US Again Says Mastectomy Bras Aren't 'Medical Accessories'
The U.S. again said June 23 that an importer’s mastectomy brassieres should be classified as brassieres, not medical accessories (Amoena USA Corp. v. U.S., CIT #20-00100).
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As it did in a March 7 cross-motion for judgment (see 2503100069), it argued that the products are not classifiable as accessories at all. Alternatively, if they are, Harmonized Tariff Schedule General Rule of Interpretation 3(a) would still dictate they be classified as brassieres first, it said.
Importer Amoena brought its 2020 case disputing the classification of its products under HTS heading 6212, which carries a 16.9% duty. It has described itself as a business created to sell artificial breast forms for people who have undergone mastectomies or lumpectomies and have elected not to undergo surgical breast reconstruction (see 2505130065). The products in question, mastectomy bras, hold those artificial breast forms in place -- making them accessories to the breast forms, medical devices, the importer argues.
Despite Amoena’s claim otherwise, its mastectomy bras don’t have enough additional features to render them something other than brassieres, the government said in its June 23 brief.
That the importer’s bras fall under HTS heading 6212 is also shown by the fact that Amoena only began selling mastectomy bras years after the importer made its start developing breast forms, it claimed. That meant that, in the intervening period, “users of the breast forms would have had to place them in brassieres that were available in the marketplace.”
As it has previously, the government also claimed the mastectomy brassieres can’t be considered medical accessories because they aren’t subordinate to the breast forms. The breast forms are accessories of the brassieres, not the other way around, it said.
“[W]hile a woman can wear a brassiere without the breast form, she cannot wear the breast form without the brassiere to hold it in place,” it said. “In this context, it is the breast form, not the brassiere, that is optional.”
The government argued that, alternatively, heading 6212, which covers brassieres, is more specific than heading 9021, which covers medical accessories. Therefore, if the Court of International Trade were to find Amoena’s products were classifiable under both headings, it must ultimately locate them under 6212 based on GRI 3(a), it said.
It noted that the U.S. Court of Appeals for the Federal Circuit has determined that “accessory” HTS provisions are always less specific than provisions for a specific type of item, as “the term accessory could ‘include a wide variety of items having many functions.’”