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Shelf Bra Garments Not Classified as Shirts or Bras, Court Says

Thursday, May 09, 2013
Sandler, Travis & Rosenberg Trade Report

The Court of International Trade issued recently two decisions concluding that certain women’s outerwear garments with built-in shelf bras are classified as other knit garments instead of as tank tops or bras.

Bra Tops. The garment at issue in Victoria’s Secret Direct LLC v. U.S. is a 95% cotton/5% spandex top containing an interior fabric insert designed to cover the bust of the wearer. This built-in shelf bra is attached solely at the top of the garment and has an elastic band at its bottom that is designed to be worn under the bust. The bra top also has thin straps to go over the wearer’s shoulders.

CBP classified these tops as tank tops and similar garments under HTSUS 6109.10.00 (2006, 16.5% duty). However, the CIT concluded that the bra tops fall outside the scope of this subheading because they are designed to provide bust support as well as upper body coverage. Victoria’s Secret had argued for classification as brassieres and similar articles under HTSUS 6212.90.00 (6.6% duty). The CIT rejected that classification as well, stating that the bra top is neither a brassiere (because it is not specifically designed to provide bust support) nor a sports bra (because it is not an adaptation of a brassiere for sports purposes). It also does not fall within the meaning of “similar articles” because it does not bear the same essential characteristics of supporting a body part or supporting a garment. Although the court agreed that the bra top provides some bust support, it did not consider this sufficient evidence that such support is the essentialcharacteristic of the garment.

The CIT therefore held that the bra tops are classifiable under HTSUS 6114.20.00 (10.8% duty).

Body shapers. The garment at issue in Lerner New York Inc. v. U.S. is a 92% nylon/8% spandex knit top marketed as a body shaper. It has an inner layer of fabric designed to cover the bust of the wearer that is attached solely at the top of the garment and has an elastic band at the bottom. The garment has thin straps that go over the wearer’s shoulders and cannot be separated into two independently functioning garments because these straps would have to be used for both.

The CIT upheld CBP’s classification of this garment as a manmade fiber knit top under HTSUS 6114.30.10 (2005, 28.2% duty). Lerner claimed the garment should be classified as a brassiere, but the court disagreed for the same reasons as given above. The court also noted that the garment is not a t-shirt or blouse under HTSUS 6106 or 6109 because it is not loose fitting, has no sleeves and a low neck line, and is designed to provide bust support in addition to upper body coverage.

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