (May 25, l982), stating that “[o]nly antimicrobial
measures, such as using a germ killing mouth wash ‘intended to
treat or prevent disease’ aide in the preservation of oral health,”
the ClT found that a product must have antimicrobial properties to
Court No. 03-0O832 Page 17
be properly classified under Heading 3306. Warner-Lambert ClT, 28
ClT at __, 343 F. Supp. 2d at l320. Finding that Certs® Powerful
Mints do not have such antimicrobial properties, the ClT held that
they are not properly' classified under Heading 3306, HTSUS.
Warner-Lambert ClT, 28 ClT at __, 343 F. Supp. 2d at l320.
The CAFC overturned Warner-Lambert ClT and held that Certs®
Powerful Mints do fall under Heading 3306. _ee warner-Lambert
QeEQ,407 F.3d 1207 (Fed. Cir. 2005). The CAFC concluded that the
term “hygiene” in Heading 3306 does not require an antimicrobial
agent and determined that the ClT improperly connected “health”
with “hygiene.” See Warner-Lambert CAFC,407 F.3d at l2lO. ln
reaching that conclusion, the CAFC relied on the Chapter Notes
stating that “the products of Heading 3306 need. not contain
subsidiary pharmaceutical or disinfectant constituents nor be held
out as having therapeutic or prophylactic value.” lQe_ ln
addition, the CAFC noted that the ENs specify mouth washes and oral
perfumes. lde However, in denying Customs' alternative
classification under Heading 2106 and finding that Certs® Powerful
Mints are properly classified under Heading 3306, the CAFC
specifically referred to and relied on the cleansing action of
Certs® Powerful Mints. lde
Warner-Lambert CAFC thus instructs that the term “hygiene”
requires a cleansing action such as the “breakdown and absorption
function” and “cleaning effect of the purging activity” of Certs®
Court No. 03-00832 Page 18
Powerful Mints. Because MagikStrips® do not have the requisite
cleansing properties as set forth in warner-Lambert CAFC, they are
not properly classifiable under Heading 3306. The ENs specify oral
perfumes and mouth washes, but the ENs are non-binding interpretive
guide. See Mita CoDVstar Am, v. United States, 21 F.3d l079, l082
(Fed. Cir. 1994).
Although_Heading 3306 does not require an antimicrobial agent,
the parties agree that a product containing an antimicrobial agent
capable of reducing the number of bacteria in the mouth is properly
classifiable under Heading 3306. §ee Drygel’s Brief at 7-9;
Customs’ Brief at l2. Plaintiff, however, has failed to establish
that MagikStrips® have any antimicrobial properties. The bare
allegation contained in a self-serving affidavit submitted by the
President of Drygel stating that MagikStrips® reduce the number of
bacteria in the mouth is unconvincing. §ee Zaksenberg l
Affirmation l 5; Zaksenberg ll Affirmation § 5.
Moreover, Plaintiff's reliance on the Listerine® Patent is
misplaced. The Listerine® Patent provides, inter alia, that the
product “achieves its antimicrobial effect through a combination of
essential oils that penetrate and kill the microorganisms.”
(emphasis added). Drygel’s Brief, Exhibit C. The fact that
menthol is one of several ingredients that work in combination to
impart its antimicrobial effect does not support the contention
that menthol by itself would have the same effect.
Court No. 03-O0832 Page 19
The websites to which Plaintiff cites contain only conclusory
statements and are devoid of factual support for the contention
that MagikStrips’® ingredients at their particular concentrations
have antimicrobial properties. lndeed, it appears that Plaintiff's
clain1of MagikStrips’® antimicrobial properties is an_afterthought.
Even Plaintiff's own internal documents, packaging and marketing
materials make no mention of MagikStrips’® alleged antimicrobial
properties. §ee Drygel’s Brief, Exhibits A, B; Customs' Brief,
Exhibits 3, 4, 5, 11. Those materials confirm that menthol is
“only used as flavor” and that sucrose palmitate or sucrose esters
of fatty acid is used as an emulsifier. lde
Based on the foregoing, MagikStrips® are not specifically
provided in Heading 3306. Accordingly, it is unnecessary for the
court to determine whether the term “preparation for oral or dental
hygiene” in Heading 3306 is a “use provision” or to undertake an
analysis of Heading 3306 as a “use provision” as argued by Customs.
C. C1assification Under Heading 2106
Heading 2l06, HTSUS, covers “[f]ood.preparations not elsewhere
specified or included[.]” The term “preparation” is defined as “a
substance specially prepared, or made up for its appropriate use or
application, e.g. as food or medicine, or in the arts or sciences.”
12 The Oxford Enqlish DictionarV 374 (2d. ed. l989). The term
“food” is defined as “[w]hat is taken into the system to maintain
life and_ growth, and. to supply‘ the waste of tissue; aliment,
Court No. 03-00832 Page 20
nourishment, provisions, victuals.” 6 The Oxford English
Dictionary 8 (2d. ed. 1989). The ENs for this Heading clarify that
“this heading covers: (1) preparations for . . . human
consumption.” Therefore, “food preparations” are substances
prepared for human consumption.
Customs correctly determined that MagikStrips® are properly
classified under Heading 2106, HTSUS. They are “food preparations”
and not elsewhere specified or included. This determination is
further supported by the ENs, which state that this Heading
includes, inter alia, “[e]dible tablets with a basis of natural or
artificial perfumes (e.g. vanillin)” and “[s]weets, gums and the
like (for diabetics, in particular) containing synthetic sweetening
agents (e.g., sorbitol), instead of sugar[.]” MagikStrips® are
consumed for their sweet taste and mint flavor much like mints,
sweets or gums. §ee Zaksenberg l Affirmation ll 5, 7. Plaintiff
suggests that MagikStrips® are not edible because they' “were
designed and manufactured to dissolve very quickly in the mouth[.]”
Zaksenberg l Affirmation l lO. Regardless of how quickly
MagikStrips® dissolve in the mouth, they are nevertheless ingested
and consumed.
Plaintiff also argues that Heading 2106 specifically excludes
products specified under other headings and claims that
MagikStrips® are specifically excluded because they are
classifiable under Heading 3306. See Drygel’s Brief at 13-l4.
Court No. 03-00832 Page 21
This court rejects Plaintiff's argument having already determined
that MagikStrips® are not specifically provided for under Heading
3306, HTSUS. Thus, consistent with the common commercial meaning
of the term “food preparation” and based on the ENs, MagikStrips®
are properly classifiable under Heading 2106.
A review of the subheadings of Heading 2106 indicate that no
other subheading covers the merchandise more specifically than the
“catch-all” provision under Subheading 2l06.90.99 covering
“[o]ther[.]” See EM lndus. v. United States, 22 ClT 156, 165, 999
F. Supp. 1473, 1480 (l998); Orlando Food, 140 F.3d at 1442. Based
on. the foregoing, the court concludes that Customs correctly
classified the subject Herchandise under Subheading 2l06.90.99,
HTSUS.
Conclusion
For the foregoing reasons, the Court holds that Customs
correctly' classified_ MagikStrips® under subheading 2106.90.99,
HTSUS. Accordingly, Plaintiff's motion for summary judgment is
deniedl Summary judgment is granted in favor of the United States.
/s/ Nicholas Tsoucalas
NlCHOLAS TSOUCALAS
SENlOR JUDGE
Dated: September 4, 2007
New York, NY
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
DRYcnL, 1Nc.,
P1aintiff,
court N@.= 03-00332
V.
UNlTED STATES,
Defendant.
JUDGMENT
This case having been duly submitted for decision and the
Court, after due deliberation, having rendered a decision herein;
now, in accordance with said decision, it is hereby
0RDERED, ADJUDGED and DECREED that the United States Bureau of
Customs and Border Protection correctly classified the subject
merchandise under Subheading 2106.90.99 of the Harmonized Tariff
Schedule of the United States; and it is further
ORDERED that the United States' cross-motion_ for summary
judgment pursuant to USClT R. 56 is granted; and it is further
ORDERED.that Drygel’s motion for summary judgment pursuant to
USClT R. 56 is denied; and it is further
ORDERED that this case is dismissed.
Dated: September 4, 2007
New York, New York
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE