CLA 2 RR:CR:TE 960926 SG
TARIFF NO: 6109.90.1090; 6104.63.2011; 6104.43.2010
Thomas G. Travis, Esq.
Sandler, Travis & Rosenberg
5200 Blue Lagoon Drive
Miami, Florida 33126
RE: Classification of women’s garments; sleepwear vs. loungewear
Dear Mr. Travis:
This is in response to your letter of July 1, 1997, on behalf of your client, Sara Lee Knit Products (Sara Lee), requesting a binding classification ruling on four garments, pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). You claim that the garments are classifiable as sleepwear garments and have submitted arguments, various documents, and sample garments to substantiate your claim.
FACTS:
We are advised that the garments will be assembled in Mexico, Costa Rica, and various other countries from U.S. formed and cut fabrics. All the styles will be manufactured in a 50 percent cotton, 50 percent polyester waffle knit fabric. You advise that when imported the garments will have a hanging tag stating “Loungewear”.
Style LW 12 is a pair of long pants with an exposed elasticized self-covered waistband with picot edging and an overlock stitched hemmed bottom.
Style LW 14 is described as a “sleepshirt/lounger”. It extends to the ankles, has long, raglan sleeves, satin piping around the round neckline, and inseam pockets at each side of the garment at hip level. It has an overlock stitched hemmed bottom with 8 ½ inch side vents.
Style LW 15, is a sleeveless tank style garment which extends approximately 42 inches to mid thigh. It has satin piping around the scooped neck and arm hole openings. It has 8 ½ inch side vents at the hemline which is hemmed with overlock stitching.
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Style LW 16 is a sleeveless tank style garment which extends approximately 23 1/2 inches from the back neckline to the hem. The shoulder straps are over two inches wide. The garment has satin piping around the scooped neck and armhole openings. The hem is overlock stitched.
You indicate that although the garments will have tags on them labeling them as “loungewear”, their primary use will be as sleepwear. You contend that the labeling of the garments as “loungewear” is a marketing attempt to enhance sales by creating additional “intimate” uses for the garments. No physical changes are made to the garments to adapt them for use as outerwear.
It is your position that both the loose fit of the garments, the satin piping, and the lightweight fabric support classification as sleepwear garments. You state that the channels of trade, specifically, the “Hanes Her Way” brand name shows name recognition as underwear/sleepwear. It is your view that the loungewear tags on the garments, as well as the advertisements should be considered to be an additional “intimate” use of the garment, and a sales stratagem, rather than a contrary use of the garments.
In support of your claims you submit an article entitled “Lounge Looks Wake Up Sleepwear” which appeared in the March 17, 1997, issue of Discount Store News, which indicates that retailers have shifted from traditional sleepwear to loungewear to boost overall sleepwear sales. You have also submitted a copy of several pages from recent catalogues, as well as the March, 1997, issue of Market Maker by BFIA Body Fashions/Intimate Apparel.
ISSUE:
Whether the subject merchandise is properly classifiable as sleepwear under Heading 6108, HTSUS, or as outerwear garments under heading 6110, HTSUS and 6104, HTSUS, as appropriate?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the
terms of the headings and any relative section or chapter notes. Merchandise that cannot be
classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.
In determining the classification of garments submitted to be sleepwear, Customs usually considers the factors discussed in two court cases that addressed sleepwear. In Mast Industries,
Inc. v. United States, 9 CIT 549, 552 (1985), aff’d 786 F.2d 144 (CAFC, 1986), the Court of
International Trade considered the classification of a garment claimed to be sleepwear. The court cited several lexicographic sources, among them Webster’s Third New International Dictionary which defined “nightclothes” as “garments to be worn to bed.” In Mast, the court determined
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that the garment at issue therein was designed, manufactured, and used as nightwear and therefore
was classifiable as nightwear. Similarly, in St. Eve International, Inc. v. United States, 11 CIT
224 (1987), the court ruled the garments at issue therein were manufactured, marketed and
advertised as nightwear and were chiefly used as nightwear. Finally, in Inner Secrets/Secretly Yours, Inc. v. United States, 885 F. Supp. 248 (1995), the court was faced with the issue of
whether women’s boxer style shorts were classifiable as “outerwear” under heading 6204,
HTSUS, or as “underwear” under heading 6208, HTSUS. The court stated the following, in pertinent part:
[P]laintiff’s preferred classification is supported by evidence that the boxers in issue were designed to be worn as underwear and that such use is practical. In addition, plaintiff showed that the intimate apparel industry perceives and merchandises the boxers as underwear. While not dispositive, the manner in which plaintiff’s garments are merchandised sheds light on what the industry perceives the merchandise to be.***
Further, evidence was provided that plaintiff’s merchandise is marketed as underwear.
While advertisements also are not dispositive as to correct classification under the
HTSUS, they are probative of the way that the importer viewed the merchandise
and of the market the importer was trying to reach.
Furthermore, we bring your attention to International Home Textile, Inc., Slip Op. 97-31, March 18, 1997, which classified garments similar to those at issue here as loungewear in heading 6103, HTSUS. The court therein stated:
Based upon a careful examination of the loungewear as well as the testimony of the various witnesses, the court finds that the loungewear items at issue do not share that essential character of privateness or private activity. As the parties have already stipulated, the loungewear is used primarily for lounging and not for sleeping. The court finds no basis in the exhibits, the witness testimony, or the loungewear’s construction and design to find that it is inappropriate, at a minimum, for the loungewear to be worn at
informal social occasions in and around the home, and for other individual, non private activities in and around the house e.g., watching movies at home with guests, barbequing
at a backyard gathering, doing outside home and yard maintenance work, washing the car,
walking the dog, and the like....
You argue that the appearance and construction features of the garments at issue, including the lightweight fabric, satin piping, and loose construction, make them designed for use as sleepwear. In addition, it is your view that all three of the pullover garments, style LW 14, LW 15 and LW 16, are too bulky to be tucked into pants. The fact that there are no pockets on the pants is contended to be a characteristic of sleepwear.
We have physically examined the garments at issue and do not agree that the weight of the fabric, comfortable fit, and satin trim are not found in general apparel and are limited to sleepwear or intimate apparel. Neither the features on the garments nor the overall appearance of
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the garments themselves are absolute indicators of sleepwear. The appearance of these garments is, in fact, ambiguous. Nothing about the design or appearance of the garments makes them unsuitable for use as sleepwear, with the possible exception of the in-seam pockets on style LW 14. However, the counter argument that nothing about the design or appearance makes them unsuitable for use as general apparel is equally true. In such circumstances, the principal use is
determined by the manner in which the garments are designed, marketed and sold.
In past rulings, Customs has stated that the crucial factor in the classification of a garment
is the garment itself. As the court pointed out in Mast, "the merchandise itself may be strong
evidence of use." Mast at 552, citing United States v. Bruce Duncan Co., 50 CCPA 43, 46,
C.A.D. 817 (1963). However, when presented with a garment which is somewhat ambiguous and not clearly recognizable as sleepwear or underwear or outerwear, Customs will consider other factors such as environment of sale, advertising and marketing, recognition in the trade of virtually identical merchandise, and documentation incidental to the purchase and sale of the merchandise, such as purchase orders, invoices, and other internal documentation. It should be noted that Customs considers these factors in totality and no single factor is determinative of classification as each of these factors viewed alone may be flawed. For instance, Customs recognizes that internal documentation and descriptions on invoices may be self serving as was noted by the court in Regaliti, Inc. v. United States, 16 CIT 407 (May 21, 1992). We have long acknowledged that intimate apparel/sleepwear departments often sell a variety of merchandise besides intimate apparel, including garments intended to be worn as outwear. See HQ 955341 of May 12, 1994.
When considered with other information presented, Customs does not find the fact that the garments at issue here are sold by the Underwear Group of Sara Lee Products, which you claim does not sell outerwear garments, under the “Hanes Her Way” brandname of particular significance. What we do find of importance is the garments themselves and the manner in which the garments will be presented to the public.
You advise that the garments will be imported with a hang tag stating “Loungewear”. You claim that the term “Loungewear” is merely used in the trade to increase sales for what is “sleepwear”. In support of this claim a newspaper article was submitted on the use of the term by the intimate apparel industry. An analysis of the article indicates that loungewear encompasses multi-use articles that can be used as traditional sleep garments, but are also for other purposes. In Mast, 92 CIT 549, at 551, the court pointed out that the expert witnesses in that case agreed "that most consumers purchase and use a garment in the manner in which it is marketed." The tag is a factor to be considered in determining how this garment is marketed and likely to be used by purchasers, though it is not determinative in and of itself.
We have reviewed several pages from “Just My Size” and “Hanes Her Way” catalogues which advertise similarly styled garments. We note that these garments are advertised as “Light, soft lounge abouts”, “Loungewear”, and “lounger”. The potential uses of the garments are discussed, omitting any terms such as pajamas, nightshirts, etc. The garments are referred to
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generically as shorts, pants, tees, tunics, etc. and are, in our view, more likely to give the ultimate consumer the idea that they are items of general apparel, rather than sleepwear. The information you submitted does not show that the garments are merchandised to the consumer as garments to be worn exclusively as sleepwear.
We note that in your submission you state that “(n)o physical changes are made to the garments to adapt them for use as outerwear”. You also concede that the garments may be used as outerwear (albeit inside the home). It is however, your view that this use would be a fugitive
use. In Hampco Apparel, Inc. v. United States, 12 CIT 92 (1988), the Court of International Trade stated: “The fact that a garment could have a fugitive use or uses does not take it out of the classification of its original and primary use. The primary design, construction, and function of an
article will be determinative of classification, whether or not there is an incidental or subordinate
function.” Because the submitted samples are capable of being used to lounge around the home does not change what you claim is their principal use and character as sleepwear.
As the court noted in Mast, at 551, "most consumers purchase and use a garment in the manner in which it is marketed." In our view, these garments are clearly being presented as loungewear garments for wear other than for the primary purpose of wearing to bed for sleeping. They are presented as multi purpose garments and, in fact, nothing else in the advertising copy suggests the garments are designed or intended for wear while sleeping. Thus, Customs does not agree that these garments are presented to consumers as sleepwear garments; they are held out as casual loungewear for all day wear if desired.
Based on our examination of the garments supplied, we find that they are loungewear, i.e., loose, casual clothes that are worn in the home for comfort. Their fabric, construction and design are suitable for the type of nonprivate activities named in International Home Textile, Inc. Finally, although the garments may be worn to bed for sleeping, in our opinion their principal use is for “home comfort” and lounging. These garments can easily make the transition from inside the home (in a private setting) to outside the home (and a more social environment). In addition, all the samples submitted are made of fabric heavy enough for outdoor use.
Taking into consideration all of the information before us, especially the garments themselves and the marketing and advertising, Customs believes these garments are properly classified as outerwear garments, not as sleepwear.
As the subject garments are composed of a mixture of textile materials, that is, a blend of 50 percent polyester and 50 percent cotton, we look to Subheading Note 2 to Section XI, HTSUSA, which states:
(A) Products of chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification of a product of chapters 50 to 55 consisting of the same textile materials.
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(B) For the application of this rule:
(a) Where appropriate, only the part which determines the classification under general interpretative rule 3 shall be taken into account;
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Note 2 to Section XI, HTSUSA, states:
(A) Goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.
When no one textile material predominates by weight, the goods are to be classified as if consisting wholly of that one textile material which is covered by the heading which occurs last in numerical order among those which equally merit consideration.
In the case of the subject merchandise, for purposes of classification as the subject merchandise is composed of a blend of 50 percent cotton and 50 percent polyester fabric, as per the above referenced notes, no one textile material predominates by weight, and the garments are classified based on the heading which occurs last in numerical order, in this case, “of synthetic fibers”.
We would like to note however, that the classification determination rendered is based on the fiber content you have submitted to us, that is, a precise parity in the cotton and polyester
blend of the fabric. Even a slight change in the fiber content may result in a change in the classification and the applicable quota/visa restrictions. As such, Customs may subject the garments to laboratory analysis at the time of importation. In that respect, we advise you to inform Customs of any changes in the fabric composition of the subject merchandise or risk reclassification by Customs.
HOLDING:
The pants with an exposed elastic waistband with picot edging and hemmed leg bottoms are classified in subheading 6104.63.2011 HTSUSA, which provides for “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace
overalls, breeches and shorts (other than swimwear), knitted or crocheted: Trousers, bib and brace overalls, breeches and shorts: Of synthetic fibers: Other: Other: Trousers and breeches:
Women’s: Other.” The applicable general rate of duty is 29.1 percent ad valorem and the textile quota category is 648.
The garments, style LW 14 and 15, are classified in subheading 6104.43.2010 HTSUSA, which provides for “Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts,
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divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Dresses: Of synthetic fibers: Other: Women’s.” The applicable general rate of duty is 16.5 percent ad valorem and the textile quota category is 636.
Style LW 16 which is designed to cover the upper part of the body, is classified in subheading 6109.90.1090 HTSUSA, which provides for “T-shirts, singlets, tank tops and similar articles, knitted or crocheted: Of man-made fibers: Women’s or girls: Other.” The applicable general rate of duty is 33 percent ad valorem and the textile quota category is 639.
The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is
available for inspection at your local Customs office.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division