Trial Needed in Incontinence Underwear Classification Dispute, Importer Argues
Knit underwear importer Viecura opposed the government’s motion for judgment in Viecura’s classification case Aug. 29 after arguing that a number of material facts are still in dispute (Viecura v. United States, CIT Consol. # 21-00154).
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The importer is alleging that CBP wrongly failed to classify its products, underwear designed to keep incontinence pads in place, under the secondary Harmonized Tariff Schedule heading 9817 for clothing “specially designed” for “physically or mentally handicapped persons.” Had the heading been applied, Viecura wouldn’t have had to pay a 15% antidumping duty on its product (see 2304140029).
Viecura previously challenged the government’s expert testimony (see 2503170063). In its Aug. 29 brief, it disagreed that there were no material facts in its case in dispute and asked for a trial.
It said it listed a number of its products’ unique physical features in its complaint, “none” of which “are commonly seen in underpants” -- for example, the “wide waistband[s] with substantial spandex content” and seams across the underpants’ crotch areas. The U.S. motion for judgment “mentions some of these features, but does not mention others,” it said.
Further, Viecura said, there remain other material facts in dispute.
For example, it said, the U.S. wrongly stated that the products are destined primarily for post-partum care and “that post-partum incontinence or maternity incontinence is an ‘acute’ or ‘transient’ condition (see 2506300063).
First, this was incorrect; as the importer’s witnesses testified, post-partum incontinence can last up to two years or even be lifelong, the Viecura argued.
It also said the government was asserting without evidence that most of Viecura’s products were destined for post-partum care. It agreed that “about 90 percent of company’s sales are made to hospitals,” but said that didn’t prove those hospitals used the underpants primarily in maternity wards. One of its witnesses testified that the underwear was also used in geriatric wards, it said.
Viecura also said some of the remaining sales were to distributors who resold the underpants to “different health care-type facilities; like hospitals, nursing homes, in some cases home care dealers.”
“One may observe that persons who reside in nursing homes, elder care homes, and rehabilitation facilities, who suffer from chronic incontinence, are frequently transferred to hospitals for medical attention,” it said. “It may also be observed that incontinence itself is not a condition typically requiring hospitalization.”
It also said the U.S. “focuses in on some fugitive uses of the product such as for bleeding control or wound care,” but that “this is not the intended use of this product and is not what the product was created for.”