OT:RR:CTF:VS H313790 TMF
Great Lakes Customs Law
32437 Five Mile Road Livonia, Michigan 48154
RE: Articles for the handicapped; Subheading 9817.00.96; SHERO Goodnight Leaks Thong, Bikini and Hipster Cut Panties
Dear Mr. Wapiennik:
This is in response to your request, dated March 26, 2020, for a binding ruling on the eligibility of certain women’s undergarments for duty-free treatment under 9817.00.96, Harmonized Tariff Schedule of the United States (HTSUS). Your request was forwarded along with digital images to this office for our review and determination by the National Commodity Specialist Division.
FACTS:
Style Goodbye Leaks Panty (bikini cut), Goodbye Leaks Thong (thong), Goodnight Leaks Panty (hipster cut) are all panties constructed from 87% nylon, 13% spandex knit fabric. The gusset linings are constructed of 92% polyester, 8% spandex. Counsel states that the polyester component is made of a special blend of 46% polyester and 46% bamboo charcoal yarn polyester. Under this lining is a layer of 100% polyester, which consists of a special blend of 52% polyester and 48% café (coffee grounds) polyester. Under that layer is a layer of 80% polyester, 20% spandex with a layer of polyolefin plastic as the outer bottom layer. The waist and leg openings are elasticized.
Counsel claims the articles are designed for urinary incontinence and have gussets infused with natural bamboo and coffee fibers for odor control. In the submission, counsel states that the garments’ lab results indicated that in two hours, urine ammonia smell was reduced by 75.6%. The garments are described as leak proof, bacteria resistant, ultra-thin and breathable. They are designed for reuse.
You state that all garments have a polyolefin plastic layer which serves as a waterproof barrier. You claim that the panty has the most leak protection because of the larger gusseted area, while the bikini is in second place and the thong in third place with the least amount of leak protection due to the smaller gusseted area due to the slimmer product cut.
We reviewed the marketing and find that based on the retail box, it states that the product is for “every woman” and sold on Amazon and at Walmart. For the panty and thong styles, the packaging states:
“Everyday use for urine leaks, light days or for extra protection during periods.” The back of the box states “We believe every woman should be free to leave pesky leaks and moisture behind and focus on what matters most. Whether you are leading a work meeting while on your period, enjoying an extra sweaty workout or experiencing one of those “pee a little when you sneeze” post childbirth moments, Shero has you covered. Ditch the stinky panty liners and confidently go through strong all day long.”
You claim for classification as adaptive articles of subheading 9817.00.96, HTSUS, which provides, in pertinent part for articles for the handicapped and that the products are classified as Type 1 medical devices and registered with the Food & Drug Administration.
ISSUE:
Whether the three garments at issue are eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
LAW AND ANALYSIS:
The Nairobi Protocol to the Agreement on the Importation of Educational, Scientific and Cultural Materials of 1982, Pub. L. No. 97-446, 96 Stat. 2329, 2346 (1983) established the duty-free treatment for certain articles for the handicapped. Presidential Proclamation 5978 and Section 1121 of the Omnibus Trade and Competitiveness Act of 1988, provided for the implementation of the Nairobi Protocol into subheadings 9817.00.92, 9817.00.94, and 9817.00.96, HTSUS.
Subheading 9817.00.96, HTSUS, covers: “Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles . . . Other.” In Sigvaris, Inc. v. United States, 227 F. Supp 3d 1327, 1336 (Ct. Int’l Trade aff’d, 899 F.3d 1308 (Fed. Cir. 2018), the U.S. Court of International Trade (CIT) explained that “specially” means “to an extent greater than in other cases or towards others” and “designed” means something that is “done, performed, or made with purpose and intent often despite an appearance of being accidental, spontaneous, or natural.”
Subheading 9817.00.96, HTSUS, excludes “(i) articles for acute or transient disability; (ii) spectacles, dentures, and cosmetic articles for individuals not substantially disabled; (iii) therapeutic and diagnostic articles; or, (iv) medicine or drugs.” U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS. Thus, eligibility within subheading 9817.00.96, HTSUS, depends on whether the article is “specially designed or adapted for the use or benefit of the blind or physically and mentally handicapped persons,” and whether it falls within any of the enumerated exclusions under U.S. Note 4(b), Subchapter XVII, Chapter 98, HTSUS.
The term “blind or other physically or mentally handicapped persons” includes “any person suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities, such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working.” U.S. Note 4(a), Subchapter XVII, Chapter 98, HTSUS. While the HTSUS does not establish a clear definition of substantial limitation, in Sigvaris, 227 F. Supp 3d at 1335, the CIT explained that “[t]he inclusion of the word ‘substantially’ denotes that the limitation must be ‘considerable in amount’ or ‘to a large degree.’”
We must first evaluate “for whose, if anyone’s, use and benefit is the article specially designed,” and then, whether “those persons [are] physically handicapped [].” Sigvaris, 899 F.3d at 1314.
The Court of Appeals for the Federal Circuit CAFC) clarified in Sigvaris, 899 F.3d at 1314-15 that to be “specially designed,” the merchandise “must be intended for the use or benefit of a specific class of persons to an extent greater than for the use or benefit of others” and adopted the five factors used by U.S. Customs and Border Protection (CBP): (1) physical properties of the article itself (e.g., whether the article is easily distinguishable in design, form and use from articles useful to non-handicapped persons); (2) presence of any characteristics that create a substantial probability of use by the chronically handicapped, so that the article is easily distinguishable from articles useful to the general public and any use thereof by the general public is so improbable that it would be fugitive; (3) importation by manufacturers or distributors recognized or proven to be involved in this class or kind of articles for the handicapped; (4) sale in specialty stores that serve handicapped individuals; and (5) indication at the time of importation that the article is for the handicapped. ADA compliance alone is insufficient to show that an item is “specially designed” for handicapped under subheading 9817.00.96, HTSUS. See Danze, Inc. v. United States, 319 F. Supp. 3d 1312 (Ct. Int’l Trade 2018).
Customs has determined in previous rulings that a person suffering from chronic incontinence is physically handicapped. See Headquarters Ruling Letter (HQ) 960056, dated January 30, 1997 which cites to two rulings that classified certain products as specially designed for the handicapped within subheading 9817.00.96 (see HQ 085691, dated April 18, 1990 which pertained to washable, breathable diapers used by men and women in hospitals) and HQ 557529, dated March 8, 1994 (which discussed an institutional adult diaper ("diaper") designed to manage serious, chronic incontinence problems that was marketed to women.) In HQ 557529, the diaper and insertable pad were marketed to hospitals, nursing homes, and acute and sub- acute health care facilities.
In analyzing the five factors adopted by the CAFC in Sigvaris and consistent with CBP precedent, we note that the instant garments are distinguishable from ordinary menstrual pads and reusable adult breathable diapers for severe chronic incontinence. The subject three styles possess a polyolefin plastic layer that acts as a waterproof barrier for some leak protection during menstruation or intermittent panty wetting. First, CBP does not recognize menstruation as a disability. Second, with regard to whether the garments are effective with chronic incontinence, we find they are incapable of retaining high volumes of urine, which is what is experienced by handicapped persons who suffer from chronic incontinence throughout the day. In sum, it is not likely that a handicapped person with chronic incontinence would use this product. While you state that the garments work with “stress incontinence”, this does not make them “specially designed for the handicapped” as their design does not provide for retention of heavy urine volume. With regard to “stress incontinence,” the advertisement is insufficient since there is no mention about whether the garments are suitable for high volume urine retention in cases of “stress incontinence” or severe, chronic incontinence, specifically. But see New York Ruling Letter (NY) A80127, dated March 4, 1996, and NY N065345, dated
July 15, 2009, both which found them to be eligible for duty-free treatment in subheading 9817.00.96, HTSUS.1
We reviewed your client’s website, https://www.sherousa.com, and find no mention of any disability, or any products specially designed for handicapped people. Further, while the packaging for the “Shero Leakproof Menstrual Underwear/Period Panty for Menstruation, Incontinence, & Bladder Leaks with Odor Control” targets mainstream users in its descriptive language that covers wear for intermittent use; or for those who have a need to “stay fresh,” this marketing fails because it does not include the chronic incontinent community. Rather, the products are designed “for everyday use for urine leaks, light days, or for extra protection during periods.” Light urine leaks and light day menstruation are not recognized disabilities. Further, the subject garments are not marketed to healthcare institutions such as hospital, nursing homes, or acute/sub-acute health care facilities. Rather, they are commonly sold in retail stores to the general public where menstrual panties and pads are located.
On balance, the five factors adopted by the CAFC in Sigvaris, 899 F.3d at 1314-15, weigh in favor of a determination that the subject garments are not “specially designed” for the use or benefit of persons with chronic severe, chronic incontinence to an extent greater than for the general public.
Accordingly, the three garments are not “specially designed” for “the use or benefit of … physically
… handicapped persons” and are not eligible for duty-free treatment under subheading 9817.00.96, HTSUS.
HOLDING:
The Goodbye Leaks Panty (bikini cut), Goodbye Leaks Thong (thong) and Goodnight Leaks Panty (hipster cut) are ineligible for duty-free treatment under subheading 9817.00.96, HTSUS.
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by [CBP] field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.”
1 The description in these two rulings ranged from “stress incontinence to heavy stress continence.” NY A80127, dated March 4, 1996 was issued to Bowers Medical Supply, whose website indicates they are a health care supplier in Canada. In this case, Shero is not a supplier to the health care industry. In NY N065345, dated July 15, 2009, CBP determined that incontinent briefs for men and women are typically worn by the chronically incontinent and found them eligible for subheading 9817.00.96. CBP noted that the women’s item was a “full brief…for minor to medium stress incontinence” and the men’s item was also a “full brief” for “medium to heavy stress incontinence.” Both items featured “a pad” and “a relatively long seam from the top of the leg opening to the waist band and other characteristics of items that are typically worn by the chronically incontinent.”
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Monika R. Brenner, Chief
Valuation and Special Programs Branch