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Court Rules on Classification of Laminate Foil Used in Military Meal Packaging

Friday, November 21, 2014
Sandler, Travis & Rosenberg Trade Report

The U.S. Court of Appeals for the Federal Circuit ruled Nov. 18 that an aluminum-plastic laminate foil (Flexalcon) made to be used in the packaging of military meals ready to eat is properly classified as other flexible sheets of plastic under HTSUS 3921.90.40 (4.2 percent duty). The importer had argued for classification as other aluminum foil under HTSUS 7607.20.50 (duty-free).

Flexalcon is a flat, multi-layer material that comes in two configurations: a four-layer material for the base of a package and a three-layer material for the lid. Each configuration has a thin layer of aluminum foil sandwiched between layers of plastic. The aluminum layer serves a barrier function by substantially preventing the penetration of light, water vapor, oxygen and other harmful contaminants that would degrade the packaging’s food contents. The plastic gives the packaging tensile strength, increases heat resistance, allows the package to be hermetically sealed, and prevents cracking and piercing.

The General Explanatory Note to HTSUS Chapter 39 states that this chapter includes sheets of plastic separated by a layer of another material such as metal foil so long as such goods retain the essential character of plastics. The CAFC upholds the Court of International Trade’s determination that the latter criterion is met in this case because plastic predominates in Flexalcon according to traditional measures like bulk, quantity, weight and value and also gives the product its strength and flexibility. Flexalcon is thus classifiable in heading 3921 and is therefore excluded from the scope of heading 7607 in light of Note 1(d) to Chapter 76, which states that heading 7607 does not apply to goods that assume the character of articles or products of other headings.

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