CLA-2 CO:R:C:T 088940 HP
Mr. Steven Knox
District Director
U.S. Customs Service
Second & Chestnut Streets
Philadelphia, PA 19106
RE: Application for Further Review of Protest No. 1101-90-
000575. Dental floss is not an oral nor dental hygiene prepara-
tion. Yarn; put up for retail sale.
Dear Mr. Knox:
This is in reply to your memorandum of December 17, 1990,
transmitting CF 19 and related papers pursuant to your request
for Further Review of Protest No. 1101-90-000575.
FACTS:
The merchandise at issue consists of nylon dental floss,
imported from Ireland. We assume, for the purposes of this
ruling, that high tenacity nylon yarn with a twist of 5 or more
turns per meter was used. The merchandise was entered as fol-
lows:
Description of Merchandise Claimed Classification Appraised
Floss USA Unwaxed 55 yard Blister Pack. 3306.90.0000 5406.10.0090
Floss USA Litewax 55 yard Blister Pack.
OR
Floss USA Litewax 55 yard Blister Pack. 3306.10.0000
Floss USA Mint 55 yard Blister Pack
In addition to the merchandise described above, Protestant
states that Oral-B also imports floss in units of 200 yards on a
device specially designed to fit standard dental office floss
dispensers. This floss for professional use is not sold at
retail. This decision cannot rule upon this dispenser; Protest
Review Decisions can only address merchandise in those entries
which were originally protested.
ISSUE:
Whether dental floss is classified as filament yarn or
dental preparations under the HTSUSA?
LAW AND ANALYSIS:
Heading 3306, HTSUSA, provides for preparation for oral and
dental hygiene. The General Rules of Interpretation (GRIs) to
the HTSUSA govern the classification of goods in the tariff
schedule. GRI 1 states, in pertinent part, that "classification
shall be determined according to the terms of the headings and
any relative section or chapter notes ...." Note 2 to Chapter
33, HTSUSA, states:
Headings 3303 to 3307 apply, inter alia, to
products, whether or not mixed (other than
aqueous distillates and aqueous solutions of
essential oils), suitable for use as goods of
these headings and put up in packings of a
kind sold by retail for such use.
The dental floss is clearly "put up in packings of a kind
sold by retail." Whether the floss is a "product" covered by the
note, however, we must determine if the floss is, as the terms of
the heading require, a "preparation for oral or dental hygiene."
Protestant has cited Webster's Third New International
Dictionary of the English Language, unabridged (1986), which
defines preparation as "5 : something that is prepared :
something made, equipped, or compounded for a specific
purpose...." Following this definition, Protestant states that:
[i]t is beyond dispute that dental floss is
something prepared, made, or equipped for a
specific purpose, i.e., oral or dental
hygiene. Therefore, dental floss comes
clearly within the scope of the dictionary
definitions of preparation.
In United States v. P. John Hanrahan, Inc., Trans., Wm.
Bernstein Co., Inc., 45 C.C.P.A. 120, C.A.D. 684 (1958),
reversing C.D. 1900, the Court of Customs and Patent Appeals
undertook the definition of preparations; specifically "edible
preparations." The merchandise at issue in that case was
vitalized wheat (or gum) gluten, which is prepared from wheat
flour by removing the starch and drying and powdering the
residue. This gluten cannot, as a practical matter, be eaten by
itself but is commonly added to wheat flour to produce a high
protein mixture which is used in making bread and other foods for
dietary purposes. Chief Judge Johnson held for the Court that
the gluten was an edible preparation, stating that:
we are convinced that in a case such as this,
where the imported merchandise is a distinct
and recognized article of commerce, having an
individual name, and which is produced from a
raw material by a definite series of steps,
said merchandise is a preparation. The
process by which the wheat gum gluten is made
is not merely a removal of impurities, but is
analogous to the separation of menthol from
the peppermint plant, involved in McKesson &
Robbins v. United States, 3 Cust. Ct. Appls.
515, T.D. 33167, or the separation of
scammony resin from scammony root in United
States v. Hillier's Son Co., 14 Cust. Ct.
Appls. 216, T.D. 41706. The products
resulting from these processes were held to
be preparations, and the reasoning employed
in the cited decisions is likewise applicable
to the instant merchandise. [Emphasis added.]
It is our opinion that the Chief Judge's use of the language
"in a case such as this," plus his citation to other food
preparation decisions, compels us to hold that the word
"preparation" is not meant to be viewed apart from its
accompanying language; edible food preparations, manicure
preparations, shaving preparations, etc. Use of the
aforementioned dictionary definitions, i.e., anything "made" is a
preparation, therefore anything "made for dental hygiene" is a
dental hygiene preparation, would unjustifiably expand the
intended coverage of heading 3306, HTSUSA.
The Explanatory Notes (EN) to the HTSUSA constitute the
official interpretation of the tariff at the international level.
While not legally binding, they do represent the considered views
of classification experts of the Harmonized System Committee. It
has therefore been the practice of the Customs Service to follow,
whenever possible, the terms of the Explanatory Notes when
interpreting the HTSUSA. The EN to heading 3306 provides:
This heading covers preparations for
oral and dental hygiene such as:
(I) Dentifrices of all types:
(1) Toothpastes and other
preparations for the teeth,
which contain agents with
abrasive properties, whether
or not they are used by
dentists and whether they are
used for cleaning or polishing
the teeth or for other
purposes such as anticaries
prophylactic treatment;
(2) Denture cleaners, i.e.,
preparations for cleaning or
polishing dentures, whether or
not they contain agents with
abrasive properties.
(II) Mouth washes and oral perfumes.
(III) Denture fixative pastes, powders
and tablets.
It is clear from an examination of the above-listed
exemplars that dental floss is not the type of preparation
classifiable in heading 3306. All are liquid, powder, and/or
chemical compounds designed to act upon certain aspects of the
mouth.* Although floss also is used within the same body cavity,
it is a tool, not a "dental preparation," to be used therein.
Compare the above-listed exemplars with toothbrushes, gum
massagers, and dental instruments; the latter collection all
classified outside heading 3306, HTSUSA. Dental floss,
therefore, is not classifiable in heading 3306, HTSUSA.
Footnote * On Protestant has suggested that since other "prepara-
tion" headings within Chapter 33, HTSUSA, provide for
preparations which are more than solutions - specifically,
perfumed papers and papers impregnated, coated or covered with
cosmetics, of heading 3307, HTSUSA - the inclusion of dental
floss as a preparation in heading 3306 is consistent with the
above references. We disagree. Throughout the Chapter, the non-
chemical/non-solution material incorporated within the
"preparation" is present merely as a carrying medium for the
chemical/solution. Antithetically, the non-chemical/non-solution
material in dental floss, the man-made filaments (as opposed to a
wax or mint-flavored coating), is the attribute which
distinguishes what the article is; it is indispensable to the
structure and condition of the floss. Footnote * Off
Heading 5406, HTSUSA, provides for man-made filament yarn,
put up for retail sale. Note 4(B) to Section XI, HTSUSA,
provides several exceptions to the term "put up for retail sale,"
including, inter alia, "[s]ingle yarn of any textile
material...." Explanatory Note (I)(B)(1) to Section XI, HTSUSA,
defines "single yarns" as:
(i) ... yarns composed ... of:
* * *
(b) One filament (monofilament) of
headings 54.02 to 54.05, or
two or more filaments
(multifilament) of heading
54.02 or 54.03, held together,
with or without twist
(continuous yarns).
As the floss at issue meets this description, it is not classifi-
able as "put up for retail sale" in heading 5406, HTSUSA.
In NYRL 831968 of October 6, 1988, and NYRL 827051 of
February 5, 1988, we classified dental floss under heading 5406,
HTSUSA. These rulings no longer reflect the position of the
Customs Service, and action will be taken to so advise the
recipients of those rulings.
HOLDING:
As a result of the foregoing, the instant merchandise is
classified under subheading 5402.10.3040, HTSUSA, textile
category 606, as synthetic filament yarn (other than sewing
thread), not put up for retail sale, including synthetic
monofilament of less than 67 decitex, high tenacity yarn of nylon
or other polyamides, single yarn, multifilament, with twist of 5
turns or more per meter. The applicable rate of duty is 10
percent ad valorem.
You are instructed to deny the protest, except to the extent
reclassification of the merchandise is indicated above results in
a partial allowance. A copy of this decision should be forwarded
to the Protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division