Slip Op. 05-88
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
WARNER-LAMBERT COMPANY, :
:
Plaintiff, :
:
v. : Court No. 02-00254
:
UNITED STATES, :
:
Defendant. :
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JUDGMENT
This matter comes before the Court pursuant to the decision of
the Court of Appeals for the Federal Circuit (“CAFC”) in Warner-
Lambert Co. v. United States (“Warner II”), 407 F.3d 1207 (Fed.
Cir. 2005), and the CAFC mandate dated July 5, 2005, reversing and
remanding the judgment of the Court in Warner-Lambert Co. v. United
States (“Warner I”), 28 CIT ___, 343 F. Supp. 2d 1315 (2004).
Heading 3306 of the Harmonized Tariff Schedule of the United
States (“HTSUS”) provides for “Preparations for oral or dental
hygiene . . . .” Id. at 1319. The Court considered evidence
submitted at trial, including a monograph entitled “Oral Health
Care Drug Products for Over-the-Counter Human Use; Establishment of
a Monograph,” 47 Fed. Reg. 22,760 (May 25, 1982), published by the
Food and Drug Administration (“FDA”), and consulted different
definitions for “preparations” and “hygiene” from medical and
Court No. 02-00254 Page 2
general dictionaries. See Warner I, 28 CIT at ___, 343 F. Supp. 2d
at 1319-21. Based on testimony and the evidence presented at
trial, the Court determined that the “term ‘oral’ pertains to the
mouth and ‘hygiene’ relates to the preservation of health.”1 Id.
at ___, 343 F. Supp. 2d at 1320. Accordingly, the Court held that
the terms “Preparations for oral or dental hygiene” of HTSUS
Heading 3306 includes “medicines made ready for the practice of
preserving the health of the mouth or oral cavity.” Id. The Court
stated that “a finding that the subject merchandise preserves the
health of the oral cavity simply because it perfumes the mouth . .
. would be anomalous to the FDA’s conclusion that to be considered
a preparation for oral hygiene, a product must treat or prevent
disease.” Id. at ___, 343 F. Supp. 2d at 1321. Consequently, the
Court held that the subject merchandise was classifiable under
HTSUS 2106.90.99, as a food preparation not elsewhere specified or
included, dutiable at a rate of 6.4 percent ad valorem. See id. at
___, 343 F. Supp. 2d at 1321-22.
Citing the Explanatory Notes to Chapter 33 of the HTSUS and
the examples in Heading 3306, the CAFC, however, determined that
“hygiene” does not require antimicrobial action. See Warner II,
1
In its opinion, the CAFC stated that “the trial court
concluded that, because ‘hygiene’ ‘related to the presence of
health,’ preparations for oral hygiene are ‘medicines made ready
for the practice of preserving the health of the mouth or oral
cavity.’” Warner II, 407 F.3d at 1210 (emphasis added).
Court No. 02-00254 Page 3
407 F.3d at 1210. The CAFC stated that the sources consulted by
this Court did not connect “health” with “hygiene” and that
“[h]ygiene might lead to ‘health’-but it is not ‘health’ itself.”
Id. The CAFC determined that the Explanatory Notes to Heading 3306
“expressly encompass ‘oral perfumes’ within the heading.” Id. The
CAFC further determined that the Bureau of Customs and Border
Protection of the Department of Homeland Security’s (“Customs”)
Headquarters Ruling Letter 963764, dated January 11, 2002, and the
proposed classification under HTSUS 2106.90.99 “overlooked some
characteristics of the imports and read the term ‘hygiene’ too
narrowly to remain consistent with the Explanatory Notes.” Id. at
1210-11. The CAFC held that Warner-Lambert Company’s Certs®
Powerful Mints are classifiable under Heading 33.06 of the HTSUS.
Accordingly, pursuant to said decision and mandate by the CAFC, it
is hereby
ORDERED that this Court’s Opinion and Judgment in Warner I,
holding that the subject merchandise should be classified and
reliquidated under 2106.90.99 of the HTSUS, are vacated; and it is
further
ORDERED that the subject merchandise shall be classified and
reliquidated by Customs under 3306.90.00 of the HTSUS, in
accordance with the CAFC’s decision and mandate; and it is further
Court No. 02-00254 Page 4
ORDERED that upon reliquidation, Customs shall refund all
excess duties with interest as provided by law.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: July 25, 2005
New York, New York