Classification Pedagogy

The Court of International Trade, like all courts, sometimes puts on its collective professor's hat and does a little explicit teaching to the trade and, possibly, to the Court of Appeals for the Federal Circuit. I am not sure who was the intended audience for this lesson, but Telebrands Corp. v. United States is pretty explicit about the lesson for the day.

The underlying issue in Telebrands is the classification of something known as the PedEgg pedicure set. This is one of America's great "As Seen On TV" products; just behind the pocket fisherman, the in-the-egg egg beater, and spray-on hair. 

The PedEgg is similar to a cheese grater used to remove hard calloused skin from the foot. The genius of the PedEgg is that it conveniently collects the skin remnants inside the plastic egg shaped body. Important for our purposes, it also comes with two adhesive emery pads that are intended to be applied to the PedEgg body and used to finish the skin surface.

The Court was clearly interested in making a point, because it started its analysis with this statement (footnotes omitted):

Because there seems to be confusion in some of the Court cases about how classification is to proceed in general, the court sets forth the background here. Resolution of classification disputes under the HTSUS is guided by its General Rules of Interpretation (“GRI”). Honda of Am. Mfg. v. United States, 607 F.3d 771, 773 (Fed. Cir. 2010). What is clear from the legislative history of the World Customs Organization (“WCO”) and case law is that GRI 1 is paramount. It provides in relevant part, “classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes.” GRI 1. GRI 2 references specific issues such as unfinished goods and mixtures, not relevant here, and subsequent GRIs refer to ways of classifying goods which fit into more than one heading. GRI 2–3. The Explanatory Notes to GRI 1 state that “the terms of the headings and any relative Section or Chapter Notes are paramount, i.e., they are the first consideration in determining classification” and the GRIs are to be considered in numerical order. WCO, Explanatory Note V(a) to GRI 1, HTS. The headings and relevant notes are to be exhausted before inquiries, such as those of GRI 3, are considered, e.g., specificity or essential character. The HTSUS is designed so that most classification questions can be answered by GRI 1, so that there would be no need to delve into the less precise inquiries presented by GRI 3. Similarly, GRI 6 requires classification among the competing subheadings according to the terms of the subheadings and related notes and in the same way and order as in the previous GRIs. Thus, only after exhausting the terms of the subheadings and related notes would one turn to GRI 3 to choose between two or more potentially applicable subheadings.

All of which is true and too often forgotten. When you have a product that can be described by two or more headings, it is a mistake to ask which is more specific or to classify based on essential character until you have completely exhausted the legal notes applicable under General Rule of Interpretation 1.

In this case, the importer wanted to classify the PedEgg and the two emery pads as a manicure or pedicure set of 8214.20.90 as opposed to an other article of cutlery of 8214.90.90. That means that the product must constitute a set, and that is where the controversy arose.

According to the Court, this collection of items is not a set. The Court adopted a definition from Merriam-Webster.com that "a set." for GRI 1 purposes, is a collection of items to be used together or a group of things that belong together and are so used. In this case, the PedEgg is a single article to which the emery pads are intended to be affixed. They cannot be used on their own and are useful only when joined to the PedEgg shell. Thus, the Court found that the PedEgg and emery boards is a unitary item of cutlery rather than a collection of items to be used together.

There was another issue as to whether the PedEgg came in a container sufficient to satisfy the requirements of the set subheading. But, because the Court found it not to be a set, that issue became moot.

Often times people ask me to explain what I do for a living. I struggle to find good examples of classification cases that will make sense to someone who has never seen the HTSUS. This case will allow me to stop talking about shelf-bras and mellorine.