CLA-2 RR:CR:GC 962611 MGM
William D. Johnson, Esq.
Johnson & Associates
World Trade Center
350 South Figueroa Street
Suite 190
Los Angeles, CA 90071
RE: The “SUPER BAN Massage Patch”; Revocation of NY A85858
Dear Ms. Johnson:
This office has determined that New York Ruling Letter (NY) A85858, issued to you on July 25, 1996, in response to your letter of July 17, 1996, on behalf of Japan Life America Corporation, requesting a ruling regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the “SUPER BAN Massage Patch” is in error.
FACTS:
The “SUPER BAN Massage Patch” consists of a sealed aluminum foil packet, measuring approximately 6 ¼" x 2 _", containing ten (five pairs) adhesive patches on a release-paper backing. Each plaster measures _” x _”, is ventilated with four holes, and has a small, round-shaped, ferrite magnet attached to it at its center. According to the product literature supplied, the patch is applied directly against the skin to relieve “tightness” and to promote circulation in the area applied. No evidence was presented which corroborated the “SUPER BAN Massage Patch’s” efficacy in relief of tightness or promotion of circulation. In NY A85858, this article was classified in subheading 3005.10.50, HTSUS, as adhesive dressings and other articles having an adhesive layer: other.
ISSUE:
Whether the “SUPER BAN Massage Patch” should be classified in heading 3005, HTSUS, as wadding, gauze, bandages and similar articles?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff
classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
In NY A85858, dated July 25, 1996, the “SUPER BAN Massage Patch” was classified in heading 3005, HTSUS. This heading provides as follows:
3005 Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices), impregnated or coated with pharmaceutical substances or put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes.
Under the rule of ejusdem generis, the phrase “similar articles” is limited to goods which “possess the essential characteristics or purposes that unite the articles enumerated eo nomine.” Totes, Inc. v. U.S., 69 F.3d 495, 498 (Fed. Cir. 1995) (citing Sports Graphics, Inc. v. United States, 24 F.3d 1390 (Fed. Cir. 1994)). The characteristic which unites the exemplars of this heading is their direct application to an open wound or irritated skin. Furthermore, this heading is limited to items which are for “medical, surgical, dental or veterinary purposes.” The claimed relief of aches and pains provided by this product does not rise to the level of a medical treatment. Further, the requestor has not presented any evidence which suggests that physicians recommend the “SUPER BAN Massage Patch” to their patients. Thus it is not properly classified in heading 3005, HTSUS.
Neither does any other heading describe the “SUPER BAN Massage Patch.” Where goods cannot be classified according to GRI 1, the remaining GRIs are applied in order. GRI 2(b) states that "[a]ny reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances [and] any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3." EN GRI Rule 2(b) (XI) explains that "[t]he effect of the Rule is to extend any heading referring to a material or substance to include mixtures or combinations of that material or substance with other materials or substances [and] also to extend any heading referring to goods of a given material or substance to include goods consisting partly of that material or substance." In other words, if imported merchandise consists of a mixture or combination of materials or substances, it is treated as though described by the heading for each material or substance. However, if imported merchandise is a good (or article), it must be classified as a good (or article); if a good (or article) is composed of more than one material or substance, it is treated as though described by the heading for the good (or article) of each material or substance.
GRI 3 (b) states that goods which are prima facie classifiable under two or more headings and consist of different materials or are made up of different components shall be classified as if they consisted of the material or component which gives them their essential character. Factors which determine essential character may include bulk, quantity, weight, value, or the role of a constituent material in relation to the use of the goods. Explanatory Note VIII to GRI 3. Here, the magnet performs the principal function of the merchandise which is to create a magnetic field. The adhesive patch merely holds the magnet in place. In addition, it is the magnet which accounts for the greater part of the item’s value. Thus, the essential character of the “SUPER BAN Massage Patch” is found in the magnet. This is consistent with HQ 953264, dated March 30, 1994, in which refrigerator magnets, consisting of a plastic and metal component, were found to have their essential character imparted by the magnet and were classified in heading 8505, HTSUS.
Within heading 8505, the magnet falls within the provision for permanent magnets of “other” than metal as it has been permanently magnetized and is of ferrite, not metal. See EN 85.05 (2) (which notes the distinction between metal and ferrite “...of metal or of agglomerated ferrite”).
HOLDING:
The “SUPER BAN Massage Patch”is classified in subheading 8505.19.00, HTSUS, which provides for permanent magnets of metal.
NY A85858 is revoked.
Sincerely,
John Durant, Director
Commercial Rulings Division