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HQ 955887


August 4, 1994

CLA-2 CO:R:C:T 955887 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9986

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:

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


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