Victoria’s Secret Decision: Opportunity for Importers of Cotton Camisoles with Shelf Bras
Kelley Drye Client Advisory
For importers of cotton camisoles with shelf bras, last week’s Court of Appeals for the Federal Circuit (CAFC) decision opens the door to reduced Customs duties after seven years of litigation. In Victoria’s Secret Direct LLC v. United States (2013-1468) the CAFC affirmed the Court of International Trade decision with a middle of the road approach.
Prior to the litigation, Customs and Border Protection (Customs) was classifying cotton camisoles with shelf bras as tank tops under 6109.10.00, HTSUS at 16.5% duty. In November, 2007, Victoria’s Secret filed an action in the Court of International Trade (CIT) contesting the classification. The intimate apparel importer argued that the top served a dual purpose of coverage and support and; therefore, should be classified under 6212.90.00, HTSUS at 6.6% as a brassiere. In the alternative, the company argued for classification under the residual provision, heading 6114.20.00, HTSUS at 10.8% duty, as “other garments” knitted, of cotton.
The CIT determined that the top provides support to the bust of the wearer, but more coverage than a brassiere and the coverage is sufficient so that the garment can be worn in public without layers over the garment. Accordingly, the CIT held that the proper classification for the cotton tops is under 6114.20.00 as “other garments.” The intimate apparel company appealed to the CAFC which affirmed the CIT’s decision that the garment is designed for “two purposes, coverage and support.” The CAFC opined that its determination of whether the garments are “similar” to those listed under Heading 6212 (brassieres, girdles, corsets, braces etc.) requires it to identify the heading’s unifying properties. The CAFC concluded that “what unifies the list is that all of the listed items have support as their paramount function” and that the “essence of these findings is that these dual-function garments have too much of the non-support function to share the ‘essential characteristic’ of the items listed in heading 6212.” Having found that heading 6212 does not apply, the CAFC affirmed the CIT decision that the camisole with a shelf bra properly belongs under the residual provision of heading 6114.
Importers of cotton camisoles with shelf bras who have been classifying their merchandise under 6109 at 16.5% duty pending the outcome of this long litigation have an opportunity to recover paid duties by filing administrative protests and post-entry amendments and reclassifying their garments under 6114 at 10.8% duty.