Monday, September 29, 2014

Ruling of the (Last) Week 10: Botox Pas a Deux

For those of you who might not know it, botulism is bad for you. According to Wikipedia, it is a rare and potentially fatal condition caused by toxins produced by certain bacteria. A common cause of the rare condition is improper food preservation.

But, there is an upside to botulism, particularly for the Hollywood red carpet set and others worried about the perception that they may be aging. Where that perception is caused by fine lines on the forehead and face, the botulism toxin, when properly administered, might be just what the dermatologist ordered.

As it turns out, that means that some of this stuff is imported for cosmetic use. And therein lies the rub. We have botulism toxin imported for cosmetic use. How should that be classified? We get the answer from the current Customs Bulletin, in which CBP proposes to revoke its prior decision in Ruling N209720. The new ruling will be HQ 227295.

The two products here are FDA approved Botox and Botox Cosmetic. [Note from Larry: Botox is a registered trademarks of Allergan. CBP seemed very intent on making that known, so I will do the same.] The former is approved for various medical uses including the treatment of spasms, which makes sense since this stuff can paralyze you. The latter is injected into facial muscles to improve the look of lines. Botox has been classified in 3002.90.51 as a toxin. Botox Cosmetic has been classified in 3304.99.50 as a beauty preparation or preparation for the care of the skin (other than medicaments).

The two products are identical, but marketed differently. What to do? As in all such cases, start with the legal text.

Note 1 to Chapter 30 excludes from classification in that Chapter preparations of, among other things, Heading 3304. So, if Botox Cosmetic is properly in 3304, it cannot be classified in 3002.

The first question is whether Botox Cosmetic is a "preparation." While the term is not defined in the tariff itself, Customs and the Courts have previously held that a preparation is something that has been "prepared or made up for its appropriate use." Another definition is "something made, equipped, or compounded for a specific purpose." Botox Cosmetic has been created for the purpose of treating skin lines. So it qualifies as a preparation.

That leads to the next question of whether Botox Cosmetic is "for beauty and make-up" or "the care of the skin." This is where things get more interesting. The way Botox Cosmetic works is that when injected into the muscle under the skin, the muscle relaxes. That relaxation is what causes lines in the skin to appear less pronounced. That is wholly different than topical cosmetics and skin treatments. Because Botox Cosmetic does not beautify or treat the skin in a manner similar to make-up and topically applied products, it is not a "beauty or make-up preparation, or a preparation for the care of the skin."

That means that it is not included in Heading 3304 and leaves toxins of Heading 3002 as the correct classification.

One final note. You do not often see CBP make a joke (or even a quip) in a ruling. In this case, an unstated underlying assumption of the analysis is that removing facial lines is a beautifying treatment. In that context, all CBP said was "Without getting into whether wrinkles are beautiful in the eye of the beholder . . . ." That was enough to make me smile when I read it. Of course, I can move all my facial muscles, so that helped too.

1 comment:

Michelle Jolliffe, LCB said...

Great post! Thanks for sharing :) I gain a lot from reading your posts.