US, Cozy Comfort Swap Proposed Findings of Law, Fact After Trial in Customs Spat

In its brief, Cozy Comfort argued that it clearly established that The Comfy should be classified as a blanket under Harmonized Tariff Schedule heading 6301 and not a pullover under heading 6110. The Comfy is a large, sherpa-lined item with sleeves, a hood and a marsupial pocket in front.

The importer spent the bulk of its brief arguing against classification under heading 6110, first noting that a good is pulled out of this heading when it provides "extra" warmth; protects against wind, rain or extreme cold; and covers more than just the "upper body."

The importer first said The Comfy isn't ordinarily worn as wearing apparel and is thus "not considered in ordinary parlance to be 'wearing apparel' or an 'identifiable clothing item.'" The company said it's a "brand new, novel patented product designed, marketed, and sold as an alternative to a household blanket that allows the user to cocoon inside but also bears the additional, convenient feature of portability, not as clothing for general use in public."

Cozy Comfort argue that the evidence at trial established that while the item "bears some similarities to identifiable garments," it has other "non-clothing features that sharply and materially distinguish it from standard wearing apparel," including its extra large sleeve openings and ability to cover the wearer's entire face. Cozy Comfort repeatedly referenced throughout its brief the ability for the user to "cocoon" inside the item -- that is, bringing all of one's limbs inside The Comfy for extra warmth.

The importer then claimed that The Comfy is designed and intended to be used as a blanket and not wearing apparel. The company said it's "critical to note" that the company's evidence on the item's primary design and use "was left unrebutted by the government."

The U.S. instead only relied on a "single marketing statement, which occurred years before the entry in this litigation was filed," to claim that the item can be used during activities like dancing, sitting at a sporting event or taking a walk, the brief said. Even if true, this just establishes that the item "can be used in multiple ways in addition to warmth, just like a typical blanket, so it is not determinative for classification purposes," the brief said.

The U.S. argued that The Comfy isn't designed, intended or marketed for protection from extreme cold, relying heavily on the expert testimony from its witness, Mary Ann Ferro, a professor at the Fashion Institute of Technology. Ferro testified that the item "is an oversized pullover with a hood that was designed primarily for indoor use and does not have the materials and characteristics to protect against extreme cold."

Ferro said that The Comfy's sherpa lining isn't "thick like most Sherpa blankets which have a very thick Sherpa." The government said this is "one of the many features that prevents The Comfy from being able to provide protection from extreme cold, even in the cocooning position." Ferro said the wearer cannot safely use the item in the freezing cold since "it is too open, it is not protective enough, and the fabrics are not quite strong enough to keep anybody warm in extreme cold."

In its brief, Cozy Comfort took aim at the government's standard for "extreme cold," claiming that the U.S. improperly bucked the accepted construction of the term to say that it means "arctic cold." The importer said this claim is "inconsistent with the statutory framework" that "places articles that provide some warmth in heading 6110, HTSUS and those that provide additional warmth and protection elsewhere."

In addition, the importer said the governments' interpretation "fails to account for the inherent subjectivity in the concept of 'extreme cold.'" The company relied on the expert testimony of its witness, James Crumley, an indivdiual who has designed insulated camping blankets and hunting garments. Crumley testified that layering is the key to sheltering against extreme cold, and that The Comfy "serves as the outermost layer and when used in this way with appropriate layering underneath it protects against extreme cold." Crumley also said that pullovers don't typically have sherpa lining and even if they did, they "would not provide nearly as much warmth as The Comfy," the brief said.

The U.S. said Crumley's testimony "was at times implausible, questionable, and even inconsistent as regards The Comfy’s ability to protect from extreme cold, physical characteristics, design and intended use, and marketing." For instance, Crumley said he field tests garments he makes, which involves using them while hunting, and that he was asked by companies he worked with to field test products. However, "he wasn't ever asked by anyone to field test The Comfy," the U.S. said.

Cozy Comfort added that Ferro used an incredibly demanding standard for extreme cold, "casting serious doubt on the overall reliability of her testimony." She said that extreme cold means 15 degrees below zero. If this is the standard, this figure has only been observed in New York one time in U.S. history, the brief said. "This simply cannot be the standard of 'extreme cold' that the [U.S. Court of Appeals for the] Federal Circuit intended to adopt in establishing a way to distinguish between sweaters, pullovers, and the like from other articles that provide greater warmth."