CLA-2 RR:CR:TE 966637 KSH
Robert A. Calandra, Esq.
Attorney at Law
4 Henning Drive
Fairfield, New Jersey 07004
RE: Tariff classification of Tensoplast® and Tensoplast Sport®
Dear Mr. Calandra: This letter is in reply to your correspondence of June 17, 2003, in which you request a binding ruling, on behalf of your client BSN Medical, on the tariff classification of a product line of bandages and tapes. Samples of two types of bandages, the Tensoplast® and Tensoplast Sport®, were submitted for our examination. This ruling is limited to the classification of the two samples submitted for classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). FACTS: The submitted samples are marketed as “elastic adhesive bandages”. They are of woven construction of 100% cotton yarns. The Tensoplast® and Tensoplast Sport® widths measure 6 cm by 3.75m long and 4.5m long (stretched), respectively. Unstretched both the Tensoplast® and Tensoplast Sport® measure 2.5m in length. The elastic nature of the fabric appears to be imparted by high-twist yarns woven under a degree of tension, then relaxed. The Tensoplast Sport® is a narrow woven fabric while the Tensoplast® appears to be slit to width from a wider woven fabric. The samples are coated with a pressure-sensitive adhesive substance that is visible to the naked eye. The Tensoplast® and Tensoplast Sport® are Class 1 FDA products.
Your client states that the Tensoplast® and Tensoplast Sport® will be principally sold to hospitals and clinics for the treatment of strains, sprains and fractures. However, your client acknowledges that the Tensoplast® and Tensoplast Sport® will also be marketed to college and professional sports teams. Your client states that their use is to immobilize joints and provide compression. Marketing Literature submitted with the samples indicates that they provide “functional strapping in sports traumatology (prevention and treatment of injuries) and other orthopedic conditions; strong support for joints, ligaments and muscles; compression bandage in phlebology and; fixation of splints. Your client has indicated that the Tensoplast® and Tensoplast Sport® are put up in forms or packing for retail sale. ISSUE: Whether the Tensoplast® and Tensoplast Sport® are classifiable in heading 3005, HTSUSA, as wadding, gauze, bandages and similar articles or in Chapter 59 as impregnated, coated, covered or laminated textile fabrics?
LAW AND ANALYSIS: Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings.
Heading 3005, HTSUSA, provides for “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.”
The HTSUSA does not define bandages, however, CBP has defined a bandage as a piece of material applied to a body part to make compression, absorb drainage, prevent motion, retain surgical dressing, or lend support to a wound. See New York Ruling (NY) I84715, dated August 8, 2002. In contrast, items that exclusively lend support to body parts are not classifiable in heading 3005, HTSUSA. These items do not immobilize body parts, act as compresses, or treat wounds.
Heading 3005, HTSUSA, is further segregable by two types of wadding, gauze, bandages and similar articles, namely, those impregnated or coated with pharmaceutical substances and those put up in forms for retail sale. Inasmuch as the Tensoplast® and Tensoplast Sport® are not impregnated or coated with pharmaceutical substances we need only consider whether the samples are put up for retail sale.
The EN to heading 3005, HTSUSA, states that wadding and gauze for dressings (usually of absorbent cotton) and bandages, etc., not impregnated or coated with pharmaceutical substances, are also classified in this heading, provided they are exclusively intended (e.g., because of the labels affixed or special folding) for sale directly without re-packing to users (private persons, hospitals, etc.) for use for medical, dental, or veterinary purposes.
The Tensoplast® and Tensoplast Sport® are not impregnated or coated with pharmaceutical substances but they are exclusively intended for direct sale without re-packing to users to provide compression, prevent motion, retain surgical dressings, or lend support to a wound.
Moreover, we note that both the Tensoplast® and Tensoplast Sport® packaging includes medical pictograms including an expiration date hourglass symbol and date, waterproof symbol, and symbols for temperature control and sunlight control. These symbols offer further evidence that the Tensoplast® and Tensoplast Sport® are intended for medical purposes.
The Tensoplast® and Tensoplast Sport® meet the requirements of heading 3005, HTSUSA, and are classifiable under subheading 3005.10.5000, HTSUSA, which provides for “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: Adhesive dressings and other articles having an adhesive layer: Other.” In accordance with Section VI, Section Note 2, which provides “… goods classifiable in…3005…by reason of being put up in measured doses or for retail sale are to be classified in [that] heading [ ] and in no other heading of the tariff schedule”, we need not entertain classification of the Tensoplast® and Tensoplast Sport® in Chapter 59, HTSUSA.
HOLDING:
The Tensoplast® and Tensoplast Sport® are classified under subheading 3005.10.5000, HTSUSA, which provides for “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: Adhesive dressings and other articles having an adhesive layer: Other.” The general column one rate of duty is free.
Sincerely
Myles B. Harmon, Director
Commercial Rulings Division