Slip Op. 04-56
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
WARNER-LAMBERT COMPANY, :
:
Plaintiff, :
:
: Court No. 02-00254
:
UNITED STATES, :
:
Defendant. :
________________________________________:
Plaintiff, Warner-Lambert Company (“WLC”), challenges the
classification of its merchandise by the Bureau of Customs and
Border Protection of the Department of Homeland Security
(“Customs”) under Harmonized Tariff Schedule of the United States
(“HTSUS”), subheading 1704.90.35, 19 U.S.C. § 1202 (2000), as a
sugar confectionery with a duty rate of 5.6 percent ad valorem.
WLC claims that the imported merchandise is a sugar-free product
that should be classified under HTSUS subheading 3306.90.00, which
provides for preparations for oral or dental hygiene that are free
of duty. Customs counterclaims that if the Court finds, as a
matter of fact, that the merchandise at issue is sugar-free, then
proper classification of the merchandise is under HTSUS subheading
2106.90.99, which provides for food preparations not elsewhere
specified or included, dutiable at the rate of 6.4 percent ad
valorem.
Held: Pursuant to the findings of facts and conclusions of
law, judgment is entered in favor of Customs on its counterclaim
ordering classification of the subject merchandise under HTSUS
subheading 2106.90.99 and reliquidation of the subject entries
accordingly.
[Judgment is entered in favor of Customs on its counterclaim.]
June 1, 2004
Rode & Qualey (Patrick D. Gill) for Warner-Lambert Company,
plaintiff.
Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney-in-Charge, International Trade Field Office,
Court No. 02-00254 Page 2
Civil Division, Commercial Litigation Branch, United States
Department of Justice (Bruce N. Stratvert); of counsel: Chi S.
Choy, Office of the Assistant Chief Counsel for International Trade
Litigation, Bureau of Customs and Border Protection of the
Department of Homeland Security, for the United States, defendant.
OPINION
TSOUCALAS, Senior Judge: Plaintiff, Warner-Lambert Company
(“WLC”), challenges the classification of its merchandise by the
Bureau of Customs and Border Protection of the Department of
Homeland Security (“Customs”) under Harmonized Tariff Schedule of
the United States (“HTSUS”), subheading 1704.90.35, 19 U.S.C. §
1202 (2000), as a sugar confectionary with a duty rate of 5.6
percent ad valorem. WLC claims that the imported merchandise is a
sugar-free product that should be classified under HTSUS subheading
3306.90.00, which provides for preparations for oral or dental
hygiene that are free of duty. Customs counterclaims that if the
Court finds, as a matter of fact, that the merchandise at issue is
sugar-free, then proper classification of the merchandise is under
HTSUS subheading 2106.90.99, which provides for food preparations
not elsewhere specified or included, dutiable at the rate of 6.4
percent ad valorem.
DISCUSSION
WLC, a wholly-owned subsidiary of Pfizer, Inc., see Disclosure
of Corporate Affiliations & Financial Interest, and importer of
Certs® Powerful Mints (“subject merchandise”), filed a timely
Court No. 02-00254 Page 3
protest pursuant to 19 U.S.C. § 1514 (2000) challenging
classification of its merchandise. In its complaint, WLC claims
that: (1) the principal active ingredient in the subject
merchandise is Retsyn®, a registered trade name of plaintiff; and
(2) Retsyn®, along with the other breath freshening ingredients,
promotes oral and dental hygiene. See Compl. ¶ 11. A bench trial
was held on March 30 and 31, 2004. In accordance with USCIT R.
52(a), the Court enters judgment in favor of defendant pursuant to
the following findings of fact and conclusions of law.
I. Findings of Fact
1. The merchandise at issue is Certs® Powerful Mints.
2. The subject merchandise was described on plaintiff’s
invoices as Powerful Mints Spearmint, Certs® Peppermint Standard,
and Certs® Spearmint Standard but all constitute Certs® Powerful
Mints.
3. The subject merchandise was classified under HTSUS
subheading 1704.90.35 which reads:
1704 Sugar confectionery (including white
chocolate), not containing cocoa:
1704.10.00 Chewing gum, whether or not sugar-
coated . . . . . . . kg . . . . . 4%
1704.90 Other:
Confections or sweetmeats ready
for consumption:
1704.90.10 Candied nuts. . .kg. . .4.5%
Court No. 02-00254 Page 4
Other:
1704.90.25 Cough drops. .kg. .Free
1704.90.35 Other. . . . . . . 5.6%
4. Certs® Powerful Mints do not contain sugar.
Customs counterclaims that if the Court finds that Certs®
Powerful Mints do not contain sugar, then proper classification for
the subject merchandise is under HTSUS subheading 2106.90.99, which
provides for a duty rate of 6.4 percent ad valorem for “Food
preparations not elsewhere specified or included: Other: Other:
Other: Other: Other.”
6. The imported product is marketed and advertised and
consumers perceive Certs® Powerful Mints as a breath freshening
agent which combats oral malodor.
7. Oral malodor or halitosis is commonly referred to as
bad breath.
8. The principle active ingredient in Certs® Powerful
Mints is Retsyn®, a registered trade name of plaintiff.
9. Retsyn® contains copper gluconate and partially
hydrogenated cottonseed oil and flavoring agents in the form of
peppermint and/or spearmint.
10. The peppermint or spearmint flavoring agents in the
imported product masks oral malodor.
11. In 1982, the United States Food and Drug Administration
(“FDA”) published a monogram in the Federal Register, see Pl.’s Ex.
Court No. 02-00254 Page 5
2, stating that the dead-space gases of a malodorous mouth consist
mainly of minute traces of highly odoriferous volatile sulfur
compounds, the most common and abundant of which are hydrogen
sulfide and methyl mercaptan.
12. The same monogram explained that oral malodor can be
controlled by masking, purging, neutralizing or bacterial
inhibition.
13. Copper gluconate in Retsyn® reacts with the volatile
sulfur compounds, hydrogen sulfide and methyl mercaptan to produce
non-odorous materials in the oral cavity (neutralizing).
14. Micronized fat in the form of partially hydrogenated
cottonseed oil absorbs sulfides and methyl mercaptan which are the
main contributors to oral malodor.
15. Consumption of Certs® Powerful Mints increases salivation
in the oral cavity thereby purging bacteria located in the oral
cavity.
16. The subject merchandise contains an amount of copper
gluconate and partially hydrogenated cottonseed oil sufficient to
neutralize the quantities of volatile sulfur compounds normally
present in the mouth.
17. WLC claims that the Certs® Powerful Mints are properly
classifiable under HTSUS 3306.90.00 which reads:
3306 Preparations for oral or dental
hygiene, including denture fixative
pastes and powders; yarn used to
Court No. 02-00254 Page 6
clean between the teeth (dental
floss), in individual retail
packages:
3306.10.00 Dentifrices . . . X . . . Free
3306.20.00 Yarn used to clean between the
teeth (dental floss). kg. Free
3306.90.00 Other . . . . . . kg . . . Free
18. Certs® Powerful Mints contain sorbitol, natural flavoring
(specifically Retsyn®), maltodextrin, aspartame, magnesium stearate
and Blue 1. See Pl.’s Exs. 3, 4 (Interrog. 4).
19. Plaintiff’s expert witness testified that the subject
merchandise is a non-medicated, cosmetic product, Tr. 86, that has
not received the American Dental Association’s “Seal of
Acceptance.” Tr. 107.
20. The trial and pleadings lack any claim that Certs®
Powerful Mints are used for therapeutic or prophylactic purposes or
that they are designed to treat any specific disease.
21. Plaintiff’s expert, Dr. Jack W. Vincent, testified that
halitosis is commonly caused by “bacteria metabolizing protein and
amino acid and emitting a highly foul smelling compound such as
hydrogen sulfide, methyl mercaptan and dimethyl sulfide, among
others. There is also an extrinsic source of oral malodor that
most generally comes from foods that are eaten; commonly onions,
garlic, . . . can leave an odor on the breath.” Tr. 19.
Court No. 02-00254 Page 7
22. Dr. Vincent also testified that the “most effective way
to control malodor is through very effective oral hygiene
procedures [such as] brushing thoroughly with a dentifrice, using
dental floss or another device to clean in between the teeth and
also some mechanism of controlling the growth of bacteria on the
tongue, most commonly done by tongue scraping. These are
activities that are ordinarily done in the home because it requires
facilities in which to do it. There are other methods that are
used that are somewhat more portable in nature that can be used
during the day. Mouth rinsing is a bit more portable, but still it
[is] rather cumbersome . . . . [T]here are [also] portable
fresheners such as Certs products that can be used on demand, very
discretely and provide the breath freshening capability for an
individual at any time.” Tr. 20-21.
23. Defendant’s expert, Dr. Andrew Spielman, testified that
“Certs . . . based on [the] evaluation of the scientific evidence
[] do not promote oral hygiene . . . [b]ecause they do not provide
mechanical removal of bacteria. They provide masking effect. They
may provide some inhibition, but not to the extent that [other]
oral hygiene products [provide].” Tr. 189-191.
24. Dr. Spielman also testified that “an oral perfume that
contained anti-bacterial agent[s], would [] fit within the category
of a preparation for oral or dental hygiene.” Tr. 191.
Court No. 02-00254 Page 8
II. Conclusions of Law
The Court has jurisdiction over this dispute pursuant to 28
U.S.C. § 1581(a) (2000). 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. Second, whether the imported merchandise falls within
the scope of such term, as properly construed, must be determined.
See Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1391
(Fed. Cir. 1994). 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).
Pursuant to 28 U.S.C. § 2639(a)(1) (2000), Customs’ classification
is presumed correct and the party challenging the classification
bears the burden of proving otherwise. See 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. See Sabritas, 22 CIT at 61, 998 F. Supp. at 1126; see
also Universal Elecs., 112 F.3d at 491; Goodman Mfg., L.P. v.
United States, 69 F.3d 505, 508 (Fed. Cir. 1995). To determine
whether the party challenging Customs’ classification has overcome
Court No. 02-00254 Page 9
the statutory presumption of correctness, this Court must consider
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.
1984).
A. Classification Under Heading 1704
As a preliminary matter, this Court finds that classification
of Certs® Powerful Mints under HTSUS subheading 1704.90.35 is
improper because the subject merchandise does not contain sugar.
Therefore, the issue remains whether classification of Certs®
Powerful Mints under Heading 3306 covering preparations for oral
hygiene is proper.
B. Classification Under Heading 3306
The meaning of a tariff term is a question of law to be
decided by the court. See Hasbro Indus., Inc. v. United States,
879 F.2d. 838, 840 (Fed. Cir. 1989). 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. Moberly, Inc. v.
United States, 924 F.2d 232, 235 (Fed. Cir. 1991). In 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
Court No. 02-00254 Page 10
Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed. Cir. 1988),
cert. denied, 488 U.S. 943 (1988).
HTSUS heading 3306 provides for preparations for oral or
dental hygiene.1 The definition of the phrase “preparations for
oral hygiene” is not, per se, set forth in any standard or
technical lexicon. However, the term “preparation” is defined as
“1. the act or process of making ready[;] 2. a medicine made ready
for use[; and] 3. an anatomic or pathologic specimen made ready and
preserved for study.” Dorland’s Illustrated Medical Dictionary
1351 (27th ed. 1988); see Stedman’s Medical Dictionary 1215 (12th
ed. 1961); The Macmillan Medical Dictionary 348 (2d ed. 1953).
Plaintiff and defendant’s experts agree that the term “oral”
pertains to the mouth and “hygiene” relates to the preservation of
health. Tr. 104, 110, 190-191; see Webster’s II New Riverside
University Dictionary 826 (1988). “Preparations for oral hygiene,”
therefore, are medicines made ready for the practice of preserving
the health of the mouth or oral cavity. In order for the subject
merchandise to fit within this description, it must satisfy the
terms of the heading. See Sabritas, 22 CIT at 62, 998 F. Supp. at
1126-27.
1
The evidence presented in plaintiff’s case does not
address the issue of whether Certs® Powerful Mints combat a
condition pertaining to dental hygiene. Rather, plaintiff’s case
is limited to the claim that the subject product combats oral
malodor, which WLC claims to be a condition of oral hygiene.
Court No. 02-00254 Page 11
Trial testimony confirmed 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 commonly cause bad breath. Tr. 19-22.
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). Tr. 32-33. These three measures, however, are not
specifically referred to in the FDA’s monogram as “hygienic
measures.” Only antimicrobial measures, such as using a germ
killing mouthwash “intended to treat or prevent disease,” aide in
the preservation of oral health, which is the thrust of the FDA’s
monogram. See Pl.’s Ex. 2, (47 Fed. Reg. at 22,844). Although the
monogram recognizes that certain cosmetic products can combat oral
malodor, use of such products must reach an antimicrobial result to
be considered a preparation for oral or dental hygiene. See id.
(stating that “articles that are cosmetic, but which are also
intended to treat or prevent disease” can be considered drugs and
that “[b]ecause oral malodor is caused mainly by gram-negative
anaerobes, only antimicrobial ingredients known to be effective
against the causative organism are effective in suppressing the
Court No. 02-00254 Page 12
malodor”) (emphasis added).
Neither testimony nor evidence presented establishes that
Certs® Powerful Mints effect the heath of the oral cavity.
Accordingly, the subject product can not be considered a
preparation for oral hygiene. WLC asks this Court to find that the
Explanatory Notes to Heading 3306 cover, among other preparations,
mouthwashes and oral perfumes, “thus, embracing the imported
product which acts as an oral perfume.” WLC’s Proposed Findings of
Fact & Conclusions of Law at 7 ¶ 3. Pursuant to Rule 1 of the
General Rules of Interpretation (“GRI 1”), however, the definition
and scope of terms of a particular provision is to be determined by
the wording of the statute and any relevant section or chapter
notes. See Sabritas, 22 CIT at 62, 998 F. Supp. at 1126-27. The
Explanatory Notes are not legally binding, although they generally
indicate the proper interpretation of the HTSUS. See Lynteq, Inc.
v. United States, 976 F.2d 693, 699 (Fed. Cir. 1992) (quotation
omitted). The Court recognizes that the Explanatory Notes to
Heading 3306 include oral perfumes in the list covering
preparations for oral hygiene. However, the Explanatory Notes do
not specifically include or exclude the subject merchandise from
Heading 3306. See Bausch & Lomb, Inc. v. United States, 21 CIT
166, 174-75, 957 F. Supp. 281, 288 (1997), aff’d, 148 F.3d at 1363.
The trial testimony revealed that many products, including an
Court No. 02-00254 Page 13
ordinary candy mint (not containing Retsyn®), mask odor.2 Tr. 69-
71. Following the logic presented by plaintiff would lead to an
absurd finding that the subject merchandise preserves the health of
the oral cavity simply because it perfumes the mouth. Such a
finding would be anomalous to the FDA’s conclusion that to be
considered a preparation for oral hygiene, a product must treat or
prevent disease. See Pl.’s Ex. 2; see also Findings of Fact ¶¶ 19,
20 (stating that Retsyn® (Certs) does not treat disease, rather it
is a cosmetic product).
C. Classification Under Heading 2106
Customs’ classification rulings are entitled to “a respect
proportional to [their] ‘power to persuade.’” United States v.
Mead, 533 U.S. 218, 235 (quoting Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944)). Customs’ rationale for classification of the
subject merchandise under HTSUS Heading 2106 is set forth in
Headquarters Ruling Letter (“HQL”) 963764, dated January 11, 2002.
Customs explains:
To be classified in heading 3306, HTSUS, the product
must be described by the terms of the heading. The
[Explanatory Notes] to heading 3306 identify certain
types of articles which are covered by that heading.
These are: dentifrices, toothpastes, denture cleaners,
2
The evidence presented by plaintiff regarding the
effectiveness of Retsyn® in chemically neutralizing volatile sulfur
compounds is irrelevant. Plaintiff’s expert testified that Certs®
Powerful Mints are cosmetic products and that the Retsyn® they
contain do not inhibit or kill bacteria.
Court No. 02-00254 Page 14
mouth washes and oral perfumes, denture fixative pastes,
powders and tablets, and yarn used to clean between the
teeth (dental floss). Breath mints are not included
among this listing. They also do not appear among the
many articles used in the care of teeth and mouth
enumerated in The Handbook of Nonprescription Drugs.
[Customs] do[es] not dispute the claim that the
Certs® products may help reduce or control bad breath.
However, they are packaged, labeled and marketed as
mints. Mints do not appear anywhere among the examples
of oral health products listed by the [Explanatory
Notes].
. . . .
The Certs® Powerful Mints contain only synthetic
sweetening agents and cannot be classified in Chapter 17.
because they contain no medicinal substances, and no
claim has been made that they are intended to be used for
therapeutic or prophylactic purposes, or that they are
designed to treat a[] specific disease or condition, they
are precluded from consideration as medicaments of
Chapter 30.
. . . .
The [Explanatory Notes] to heading 21.06 state that
the heading includes, inter alia, “[e]dible tablets with
a basis of natural or artificial perfumes (e.g.,
vanillin), . . . [s]weets, gums and the like (for
diabetics, in particular) containing synthetic sweetening
agents (e.g., sorbitol) instead of sugar.” These
exemplars describe articles akin to Certs® Powerful
Mints.
HQL 963764 at 5-7 (Jan. 11, 2002). This explanation is thorough in
its consideration and contains valid reasoning and, therefore, is
entitled to Skidmore deference. See Mead, 533 U.S. at 218; see
also Jewelpak Corp. v. United States, 297 F.3d 1326, 1331 (Fed.
Cir. 2002); Heartland By-Prods., Inc. v. United States, 264 F.3d
1126, 1133 (Fed. Cir. 2001). Accordingly, Customs’ classification
Court No. 02-00254 Page 15
of Certs® Powerful Mints in HQL 963764 under Heading 2106 is proper
and, therefore, affirmed.
Conclusion
Customs improperly classified the subject merchandise under
HTSUS subheading 1704.90.35 as a sugar confectionery with a duty
rate of 5.6 percent ad valorem. The Court finds, however, that the
subject merchandise is properly classified under HTSUS subheading
2106.90.99, as a food preparation not elsewhere specified or
included, dutiable at the rate of 6.4 percent ad valorem.
Accordingly, judgment will be entered in favor of Customs on its
counterclaim. Customs shall classify the imported merchandise
under HTSUS subheading 2106.90.99 and reliquidate the subject
merchandise accordingly.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: June 1, 2004
New York, New York