OT:RR:CTF:EMAIN H302563 JRG
Michael E. Roll, Esq.
Pisani & Roll, LLP
1875 Century Park East, Suite 600
Los Angeles, California 90067
RE: Request to reconsider NY N299805, NY N299933, and NY N299937; Classification of electric facial cleansing devices
Dear Mr. Roll:
This is in response to your request for reconsideration, on behalf of Foreo, Inc., of U.S. Customs and Border Protection (“CBP”) Rulings NY N299805 (September 6, 2018), NY N299933 (September 7, 2018), and NY N299937 (September 7, 2018). In those rulings, CBP ruled that various models of Foreo’s Electric Facial Cleansing Devices (also referred to herein as “EFCDs”) are properly classified under Harmonized Tariff Schedule of the United States ("HTSUS") subheading 8509.80.50.
NY N299805 describes the LUNA 2 as follows:
This device is a battery powered hand-held facial cleaning brush designed for cleansing and exfoliating the skin. The device has a self-contained electric motor enclosed in a plastic housing having a control switch. The LUNA 2 is oval shaped and measures approximately 1.4 inches by 3.3 inches by 4 inches at its widest points. The upper portion of the device features a brush made of plush silicone bristles of various lengths and patterns. Packaged together in a retail-ready cardboard box are the device, an instruction manual, a drawstring pouch and a USB charging cable.
NY N299933 describes the LUNA 2 Mini as follows:
The device is a battery powered hand-held facial cleansing brush designed for cleaning and exfoliating the skin. The device has a self-contained electric motor enclosed in a plastic housing having a control switch. The LUNA Mini 2 is oval shaped and measures approximately 0.75 inches by 3.3 inches by 3 inches at its widest points. The upper portion of the device features a brush made of plush silicone bristles of various lengths and patterns. The device will be imported packaged with a USB charging cable in a retail-ready clear plastic box.
Lastly, NY N299937 describes the LUNA fofo as follows:
The device is a battery powered hand-held facial cleansing brush designed for cleaning and exfoliating the skin. The device has a self-contained electric motor enclosed in a plastic housing equipped with a control switch. The LUNA fofo is oval shaped and measures approximately 0.75 inches by 2.3 inches by 2.5 inches at its widest points. The brush is made of plush silicone bristles of various lengths and patterns. The device will be imported with a USB charging cable packaged together in a retail-ready clear plastic box.
In your reconsideration request, you indicate the above product descriptions are accurate, however, they fail to consider the massaging function performed by the merchandise, as demonstrated by snapshots from Foreo, Inc.’s website. You further argue this massage function is the primary function of the subject merchandise and falls within CBP’s previous definition of “massage” to include “active motion, whether manual or mechanical, to induce relaxation and/or pain relief.” See HQ H266056 (January 16, 2018). As such, you contend the subject merchandise is appropriately classified in heading 9019, HTSUS, and, consequently, precluded from classification under heading 8509, HTSUS, by Note 1(m) to Section XVI, HTSUS. Lastly, even if the articles are described by heading 8509, HTSUS, you maintain the EFCDs should still be classified under heading 9019, HTSUS, by application of General Rule of Interpretation (GRI) 3.*
Tariff classification is governed by the principles set forth in the GRIs and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings and any relative section or chapter notes.” If the goods cannot be classified solely based on GRI 1, and if the headings and legal notes do not otherwise require, GRIs 2 through 6 may be applied in order.
The HTSUS headings and subheadings at issue are the following:
8509 Electromechanical domestic appliances, with self-contained electric motor, other than vacuum cleaners of heading 8508; parts thereof:
* * *
9019 Mechano-therapy appliances; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof:
Note 1(m) to Section XVI, which includes heading 8509, HTSUS, indicates articles of Chapter 90 are not covered by Section XVI. As such, the central issue is whether the EFCDs can be classified under heading 9019, HTSUS.
Note 4(b) to Chapter 85 provides, in relevant part:
Heading 8509 covers only the following electromechanical machines of the kind commonly used for domestic purposes:
* * *
(b) Other Machines provided the weight of such machines does not exceed 20 kg, exclusive of extra interchangeable parts or detachable auxiliary devices.
Notwithstanding any massaging function that you emphasized in your reconsideration request, the instant devices feature a cleansing brush designed for cleaning and exfoliating the skin. Therefore, they are not, in their entirety, covered by heading 9019, HTSUS, as massages apparatuses. By virtue of not being prima facie classifiable under heading 9019, HTSUS, they are not excluded from classification under Section XVI by operation of Note (1m).
Turning then to the scope of heading 8509, HTSUS, on the basis of GRI 1, we note that each of the EFCDs is an electromechanical device with a self-contained motor, used in the domestic setting, and weighing under 20 kg. As such, the instant electric facial cleansing devices are prima facie classifiable, and properly classified, under heading 8509, HTSUS.
Given such, we note that GRI 3 is inapplicable to the present case because GRI 3 is contingent on the subject merchandise being prima facie classifiable under two or more headings. To the extent that the subject EFCDs could be regarded as composite goods or machines, we find that their design and intended use (as indicated in the provided marketing descriptions) evinces a primary function and essential character of cleansing. In essence, the EFCDs are facial cleansing devices more so than massagers.
We therefore conclude that Foreo, Inc.’s LUNA 2, LUNA Mini 2, and LUNA fofo EFCDs are electromechanical domestic appliances with self-contained electric motors of heading 8509, HTSUS, by application of GRI 1. Specifically, they are properly classified under subheading 8509.80.50, HTSUS, by application of GRI 6. NY N299805, NY N299933, and NY N299937 are hereby affirmed.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division