Importer Files Supplemental Briefs Regarding Classification of Mastectomy Bras

In one, Amoena sought to define the term "brassiere." In the other, the company addressed the 2014 U.S. Court of Appeals for the Federal Circuit decision Riddell v. U.S., in which the court held that "football pants, jerseys, and girdles were classifiable as articles of apparel under" Harmonized Tariff Schedule chapters 61/62, "as opposed to football equipment under chapter 95."

Amoena brought its 2020 case disputing the classification of its products under HTS heading 6212 as a brassier, which carries a 16.9% duty, and arguing instead the goods should be classified as medical accessories (see 2505130065). The products in question, mastectomy bras, hold artificial breast forms in place, making them accessories to the breast forms and medical devices, the importer said. The U.S. argued that the mastectomy bras don't have enough additional features to render them something other than brassieres.

Following oral argument, which was held on Dec. 10, Amoena filed the two supplemental briefs. In the brief concerning the definition of the term "brassiere," the importer said, in line with "prior interpretations and the common meaning of the term," the term means an "undergarment worn to support breasts."

Amoena argued that this definition is "consistent with the concept of bust support," as explained by CIT in its 2013 decision Victoria's Secret Direct v. U.S. and affirmed by the CAFC in 2014.

The court established three definitions of "brassiere" in Victoria's Secret. The first defined the term as a woman's “close-fitting undergarment having cups for bust support, varying in width from a band to a waist length bodice, made with or without straps, and often boned or wired for additional support or separation; also: an adaptation of this garment for sportswear.” The second definition is a "woman's undergarment worn to support the breasts," and the third is a "shaped undergarment worn by women to mold and support the breasts."

Even the definition of brassiere that includes "bust support" explicitly requires "the garment to have cups, which are obviously designed to support breasts," the importer said. Thus, "the merchandise at issue does not meet the definition of brassiere because it supports an artificial part of the body."

Amoena also sought to distinguish the CAFC ruling in Riddell v. U.S., which concerned pants with "compartments for protective pads" and jerseys that "were fitted for shoulder pads under the jersey," and were ultimately found to be apparel under chapters 61 and 62.

The importer said the headings in its case differ from those in Riddell, and that, in Riddell, "the court found that the garments at issue were within the common meaning of clothing under chapters 61/62" and didn't classify as "sports equipment," since "sports equipment does not include clothing."

Amoena said while the analysis of whether "football garments qualify as sports equipment has limited precedential value here, the same level of consideration should be afforded to the classification of the mastectomy bras (“MBs”) under heading 9021." There's "no doubt" the "principal purpose" of the bras is to "hold the breast forms in place," and the parties agree that the "breast prostheses are classified under heading 9021." Thus, the mastectomy bras "are an accessory or a part of the breast form classified under heading 9021 (with the breast form)," the brief said.

In addition, unlike Chapter 95, which excludes sports apparel, Amoena's classification of the mastectomy bras under Chapter 90 has "no such exclusion for apparel of chapter 61/62."

Lastly, unlike the goods in Riddell, "where the court held that the addition of pockets to accommodate padding was not significant enough to remove the garments from the provisions for wearing apparel, the design, marketing, sale, and use of the MBs is totally different than that of brassieres and demonstrate a sufficient change in identity to warrant removal from heading 6212," the brief said.