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HQ 087213


September 18, 1990

CLA-2 CO:R:C:G 087213 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.2000

Mr. Robert M. Ross
Accu-Back, Inc.
1475 East Del Amo Bl.
Carson, CA 90746

RE: Orthopedic Back Support Pillows

Dear Mr. Ross:

This letter is in response to your inquiry, dated May 15, 1990, concerning the tariff classification of several types of orthopedic pillows under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). No samples were submitted along with your request.

FACTS:

The merchandise the subject of this ruling request consists of various types of back support pillows. Due to the fact that we have not received a request for a ruling concerning a particular item, we cannot issue a binding classification ruling at this time, and therefore, this ruling is merely advisory as to the kind of articles that you intend to import. Based on the literature provided to our office, it appears that the pillows are made of a man-made fiber and filled with a chemical component which is referred to as "Memory Foam." The literature also indicates that some of the back support pillows are equipped with adjustable straps and flexible side panels. The merchandise is advertised as offering relief for most back related problems.

ISSUE:

Whether the merchandise at issue is classifiable in Heading 9021, HTSUSA, as orthopedic appliances or rather in Heading 9404, HTSUSA, as pillows, cushions and similar furnishings.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

Heading 9021, HTSUSA, provides specifically for orthopedic appliances, including crutches, surgical belts, and trusses, among other things. The Explanatory Notes constitute the official interpretation of the tariff at the international level. The Explanatory Notes to Heading 9021, HTSUSA, state the following:

(I) ORTHOPAEDIC APPLIANCES

These are appliances for:

(i) Preventing or correcting bodily deformities; or

(ii) Supporting or holding organs following an illness or operation.

Similarly, under the Tariff Schedules of the United States (TSUS), Customs has maintained the position that orthopedic appliances are generally used in the medical treatment of a physical ailment and are body supports which are worn on the person. See Headquarters Ruling Letter (HRL) 058883, dated March 23, 1979 (air cushion designed for back support classified under the provision for pneumatic mattresses and other inflatable articles, not specifically provided for, in item 790.39, TSUS). Furthermore, orthopedic appliances are usually obtained at the direction of a physician at certain medical supply outlets which have personnel specially trained to measure and fit the appliance for the individual patient. Articles which are available in ordinary retail stores for use in alleviating sprains or strains are not, for purposes of tariff classification, considered orthopedic devices. See HRL 058970, dated May 7, 1978 (inflatable air cushion designed for back support classified under the provision for pneumatic mattresses and other inflatable articles, not specifically provided for, in item 790.39, TSUS).

In HRL 081639, dated August 25, 1989, Customs held that a "Nada-Chair" back sling did not constitute an orthopedic appliance for tariff purposes. In that case, the merchandise was described as a textile-covered foamed plastic back pad and similar but smaller knee pads. The back pad and knee pads are connected by textile straps. The user in a sitting posture can adjust the straps to maintain a tension in the straps and keep the pads in place. The importer stated that the purpose of the back sling is to reduce back strain and fatigue and to promote good posture while in a seated position. Customs held that despite the fact that doctors may be using the merchandise for medical purposes, that fact alone would not meet the guidelines set forth for orthopedic appliances. Moreover, Customs argued in that case 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.

Although the instant merchandise may offer relief for many back related problems and may be recommended by orthopedists, chiropractors and physical therapists, the back support pillows do not constitue orthopedic appliances for tariff purposes. The information that we have indicates that the back support pillows are designed to perform the following functions: "(1) alleviate backache and strain; (2) eliminate fatigue; and (3) reduce aggravating pressure points at the lower back region. Furthermore, it is clear that the back support pillows do not have the support mechanisms, i.e., metal reinforcements, adjustable springs, and rigid parts, that distinguish the items contemplated by the Explanatory Notes to Heading 9021, HTSUSA, from other articles that may have medical uses. The items in consideration may at best be helpful in alleviating muscle spasms and back pain; however, there is no indication that they prevent or correct any deformities that may result from back related problems, nor is there any evidence that they are used to hold or support organs following an illness or operation. Thus, the sample back support products do not fall within the coverage of Heading 9021, HTSUSA.

Heading 9404, HTSUSA, provides in part for pillows, cushions and similar furnishings. The sample back supports and lumbar cushions are described by this language since they are considered to be pillows or cushions, and are "stuffed" with a chemical component which is described as "Memory Foam." Similar articles which can be used on most chairs or seats, including car seats, have been classified in subheading 9404.90.2000, HTSUSA, as pillows or cushions. See HRL 080873, dated April 21, 1988 (cushion used on most chairs and car seats to provide support for the lower back classified under the provision for other pillows, cushions and similar furnishings); HRL 080819, dated February 1, 1988 (pillow usable on any seat back, including an automobile seat back, to support the head was classified under the provision for other pillows, cushions and similar furnishings).

The General Rules of Interpretation of the Harmonized Tariff Schedule, the Section and Chapter Notes and the first six digits of the Harmonized System constitute the international nomenclature which all member nations must apply in conformity with the International Convention. While the Harmonized Tariff Schedule seeks uniformity in classification systems, participating nations are, nonetheless, free to decide the ultimate classification of goods entering their boundaries. A participating member nation's classification ruling may be submitted to a country with a ruling request as evidence of how similar merchandise has been classified under the HS by that country, however, participating nations are not legally bound by classification rulings of other countries.

The drafters of the nomenclature contemplated that disputes may arise over classification matters between participating member nations. Article 10 of the Convention on the HS provides specifically for an international dispute settlement mechanism. The process, however, is not one of adjudication, but rather one of conciliation and negotiation. Disputes are to be submitted to the Harmonized System Committee which will make recommendations for settlement. The parties to a dispute may consequently agree to be bound by these recommendations.

HOLDING:

Based on the foregoing analysis, it is the determination of this office that the instant merchandise is not an orthopedic appliance within the purview of that term as it is used in the HTSUSA. Specifically, it does not prevent or correct bodily deformities and it does not support or hold organs following an illness or operation. Consequently, the back support devices are properly classified under subheading 9404.90.2000, HTSUSA, which provides for pillows, cushions and similar furnishings, provided that the merchandise is not of cotton. Articles classified under this subheading are subject to a rate of duty of 6 percent ad valorem.

Sincerely,

John Durant, Director

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