The Court of International Trade recently ruled that certain mastectomy brassieres are properly classified as bras under HTSUS 6212.10.90 (16.9 percent duty) rather than as other artificial parts of the body and parts and accessories thereof under HTSUS 9021.39.00 (duty-free).
The bras under consideration are designed to be used by women who have undergone mastectomies and have not had reconstructive surgery, by providing support and holding an artificial breast form in position. The bras and the artificial breast forms are designed to create symmetry between the wearer’s natural breast and the artificial breast form. The bra’s design includes pockets in both cups to insert and hold in place an artificial breast form, and other features include wide shoulder straps to minimize strain on the shoulders, a wide under band to ensure that the breast form stays securely in place, a high center front to cover the breast and breast form, a higher side seam to provide coverage of any scars or radiation, a variable back fastening with a number of hooks, and elastics with soft edges at the inner cup edge.
These bras are marketed to women who are, or previously were, facing cancer diagnoses or underwent mastectomies. They are shown at medical conferences and the plaintiff has a section on its website for medical professionals to provide details to patients. These bras are most often purchased through medical specialists, orthopedic shops, or clinics where they are assisted by individuals taught to fit mastectomy bras and artificial breast forms. However, they are also purchased through department stores, specialty lingerie stores, and e-commerce websites.
The plaintiff argued that its mastectomy bras should be classified under HTSUS 9021.39.00 because they exhibit features substantially in excess of those within the common meaning of the term “brassiere” and because a heading 6212 bra must “support two breasts, not one.” CBP, for its part, argued that “a bra is a bra is a bra, as long as it is holding a woman’s bust – whether that bust be her natural breast [or] whether that bust be a replacement breast.”
The court indicated that the term “brassiere” does not suggest a use limitation based on the type of breast supported, whether that be a natural breast, an artificial breast, or an artificial breast form. Therefore, absent directive from the HTSUS or legislative history to the contrary, the court said it would not narrow the provision to only include bras used to support a woman’s natural breasts. The court also noted that the Explanatory Notes support its determination that a heading 6212 bra is not limited by use.
With regard to the argument that the bras under consideration exhibit features substantially in excess of those within the common meaning of the term bra, the court indicated that an article does not possess features in excess of a heading’s terms merely for improvements or a more particularized function. The test, according to the court, is whether the difference between the imported article and articles typically described under an eo nomine heading is so significant that it is “a change of identity.”
In the court’s opinion, the mastectomy bras satisfy the meaning of heading 6212 brassieres, as they are close fitting undergarments, with or without straps over the shoulders, and have cups to hold and support breasts. According to the court, the addition of the pocket features, to aid in a specific purpose for which they are intended, does not cause the bras to lose their character or render them in excess of heading 6212 bras.
Furthermore, the court disagreed that the mastectomy bras are “accessories” to artificial breast forms (which fall under heading 9021) under the HTSUS. Rather, the court asserted, mastectomy bras are specialized bras that support natural breasts, artificial breasts, and artificial breast forms, a “distinct and separate commercial entity” from artificial breast forms.
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