Friday, May 18, 2012

CBP and Homeopathy

Here's something you may not know about me: I am an annoying science guy. That is not to say that I have any credentials or even skills in the hard sciences. Rather, it means I firmly believe in the sciences and the critical role of science in daily life and important policy decisions. Based on the evidence I see in the consensus of trained professionals, I accept the premise that vaccines are a boon to civilization, that humans are at least partially responsible for global warming, and that humans evolved from other primates over millions of years. I reject the premise that space aliens helped build ancient cultures, that $2 rubber bracelets improve athletic performance, and the anyone has psychic abilities. Bigfoot? Maybe, but only because it does not violate any established laws of nature for there to be a large undiscovered hominid loping around the wilderness. But, I won't really accept it until I see one on the front page of a paper that is not sold in the grocery store checkout aisle.

One of my least favorite forms of woo is homeopathy. This is the branch of quack medicine that asserts two basic premises. First, a symptom can be alleviated by administering a substance that causes the same symptom. Second, the more dilute the dosage of of that substance, the more pronounced the affect. The first proposition is simply counter intuitive. The second is counter intuitive to the point of appearing crazy. But, that's homeopathy. If you have a stomach ache, you should take a solution of some herb that in high doses will cause a stomach ache but is so dilute that there may not be molecules of the herb present in the water or alcohol base. When you purchase a homeopathic remedy, you are likely purchasing really expensive water. Of course, merely being counter intuitive does not make it a sham. The fact that there are no good scientific studies validating the claims, that there is no theory explaining how it might work, and that people with real medical problems might forgo seeking science-based treatments is what makes it a dangerous sham.

Consumer protection lawyers around the country have discovered this fact and there are class-action lawsuits pending against companies that sell homeopathic remedies. See here for info on that.

Oddly enough, I missed an episode in which this touched on customs law, which is why I have this opportunity to rant.

In the October 5, 2011 Customs Bulletin, there is a proposed revocation of a tariff classification ruling on homeopathic remedies. According to Customs, "These products are homeopathic remedies for various psychosomatic ailments such as worry; apprehension; nervous tension; fear of failure; lack of
courage, lack of confidence, lack of presence of mind, lack of focus, and many similar complaints. They are not indicated to counteract physical ailments such as cancer or other illnesses; to the contrary, many of the merchandise’s labels contain warnings about seeking medical attention if the condition at
issue persists." The products for humans were labeled as bringing "courage and calm to face things that frighten or worry you, also aids the shy and the timid." Some were labeled to help "manage everyday stress."

In HQ H086082 (Oct. 15, 2010), Customs and Border Protection classified certain homeopathic remedies consisting of plant extracts in subheading 2208.90.80 as "undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol." Another homeopathic product, the "Rescue Remedy for Pets," was classified as a chemical product or preparation not elsewhere specified. Homeopathic pills for humans were classified in Heading 2106 as food preparations. In other words, none of these products were classified as medicaments of Heading 3004. The ruling even makes the somewhat editorial comment that the marketing toward "psychosomatic" conditions "emphasize the subject merchandise’s use as a remedy for general, non-physical ailments, and also underscore the fact
that they cannot replace medical science for the treatment of physical diseases." Now that I have seen that decision, the Annoying Science Guy shouts: "A victory for science and evidence-based medicine."

You should know that for tariff classification purposes, "medicaments" are for "therapeutic or prophylactic uses" and include "pastilles, tablets, drops, etc. of a kind suitable only for medicinal purposes, such as those based on [sulfur], charcoal, sodium tetraborate, sodium benzoate, potassium chlorate or magnesia . . . ." 3004 excludes infusions of herbs and herbal teas having laxative, diuretic, or other physiological effects or claiming to provide general health or well-being.

Here's the problem, in proposed H145541, which I think just became final, Customs revered course. It did so because it believes 3004, the medicament provision, to be a "use provision." As you probably know, that means that classification in 3004 depends upon the principal use of products of that class or kind in the United States at the time of exportation. Evidence of principal use includes:

  1. the physical characteristics of the goods
  2. the expectations of the ultimate purchasers
  3. channels of trade
  4. the environment of sale
  5. usage of the merchandise
  6. the economic practicality of so using the imported product
  7. recognition in the trade
If you think about those factors, you'll see where this is going. What's missing from the legal analysis? The fact that the merchandise actually performs the function for which it is used! Built into these factors is probably an assumption of economic rationality stating that people will not use a product in a way that it does not work. Unfortunately, that is not true with homeopathy, plastic holographic energy bracelets, perpetual motion machines, or miracle devices to improve gas mileage. 

In the proposed revocation, Customs did an admirable job of reviewing each of the factors. It found that homeopathic remedies belong to the class or kind of goods that are prepared for therapeutic or prophylactic use rather than food or supplements. This was based on the marketing of these products as drugs [Note: that's my characterization, not CBP's] and the consumer expectation that they provide a therapeutic or prophylactic benefit. Customs and Border Protection did a public service by explaining the "Law of Infinitesimals" that govern homeopathic dilutions and by stating that there its labs have been unable to detect the extract in the preparation. Maybe that will raise some awareness.

In the end, though, Customs was bound by the law and ruled that these products are classified for tariff purposes in heading 3004 as medicaments. As a matter of law, I think CBP is correct. This is an unfortunate victory for the homeopathy industry because there is a substantial reduction in the rate of duty. Moreover, I fear this will result in some sort of statement that the United States government now classifies these products as medicaments, even though the tariff classification says nothing about effectiveness. 


Sarah said...

Regarding your opening rant, might I add that ingesting tea from something you’re allergic to reportedly cures allergies?

I suspect that’s if it doesn’t kill you first.

Lowell DeFrance said...

This is interesting. Nice find. I need to see if they over looked my ruling request H002847 from 2008 or if I should make a request for reconsideration.

Thanks Larry