Importer Again Argues Mastectomy Bra Products Are Medical Accessories, Not Brassieres
Importer Amoena argued May 9 again that their mastectomy brassieres should have been classified as medical accessories, not “other” brassieres, saying that “a straightforward ‘visual review’” of the products wasn’t enough on its own to classify them. It also asked the trade court to accept certain apparently unaddressed facts on the record (Amoena USA Corp. v. United States, CIT #20-00100).
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Amoena argued in a November motion for judgment that its brassieres, which hold artificial breast forms in place for women who have had mastectomies or lumpectomies and chosen not to undergo reconstructive surgery, fall under Harmonized Tariff Schedule heading 9021 as accessories for artificial body parts (see 2411210048). The U.S. pushed back with a cross-motion arguing that the bras either didn’t fit under heading 9021 at all, or, if they did, that they were more specifically described by heading 6212 as “other” bras (see 2503100069).
In its May 9 brief, it disagreed with the government’s claim that “[a] visual review” of the bras “establishes that there is no dispute” as to their classification under heading 6212, an eo nomine provision. The bras don’t fall under the heading at all, it said.
“The law is not that straightforward as an eo nomine provision does not encompass everything literally within the term,” it said.
It disagreed that there is a “standard definition” of the term “brassiere.” CIT has twice dealt with the issue -- in Lerner New York v. United States and Victoria’s Secret Direct v. United States -- and, each time, it relied on three different definitions pulled from various dictionaries, Amoena said. The government’s cross-motion, however, only offered one of those definitions, it said: “a close-fitting undergarment with cups made for bust support made with or without straps.”
But the bras are actually principally meant to keep artificial breast forms secure and cover any remaining scar tissue, it said.
The government also ignored the other two definitions of brassieres as a “woman’s undergarment worn to support the breasts” and a “shaped undergarment worn by women to mold and support the breasts,” it said. Its bras meet neither definition, it said.
A product’s end use may be factored into classification under an eo nomine provision either when the provision specifically calls for it or when “determining whether [the subject article] fits within the classification's scope,” it said.
“Here, even if the MBs [mastectomy bras] fall within the common meaning of brassiere, we submit that the design, use, and function of the MBs provide features substantially in excess of an ordinary brassiere,” it said.
The importer also argued that its products do fit under heading 9021 because CBP has “consistently” classified artificial breast forms under the same heading.
And, though the U.S. claimed Amoena’s products weren’t accessories “because, in its view, the breast form[s]” were subordinate to the mastectomy brassieres, the government is wrong “because the breast forms are clearly the primary component,” Amoena argued.
It is the breast form “that replaces lost breast tissue, thereby restoring the natural appearance of the breast and providing crucial emotional and psychological benefits to women,” it said. These forms also prevent back pain. As a result, they are covered by medical insurance and regulated by the Food and Drug Administration, it said.
Amoena added that its business was created to produce artificial breast forms and hadn’t expanded to include mastectomy bras “until years later.”
“The MB plays a secondary, supportive role -- it merely secures the breast form in place,” it said. “The MB, on its own, cannot offer any of the restorative benefits the breast form provides.”