CLA-2 CO:R:C:T 955887 NLP
Mr. Victor Toso
783 NE Harding Street
Minneapolis, Minnesota 55413
RE: Reconsideration of HRL 955010; Lumbarjack; headings 6307,
8708 and 9021; ENs to heading 9021; orthopedic device;
automobile accessory
Dear Mr. Toso:
This is in response to your letter dated February 3, 1994, in
which you requested the reconsideration of Headquarters Ruling
Letter (HRL) 955010, dated December 14, 1993, in which Customs
classified the "Lumbarjack" back support as an other made up
article in heading 6307, Harmonized Tariff Schedule of the United
States (HTSUS). A sample of the Lumbarjack was submitted for our
examination and will be returned to you with this ruling. In
addition, you have provided us with product literature, a video,
a survey performed by your company at the American Academy of
Orthopedic Surgeons conference and three studies on your Back-Up
product. Moreover, on March 24, 1994, you met with my staff
attorneys to discuss your position and to demonstrate the use of
the Lumbarjack.
FACTS:
The submitted article is called the Lumbarjack and it consists
of a large belt and a long strap attached to each side of the belt.
The belt is 38 inches long and six inches wide with a firm but not
rigid back pad measuring 13-1/2 inches long and an elastic pad with
velcro. Each strap is two inches wide and has two adjustable
buckles. The Lumbarjack also has two knee pouches formed by two
elastic bands measuring three inches wide each and a loop that goes
over the wearer's foot.
According to the information you provided, this product is
designed to provide support and comfort for the lower back while
driving. The Lumbarjack support system uses reverse pressure from
the knees to support the back while keeping the legs free for a
full range of inhibited motion. In addition, this item converts
to an adjustable support belt for lifting when the leg straps are
detached.
You stated that your first market for this item is persons in
the medical field. You also sell it at trade shows, state fairs,
through mail order and infomercials. You do not sell it to
retailers because this product needs to be demonstrated and
retailers will not take the time to do this.
In HRL 955010 we held that the Lumbarjack was not classifiable
as an orthopedic device in heading 9021, HTSUS, nor was it
classifiable as an automobile accessory in heading 8708, HTSUS.
We determined that the Lumbarjack was classified in subheading
6307.90.9986, HTSUS, which provides for "[o]ther made up articles,
including dress patterns: [o]ther: [o]ther: [o]ther: [o]ther:
[o]ther."
In your submissions and in the meeting, you stated that it is
your position that the Lumbarjack is an orthopedic device and
should be classified in heading 9021, HTSUS. In the alternative,
this article should be classified as an automobile accessory in
heading 8708, HTSUS. You presented three main arguments in support
of your position:
1. The Lumbarjack has a combination of adjustable straps,
buckles and elastic and webbing loops that makes it
distinguishable from ordinary corsets and belts. The
combination of these features provides a unique
pressure transference system which combines the use of
both the knees and back. This system sets the product
apart from ordinary corsets and belts.
2. The purpose of the elastic part of the Lumbarjack is to
allow the driver flexibility and mobility and in no way
contributes to the effectiveness of the product in
providing back support. Therefore, this item should
not be excluded from heading 9021, HTSUS, based on
Legal Note 1(b) to Chapter 90, HTSUS.
3. The Lumbarjack should be considered an automobile
accessory for the purposes of heading 8708, HTSUS, as
it is exclusively designed for driving and it should
not make any difference whether it is attached to the car or
the driver.
In attempting to demonstrate that this item is an orthopedic
device, you also provided us with the results of a survey conducted
by your company at the American Academy of Orthopedic Surgeons
(AAOS) conference in February 1994. You also point out that,
before marketing your products, the FDA has required you to
register your products with them as orthopedic orthoses and comply
with their labeling requirements. Moreover, your trademark rights
for this product have been registered in a class providing for
orthopedic devices.
ISSUE:
Whether the Lumbarjack support is classifiable as an
orthopedic device in heading 9021, HTSUS, or as an accessory to a
motor vehicle in heading 8708, HTSUS, or as an other made up
article in heading 6307, HTSUS?
LAW AND ANALYSIS:
Heading 9021, HTSUS, provides for orthopedic appliances and
other appliances which are worn or carried, or implanted in the
body to compensate for a defect or disability. The Harmonized
Commodity Description and Coding System Explanatory Notes (ENs) to
Heading 9021 state that orthopedic appliances are for:
(i) Preventing or correcting body deformities; or
(ii) Supporting or holding organs following an illness or
operation.
They include:
(11) Appliances for correcting scoliosis and curvature of
the spine as well as all medical or surgical corsets
and belts (including certain supporting belts)
characterized by:
(a) Special pads, springs, etc., adjustable to fit the
patient
(b) The materials of which they are made (leather,
metal, plastics, etc.); or
(c) The presence of reinforced parts, rigid pieces of
fabric or bands of various widths.
The special design of these articles for a
particular orthopaedic purpose distinguishes them from
ordinary corsets and belts, whether or not the latter
also serve to support or hold.
Although the instant merchandise may offer relief for many
back related problems and may be recommended by orthopedists and
physical therapists, this item does not constitute an orthopedic
appliance for tariff purposes. The information that we have
indicates that it (1) provides support and comfort for the lower
back while driving; (2) alleviates backache and strain; and (3)
eliminates fatigue. Furthermore, it is clear that the item does
not have the support mechanisms, i.e., metal reinforcements,
adjustable springs and rigid parts, that distinguish the items
contemplated by the above ENs to heading 9021 from other articles
that may have medical uses. We note that the items classified in
HRL 556580, dated June 29, 1992, were more specialized in terms of
their design and adjustability than the Lumberjack. For example,
the hernia belt was used by individuals who have suffered from an
inguinal rupture. Inguinal trusses are one of the exemplars in the
ENs for 9021, HTSUS. While the sacro-iliac belt was used to help
relieve lower back pain and spasm, provide support and could be
used as a posture aid, the many adjusting devices on the product
distinguished it from an ordinary belt and made it akin to items
like corset trusses with various special features. Therefore, it
is our position that, while the Lumbarjack does have features that
make it adjustable for the wearer, we do not believe that the
features present are sufficient to make it an orthopedic appliance.
Thus, it is not akin to the exemplars cited in the ENs and is not
of the same class or kind as the orthopedic appliances covered by
this provision.
Furthermore, it is our position that the item may at best be
helpful in alleviating muscle spasms and back pain; however, there
is no indication that it will prevent or correct any deformities
that may result from back related problems, nor is there any
evidence that it is used to hold or support organs following an
illness or operation. While you have presented responses from a
survey conducted at the AAOS conference to demonstrate that the
Lumbarjack could be used for orthopedic purposes, we do not believe
that this qualifies the Lumbarjack as an orthopedic device. First,
we note that the Lumbarjack was not the only product that was the
subject of the survey. Therefore, it is possible that some of the
positive answers to the first three questions, which dealt with the
ENs discussion of the term "orthopedic", could have been directed
more toward one product than another. Second, as we have stated
before in HRL 081639, dated August 25, 1989, the fact that doctors
may be using an item for medical purposes does not mean that it
meets the guidelines set forth for orthopedic appliances.
Moreover, we also stated 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.
As we stated in HRL 955010, these items are akin to lumbar
support belts that we have classified in heading 6307, HTSUS. For
example in HRL 952841, dated January 26, 1993, we classified the
"Bolen Work Rite Back Support System" in heading 6307, HTSUS. This
article measured 35 inches by 9 inches at its widest point and
tapered to four inches at either end. The middle section consisted
of heavy elastic knit fabric with four vertical stays. Each end
section had a vertical stay made from cellular foam
laminated on the outer surface with hook and loop fabric, and on
the inner surface with knit man-made fabrics. A large rectangular
tab of hook and loop fabric was sewn to one end and used to secure
the belt. It also had two elastic fabric outer bands each of which
was sewn at one end to the rear center. The narrow bands extended
around either side and with the use of hook and loop end tabs,
provided additional tension adjustment for the wearer. It also had
permanently attached adjustable and elasticized suspenders. The
back support delivered firm and comfortable support to the lower
back and it promoted proper posture during lifting, standing and
bending. While this belt did not use the knee and back combination
in providing relief to the wearer, it has similar mechanisms for
adjustments and its use is akin to the that of the Lumbarjack. See
also, HRL 952829, dated February 19, 1993 and HRL 952201, dated
October 26, 1992, which classified similar articles in subheading
6307.90.9986, HTSUS.
It also remains our position that the Lumbarjack is not an
automobile accessory classifiable in heading 8708, HTSUS. While
you maintain that the item is exclusively designed for driving,
the product literature tells us that it can be used with the leg
straps for driving and without the legs straps for lifting.
Therefore, these articles are not necessarily identifiable as being
suitable for use solely or principally with automobiles.
Furthermore, the effectiveness of this article is applied directly
to the wearer, not the vehicle. Although the comfort and health
of the driver might be enhanced by wearing this while driving, it
is still a personal article of wear. The product is obviously not
designed or intended to complement the operation of the vehicle.
The Lumbarjack was designed with a person in a vehicle in mind, not
the vehicle itself.
Finally, in your submission you stated that the FDA has
required you to register your products with them as "orthopedic
orthoses". Our classification of an article as being used for
orthopedic purposes is not dependent upon or in any way related to
that of the FDA or any other government agency. See, Marine
Products Co. v. United States, 42 Cust. Ct. 154, 155, C.D. 2080
(1959), (which states that "[c]haracterization of imported
merchandise by governmental agencies for other than tariff purposes
does not determine tariff classification".) Moreover, in HRL
086139, we stated the following: " ...proof of Food and Drug
registration is not a governing factor in Customs classification
of orthopedic appliances. The Customs Service operates under
different laws than those under which the Food and Drug rulings are
issued. Interpretations under laws other than those relating to
tariff classification are not determinative of Customs
classification disputes."
HOLDING:
HRL 955010 is affirmed. The Lumbarjack support is
classifiable in subheading 6307.90.9986, HTSUS. The rate of
duty is 7% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division