CLA-2 RR:CR:GC 962172 MGM
Ms. Anna Baar
Import Account Representative
American Shipping Company Inc.
140 Sylvan Avenue
Englewood Cliffs, NJ 07632
RE: Tariff Classification of Magnetic Bandages
Dear Ms. Baar:
This is in response to a letter from Mario Bussanich, former import account representative, dated August 19, 1998, on behalf of Dr. Leonard’s Healthcare, requesting a binding ruling, under the Harmonized Tariff Schedule of the United States (HTSUS), for an adhesive bandage containing magnets.
FACTS:
The merchandise is described as an adhesive strip of man-made material which contains 33 magnets placed along the length of the fabric. The item is 6¾ inches in length and 2¼ inches in width. It is intended to be used in “magnetic therapy” for the alleviation of pain, stiffness, and swelling. The directions which accompany this product state that one is to “[s]tick this band direct on the skin (do not do this if there is an open wound) covering the painful spot. Keep it there until you do not feel any pain any more.”
ISSUE:
What is the classification of the described article?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The merchandise is described as an “adhesive bandage.” Bandages and similar articles are typically classified in heading 3005, HTSUS, which reads as follows:
3005 Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices), impregnated or coated with pharmaceutical substances or put up in forms or packings for retail sale for medical, surgical, dental or veterinary purposes.
Under the rule of ejusdem generis, the phrase “similar articles” is limited to goods which “possess the essential characteristics or purposes that unite the articles enumerated eo nomine.” Totes, Inc. v. U.S., 69 F.3d 495, 498 (Fed. Cir. 1995) (citing Sports Graphics, Inc. v. United States, 24 F.3d 1390 (Fed. Cir. 1994)). The characteristic which unites the exemplars of this heading is their direct application to an open wound or irritated skin. Here, one is explicitly directed to avoid placing this item on an open wound. Furthermore, this heading is limited to items which are for “medical, surgical, dental or veterinary purposes.” The claimed relief of aches and pains provided by this product does not rise to the level of a medical treatment. Thus it is not properly classified in heading 3005, HTSUS.
Neither does any other heading describe this merchandise. Where goods cannot be classified according to GRI 1, the remaining GRIs are applied in order. GRI 2(b) states that "[a]ny reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances [and] any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3." EN GRI Rule 2(b) (XI) explains that "[t]he effect of the Rule is to extend any heading referring to a material or substance to include mixtures or combinations of that material or substance with other materials or substances [and] also to extend any heading referring to goods of a given material or substance to include goods consisting partly of that material or substance." In other words, if imported merchandise consists of a mixture or combination of materials or substances, it is treated as though described by the heading for each material or substance. However, if imported merchandise is a good (or article), it must be classified as a good (or article); if a good (or article) is composed of more than one material or substance, it is treated as though described by the heading for the good (or article) of each material or substance.
GRI 3 (b) states that goods which are prima facie classifiable under two or more headings and consist of different materials or are made up of different components shall be classified as if they consisted of the material or component which gives them their essential character. Factors which determine essential character may include bulk, quantity, weight, value, or the role of a constituent material in relation to the use of the goods. EN VIII to GRI 3. Here, the magnet performs the principal function of the merchandise which is to create a magnetic field. The adhesive patch merely holds the magnet in place. In addition, it is the magnet which accounts for the greater part of the item’s value. Thus, the essential character of the merchandise is found in the magnet. This is consistent with HQ 953264, dated March 30, 1994, in which refrigerator magnets, consisting of a plastic and metal component, were found to have their essential character imparted by the magnet and were classified in heading 8505, HTSUS.
Within heading 8505, this item falls in the provision for “permanent magnets.” This provision is divided into two categories, “of metal,” and “other.” The August 19, 1998, letter which requested this ruling does not describe the composition of the magnets. If the magnets are of ferrrite or some other non-metallic substance, the merchandise is classified as a permanent magnet “other” than of metal. See EN 85.05 (2) (which notes the distinction between metal and ferrite “...of metal or of agglomerated ferrite”). If the magnets are of metal, then the merchandise falls in the provision for permanent magnets of metal.
This is consistent with HQ 962611 and HQ 962612, dated May 4, 1999, which are scheduled to be published in the May 19, 1999, CUSTOMS BULLETIN (copies enclosed). These rulings classified similar articles in subheading 8505.19.00, HTSUS, as permanent magnets other than of metal.
HOLDING:
If the merchandise contains magnets of ferrite or some other nonmetallic substance, it is classified in subheading 8505.19.00, HTSUS, however if the merchandise contains magnets of metal, it is classified in subheading 8505.11.00, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division
enclosures