CLA-2 CO:R:C:G 087213 WAW
Mr. Robert M. Ross
Accu-Back, Inc.
1475 East Del Amo Bl.
Carson, CA 90746
RE: Orthopedic Back Support Pillows
Dear Mr. Ross:
This letter is in response to your inquiry, dated May 15,
1990, concerning the tariff classification of several types of
orthopedic pillows under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA). No samples were submitted
along with your request.
FACTS:
The merchandise the subject of this ruling request consists
of various types of back support pillows. Due to the fact that
we have not received a request for a ruling concerning a
particular item, we cannot issue a binding classification ruling
at this time, and therefore, this ruling is merely advisory as to
the kind of articles that you intend to import. Based on the
literature provided to our office, it appears that the pillows
are made of a man-made fiber and filled with a chemical component
which is referred to as "Memory Foam." The literature also
indicates that some of the back support pillows are equipped with
adjustable straps and flexible side panels. The merchandise is
advertised as offering relief for most back related problems.
ISSUE:
Whether the merchandise at issue is classifiable in Heading
9021, HTSUSA, as orthopedic appliances or rather in Heading 9404,
HTSUSA, as pillows, cushions and similar furnishings.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.
Heading 9021, HTSUSA, provides specifically for orthopedic
appliances, including crutches, surgical belts, and trusses,
among other things. The Explanatory Notes constitute the
official interpretation of the tariff at the international level.
The Explanatory Notes to Heading 9021, HTSUSA, state the
following:
(I) ORTHOPAEDIC APPLIANCES
These are appliances for:
(i) Preventing or correcting bodily deformities; or
(ii) Supporting or holding organs following an illness or
operation.
Similarly, under the Tariff Schedules of the United States
(TSUS), Customs has maintained the position that orthopedic
appliances are generally used in the medical treatment of a
physical ailment and are body supports which are worn on the
person. See Headquarters Ruling Letter (HRL) 058883, dated March
23, 1979 (air cushion designed for back support classified under
the provision for pneumatic mattresses and other inflatable
articles, not specifically provided for, in item 790.39, TSUS).
Furthermore, orthopedic appliances are usually obtained at the
direction of a physician at certain medical supply outlets which
have personnel specially trained to measure and fit the appliance
for the individual patient. Articles which are available in
ordinary retail stores for use in alleviating sprains or strains
are not, for purposes of tariff classification, considered
orthopedic devices. See HRL 058970, dated May 7, 1978
(inflatable air cushion designed for back support classified
under the provision for pneumatic mattresses and other inflatable
articles, not specifically provided for, in item 790.39, TSUS).
In HRL 081639, dated August 25, 1989, Customs held that a
"Nada-Chair" back sling did not constitute an orthopedic
appliance for tariff purposes. In that case, the merchandise
was described as a textile-covered foamed plastic back pad and
similar but smaller knee pads. The back pad and knee pads are
connected by textile straps. The user in a sitting posture can
adjust the straps to maintain a tension in the straps and keep
the pads in place. The importer stated that the purpose of the
back sling is to reduce back strain and fatigue and to promote
good posture while in a seated position. Customs held that
despite the fact that doctors may be using the merchandise for
medical purposes, that fact alone would not meet the guidelines
set forth for orthopedic appliances. Moreover, Customs argued in
that case that the fact that a product is aimed at a medical
market does not necessarily establish the medical nature of the
product for tariff purposes.
Although the instant merchandise may offer relief for many
back related problems and may be recommended by orthopedists,
chiropractors and physical therapists, the back support pillows
do not constitue orthopedic appliances for tariff purposes. The
information that we have indicates that the back support pillows
are designed to perform the following functions: "(1) alleviate
backache and strain; (2) eliminate fatigue; and (3) reduce
aggravating pressure points at the lower back region.
Furthermore, it is clear that the back support pillows do not
have the support mechanisms, i.e., metal reinforcements,
adjustable springs, and rigid parts, that distinguish the items
contemplated by the Explanatory Notes to Heading 9021, HTSUSA,
from other articles that may have medical uses. The items in
consideration may at best be helpful in alleviating muscle spasms
and back pain; however, there is no indication that they prevent
or correct any deformities that may result from back related
problems, nor is there any evidence that they are used to hold or
support organs following an illness or operation. Thus, the
sample back support products do not fall within the coverage of
Heading 9021, HTSUSA.
Heading 9404, HTSUSA, provides in part for pillows, cushions
and similar furnishings. The sample back supports and lumbar
cushions are described by this language since they are
considered to be pillows or cushions, and are "stuffed" with a
chemical component which is described as "Memory Foam." Similar
articles which can be used on most chairs or seats, including car
seats, have been classified in subheading 9404.90.2000, HTSUSA,
as pillows or cushions. See HRL 080873, dated April 21, 1988
(cushion used on most chairs and car seats to provide support for
the lower back classified under the provision for other pillows,
cushions and similar furnishings); HRL 080819, dated February 1,
1988 (pillow usable on any seat back, including an automobile
seat back, to support the head was classified under the provision
for other pillows, cushions and similar furnishings).
The General Rules of Interpretation of the Harmonized Tariff
Schedule, the Section and Chapter Notes and the first six digits
of the Harmonized System constitute the international
nomenclature which all member nations must apply in conformity
with the International Convention. While the Harmonized Tariff
Schedule seeks uniformity in classification systems,
participating nations are, nonetheless, free to decide the
ultimate classification of goods entering their boundaries. A
participating member nation's classification ruling may be
submitted to a country with a ruling request as evidence of how
similar merchandise has been classified under the HS by that
country, however, participating nations are not legally bound by
classification rulings of other countries.
The drafters of the nomenclature contemplated that disputes
may arise over classification matters between participating
member nations. Article 10 of the Convention on the HS provides
specifically for an international dispute settlement mechanism.
The process, however, is not one of adjudication, but rather one
of conciliation and negotiation. Disputes are to be submitted to
the Harmonized System Committee which will make recommendations
for settlement. The parties to a dispute may consequently agree
to be bound by these recommendations.
HOLDING:
Based on the foregoing analysis, it is the determination of
this office that the instant merchandise is not an orthopedic
appliance within the purview of that term as it is used in the
HTSUSA. Specifically, it does not prevent or correct bodily
deformities and it does not support or hold organs following an
illness or operation. Consequently, the back support devices are
properly classified under subheading 9404.90.2000, HTSUSA, which
provides for pillows, cushions and similar furnishings, provided
that the merchandise is not of cotton. Articles classified under
this subheading are subject to a rate of duty of 6 percent ad
valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division