CAFC Reverses CIT's Classification of Sugar-Free Breath Strips
In Drygel, Inc. v. U.S., the Court of Appeals for the Federal Circuit reversed the classification decision issued by the Court of International Trade that Gel-A-Mint MagikStrips are more specifically provided for under HTS 3306.90.00, a duty-free provision for "Preparations for oral or dental hygiene," instead of HTS 2106.90.90, a catchall provision for "Food preparations not elsewhere specified or included" at (6.4%).
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Drygel's MagikStrips are thin, sugar-free, flavored strips of consumable material that dissolve when placed on the tongue.
In an earlier case, Warner-Lambert 2004-1489, the CAFC ruled that a similar product, Certs Powerful Mints, which contained certain flavors that masked mouth odors and increased salivation thereby purging bacteria located in the oral cavity, were properly classified in Heading 3306.
In the current case, the government argued that in order for any "oral perfume" to be classified within the scope of heading 3306, it must exhibit the type of cleansing action recognized in the Warner-Lambert case.
The CAFC, noting the Explanatory Notes to heading 3306, ruled the term "oral perfume" should carry its ordinary meaning as a substance that is intended to "perfume" the oral cavity (i.e., impart a pleasant smell to the mouth), with no cleansing effect required.
At oral argument, the government expressed a concern that the Court's interpretation of "oral perfume" could lead to the classification of numerous other products (i.e. candies and flavored cigarettes), in heading 3306. However, the CAFC stated that classification within heading 3306 is only appropriate if "goods of that class or kind to which the imported goods belong" are principally used as "oral perfumes."
The Magikstrips were ruled by the CAFC to be classified within subheading 3306.90.00.
(See ITT's Online Archives or 05/16/05 news, 05051620, for BP summary of CAFC 04-1489 ruling.)
CAFC decision 2008-1101 (dated 09/09/08) available at: http://www.cafc.uscourts.gov/opinions/08-1101.pdf