CIT Affirms CBP HTS Classification of Foot Callus Remover as 'Other Cutlery'
The Court of International Trade ruled that CBP correctly classified plaintiff Telebrands Corporation’s PedEgg foot callus remover as other cutlery rather than a pedicure set. Although the device includes both a blade and emery pads to remove excess skin, the PedEgg is not a set because it is a single instrument, CIT said.
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(The product at issue, Telebrands’ PedEgg, is a callus remover. It consists of a two shaped and curved pieces of plastic with another interior plastic piece that can be fitted together to form an egg-shaped object that fits in the user’s hand. A flat stainless steel perforated object, described as a “microfile” to “gently remove calluses and dead skin” is affixed to the interior plastic piece. The metal object’s function is to slice away very small, thin pieces of callused skin. As advertised for retail sale, the PedEgg is described as “designed to collect all the skin shavings in a convenient storage department.” It is imported with one or more emery pads that may be adhered to the exterior of the PedEgg for further smoothing. Each item of subject merchandise was imported in a plain cardboard box.)
CBP originally classified the importer’s merchandise under Harmonized Tariff Schedule subheading 8214.20.30 (“other articles of cutlery…; manicure or pedicure sets and instruments; cuticle or cornknives, cuticle pushers, nail files, nailcleaners, nail nippers and clippers, all the foregoing used for manicure or pedicure purposes, and parts thereof”). CBP then reclassified and reliquidated the merchandise under HTS subheading 8214.90.90 (“other articles of cutlery; other; other…”), pursuant to its ruling in HQ H063622.
Telebrands argued that the PedEgg was instead correctly classified under HTS subheading 8214.20.90 (“other articles of cutlery…; manicure and pedicure sets and instruments…; manicure and pedicure sets, and combinations thereof, in leather cases or other containers…; other). The two requirements of that subheading are that (1) the item constitute a “set,” as opposed to one item or instrument, and (2) the merchandise must be imported in a container normally sold with the set of instruments in retail sales, CIT said.
Telebrands argued that the outer “egg” is the requisite container, avoiding the question of whether its cardboard box was substantial enough to constitute a container for the purposes of 8214.20.90. But CIT said it did not have to resolve that issue, because the PedEgg does not constitute a set.
Specifically, said CIT, the emery boards imported with the PedEgg are thin and flexible and “not well suited for use except as affixed to the PedEgg.” Telebrands argued that, because the emery pad is affixed to the outer bottom of the egg, it is to be used separately, but CIT said the egg must be closed and used as one piece in order for pressure to be applied comfortably to the emery pad. Thus, said CIT, the emery pad by itself or as affixed to the egg is not a separate instrument. “Because the PedEgg is a unitary cutlery item and not a set, it is to be classified under subheading 8214.90.90,” said CIT, “the basket provision for other cutlery items and their parts.
(Telebrands Corporation v. United States, CIT Slip Op. 12-115, dated 09/06/12, Judge Restani)
(Attorneys: Robert Seely of Grunfeld Desiderio Lebowitz Silverman & Klestadt for plaintiff Telebrands; Amy Rubin for defendant United States.)