United States Court of Appeals for the Federal Circuit
04-1489
WARNER-LAMBERT COMPANY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Patrick D. Gill, Rode & Qualey, of New York, New York, argued for plaintiff-
appellant. Of counsel on the brief were John S. Rode and Eleanore Kelly-Kobayashi.
Bruce N. Stratvert, Attorney, International Trade Field Office, Commercial
Litigation Branch, Civil Division, United States Department of Justice, of New York, New
York, argued for defendant-appellee. With him on the brief were Peter D. Keisler,
Assistant Attorney General, David M. Cohen, Director, and Barbara S. Williams,
Attorney in Charge. Of counsel on the brief was Chi S. Choy, Office of Assistant Chief
Counsel, United States Customs and Border Protection, of New York, New York.
Appealed from: United States Court of International Trade
Senior Judge Nicholas Tsoucalas
United States Court of Appeals for the Federal Circuit
04-1489
WARNER-LAMBERT COMPANY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
___________________________
DECIDED: May 11, 2005
___________________________
Before RADER, SCHALL, and BRYSON, Circuit Judges.
RADER, Circuit Judge.
The United States Court of International Trade sustained the United States
Customs Service determination to classify Warner-Lambert’s imported Certs® “Powerful
Mints” under Harmonized Tariff Schedule of the United States (HTSUS) subheading
2106.90.99, as a “food preparation not elsewhere specified or included.” Customs had
proposed this classification if the Court of International Trade found, as a matter of fact,
that the mints are sugar-free. Warner-Lambert instead sought classification under
HTSUS subheading 3306.90.00, “Preparations for oral or dental hygiene . . . Other,”
which would be free of duty. Because Customs’ classification of Warner-Lambert’s
Certs® Powerful Mints within subheading 2106.90.99 of the Harmonized Tariff
Schedules of the United States (HTSUS) does not persuade under the appropriate
standard, this court reverses.
I.
Warner-Lambert markets Certs® Powerful Mints as a product to freshen the
breath, and in particular to eliminate oral malodor. The product contains sorbitol,
maltodextrin, aspartame, magnesium stearate, “Retsyn®,” and blue food coloring.
Retsyn® contains flavoring, partially hydrogenated cottonseed oil, and copper gluconate.
Warner-Lambert presented expert evidence that Certs® is “an effective breath
freshening product” because it stimulates salivary flow, which controls malodor by
purging. Further testimony indicated that the product contains flavors that mask
malodor and copper gluconate that breaks down odor-producing volatile compounds.
Finally, the product contains cottonseed oil to absorb odor-producing volatile
compounds.
Customs presented expert evidence that the product does not contain
ingredients considered by professionals to remove bacteria and bacterial products
contributing to oral diseases. Accordingly, Customs argues that the product “does not
promote oral hygiene.” Customs’ expert did note, however, that saliva is an effective
cleansing solution that dissolves malodorous compounds and helps to mechanically
remove bacteria and volatile compounds from the mouth.
The Court of International Trade considered a monograph entitled “Over-the-
Counter Oral Health Care and Discomfort Drugs: Establishment of a Monograph,” 47
Fed. Reg. 22,760 (May 25, 1982), published by the Food and Drug Administration
(FDA). This monograph summarized the conclusions of a professional panel of the
FDA that evaluated ingredients in oral health care preparations sold without
prescription. The monograph stated that “hygienic measures” to control malodor
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included “various cosmetic preparations, such as odoriferous mouthwashes and
gargles, and lozenges. Some of the products employed contain antimicrobial and other
active ingredients for which therapeutic claims are made in addition to cosmetic claims.”
Id. at 22,842. The monograph also stated that malodor may be controlled by purging,
masking, chemical neutralization, or bacterial inhibition. Id. at 22,843-44.
The Court of International Trade weighed this evidence and consulted definitions
for “preparations” and “hygiene” from medical and general dictionaries. The trial court
concluded that, because “hygiene” “relates 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-Lambert Co. v. United States, 343 F. Supp. 2d 1315,
1320 (Ct. Int’l Trade 2004). Therefore, the court concluded that cosmetic products
“must reach an antimicrobial result to be considered a preparation for oral or dental
hygiene.” Id. Because Certs® Powerful Mints do not contain an antimicrobial agent, the
trial court declined to classify them as a preparation for oral hygiene under HTSUS
33.06. Id. at 1321.
II.
The parties do not dispute material facts about these imports. This court’s review
of their classification reduces to a determination of the proper meaning and scope of the
HTSUS terms. That determination is a matter of statutory interpretation, i.e., a question
of law. See SGI, Inc. v. United States, 122 F.3d 1468, 1471 (Fed. Cir. 1997). This
court construes a tariff term according to its common and commercial meanings–
presumably the same. To discern the commercial meaning of a tariff term, this court
may consult dictionaries, scientific authorities, and other reliable information sources.
See Mead Corp. v. United States, 283 F.3d 1342, 1346 (Fed. Cir. 2002). The HTSUS
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Explanatory Notes themselves are not binding, but are “generally indicative of the
proper interpretation of . . . the Harmonized Tariff System.” Lynteq, Inc. v. United
States, 976 F.2d 693, 699 (Fed. Cir. 1992).
This court defers to a classification ruling by Customs following the principles in
Skidmore v. Swift & Co., 323 U.S. 134 (1944). Mead Corp. v. United States, 533 U.S.
218, 219-20 (2001). Under Skidmore, the degree of deference depends on the
thoroughness evident in the classification ruling; the validity of the reasoning that led to
the classification; consistency of the classification with earlier and later
pronouncements; the formality with which the particular ruling was established; and
other factors that supply a “power to persuade.” Skidmore, 323 U.S. at 140. Although
according deference, this court has an independent responsibility to decide the legal
issue of the proper meaning and scope of HTSUS terms. See Rocknel Fastener, Inc. v.
United States, 267 F.3d 1354, 1358 (Fed. Cir. 2001).
III.
The terms in HTSUS determine the scope of the imports covered by the
categories. Heading 33.06 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: Dentifrices: Yarn used to clean between the
teeth (dental floss): Other.
The court below found that the phrase “preparations for oral or dental hygiene” is not
defined in any standard or technical lexicon. For guidance on this phrase, the court
resorted to the FDA monograph, which states, as noted above, that the use of
odoriferous cosmetic preparations without antimicrobial agents is a hygienic measure.
See Monograph, at 22,842. The monograph states that “only antimicrobial ingredients
04-1489 4
known to be effective against the causative microorganisms are effective in
suppressing the malodor,” Id. at 22,844, but it does not state anywhere that “hygiene”
requires antimicrobial action. The trial court, not the monograph, connected “health”
with “hygiene.” Nothing in the monograph, or in the dictionaries consulted by the court,
requires that identification. “Hygiene” might lead to “health”--but it is not “health” itself.
The trial court simply read too much into the monograph.
Further, the court’s interpretation discounts both the Explanatory Notes to
Chapter 33 and the examples in Heading 33.06 itself. The Chapter Notes specify that
the products of Heading 33.06 need not “contain subsidiary pharmaceutical or
disinfectant constituents,” nor be held out “as having therapeutic or prophylactic value.”
World Customs Organization, Harmonized Commodity Description and Coding System
613 (3d ed. 2002). The Explanatory Note to Heading 33.06 further specifies that the
heading encompasses “[m]outh washes and oral perfumes.” Id. at 620. Therefore, the
Notes accompanying this heading do not require antimicrobial agents in “preparations
for oral or dental hygiene.” To the contrary, the Notes expressly encompass “oral
perfumes” within the heading. In sum, the Court of International Trade went too far in
requiring that a product under Heading 33.06 include an antimicrobial agent.
IV.
As noted earlier, Customs proposed to classify Certs® Powerful Mints under
HTSUS Heading 2106.90.99. In assessing the deference appropriate for this action,
this court examines Headquarters Ruling Letter No. HQ 963764 of January 11, 2002.
In HQ 963764 Customs considered the appropriateness of classifying Certs® Powerful
Mints under Headings 17.04 (“sugar confectionery . . . not containing cocoa”); 21.06
04-1489 5
(“[f]ood preparations not elsewhere specified or included”); and 33.06 (“preparations for
oral or dental hygiene”). Customs also based its decision on the FDA monograph, The
Random House Dictionary of the English Language (n.d.), and the Explanatory Notes.
In its analysis of the FDA monograph, Customs did not acknowledge that the
monograph does not require a malodor preparation to contain an antimicrobial agent,
although the monograph does not suggest that only antibacterial products are
“hygienic.” Further, although Customs quoted the dictionary definition of “hygiene” as
“a condition or practice conducive to the preservation of health, as cleanliness,” it
overlooked the uncontested facts that Certs® Powerful Mints effect a cleansing action.
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.
V.
For these reasons, this court holds that Warner-Lambert’s Certs® Powerful Mints
properly fall under heading 33.06 of the HTSUS. The justification for Customs’ desired
alternative classification lacks the power to persuade under Skidmore. Because the
imported articles belong under Heading 33.06 of the HTSUS, this court reverses the
decision of the Court of International Trade.
04-1489 6
COSTS
Each party shall bear its own costs.
REVERSED
04-1489 7