Importer’s Underpants Aren’t ‘Specially Designed’ for People With Disabilities, US Says
A knit underwear importer’s products weren’t correctly classified under the secondary Harmonized Tariff Schedule heading 9817 for clothing “specially designed” for “physically or mentally handicapped persons,” the U.S. said June 27, which would have exempted them from a 15% antidumping duty on their products (Viecura v. United States, CIT Consol. # 21-00154).
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The importer, Viecura, said it imports its products from China to sell to three main clients, all in healthcare -- Cardinal Health, Essity and Attindas. It says that the underpants are specially designed to hold incontinence pads in place.
But the underpants themselves aren’t designed to absorb bodily fluids, the U.S. noted.
The government said that it deposed employees from all three customers regarding the end use of Viecura’s products. Cardinal Health, it noted, sells the underpants as products designed for incontinence or maternity. And both Cardinal Health and Attindas sell most of their underpants to acute care centers, especially maternity wards -- meaning the end users of the underpants aren’t those with permanent disabilities, as the HTS heading requires.
“It is evident that Viecura’s sells its knit underpants as a maternity product, and the condition of maternity is the quintessential temporary disability and not a permanent or chronic impairment,” it said.
As well as not being meant for “physically or mentally handicapped persons,” Viecura’s products also can’t be considered “specially designed,” the government argued.
To be “specially designed” under the U.S. Court of Appeals for the Federal Circuit case Sigvaris, Inc. v. United States, a product must be meant to be used by people with disabilities “to an extent greater than for the use or benefit of others,” it said. In making that determination, CBP must consider the product’s physical properties, the product’s design, whether the product is used exclusively by people with disabilities, the product’s general ability to be to used by the public and whether the product is sold in specialty stores. It said that this is meant to ensure that, to "comport" with the Educational, Scientific and Cultural Materials Importation Act of 1982, a product isn’t granted duty-free treatment for “an insignificant adaptation” -- as described by the Senate Report on the Act.
Viecura’s products fail an analysis of these factors, the government said.
First, it said, the underpants’ physical characteristics are typical of all knit underpants, which Viecura itself admits. Second, they also share a “common design” with regular underpants, it said.
Third, as previously noted, many of the underpants’ users are in acute care centers in hospitals, it said.
Fourth, because they are built like all underpants, the products would be “useful to the general public,” it said.
And, fifth, most of the final sales of Viecura’s products are conducted outside of speciality stores, it said.
“In sum, not one of the five factors discussed above supports the conclusion that the underpants at issue are specially designed for the use or benefit of the physically handicapped,” it said.