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HQ 965996




November 25, 2002

CLA-2 RR:CR:GC 965996 BJB

CATEGORY: CLASSIFICATION
TARIFF NO.: 3924.90.55

Mr. Daniel Shapiro
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901

RE: Lotion applicator; Massage apparatus

Dear Mr. Shapiro:

This is in response to your letter of September 17, 2002, to the Director, National Commodity Specialist Division, New York, New York, on behalf of Avon Products, Inc., (“Avon”), requesting the classification of a “lotion applicator,” under the Harmonized Tariff Schedule of the United States (“HTSUS”). Your letter, attachments, and sample were referred to this office for reply.

FACTS:

The subject article is identified as the “Amazing Lotion Applicator,” model #PP250687. You describe it as “a plastic hand-held massager and lotion applicator” for use during a shower or bath. It has a tubular extension-handle. The handle is made of plastic and measures approximately 13 inches long when fully extended. Attached to the top of the handle is a two-sided plastic disc (“head”). The head measures approximately three inches in diameter. One side of the head has a polyurethane sponge affixed to its exterior face (“sponge face”). The second side has three plastic roller balls.

A ½-inch deep compartment is formed between the underside of the roller ball face and the solid plastic underside of the sponge face. When the sponge side of the head is opened, the underside of the roller balls is exposed. Lotions, including bath gels and liquid soap, may be inserted into this space. Each exterior side of the head may be covered with a removable plastic cap, approximately three inches in diameter. Each cap contains a series of small holes for ventilation.

ISSUE:
What is the classification under the HTSUS of the subject lotion applicator?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods 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 GRIs may then be applied.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS provisions under consideration are as follows:

Tableware, kitchenware, other household articles and toilet articles, of plastics:

Other:

Other . . . .

Mechano-therapy appliances; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof:

Mechano-therapy appliances; massage apparatus; psychological aptitude-testing apparatus; parts and accessories thereof:

Mechano-therapy appliances and massage apparatus; parts and accessories thereof . . . .

An article is to be classified according to its condition as imported. See XTC Products, Inc. v. United States, 771 F. Supp. 401, 405 (1991). See also United States v. Citroen, 223 U.S. 407 (1911). In its condition, as imported, the subject lotion applicator is made of plastic for washing and cleansing purposes in the bath or shower. You claim that the subject good is described in heading 9019, HTSUS, as a “massage apparatus.”

Chapter 39, Note 2(r), HTSUS, states that Chapter 39 does not cover articles of Chapter 90 (for example, optical elements, spectacle frames, drawing instruments). Therefore, we must first address whether the merchandise is a “massage apparatus” described by heading 9019, HTSUS.

General EN to Chapter 90, HTSUS, at page 1576, states, in part, that:

This Chapter covers a wide variety of instruments and apparatus which are, as a rule, characterized by their finish and high precision. Most of them are used mainly for scientific purposes (laboratory research work, analysis, astronomy, etc.), for specialized technical or industrial purposes (measuring or checking, observation, etc.) or for medical purposes.

EN 90.19, at page 1617, states:

(II) MASSAGE APPARATUS

Apparatus for massage of parts of the body (abdomen, feet, legs, back, arms, hands, face, etc.) usually operate by friction, vibration, etc. They may be hand or poweroperated, or may be of an electromechanical type with a motor built in to the working unit (vibratorymassaging appliances). The latter type in particular may include interchangeable attachments (usually of rubber) to allow various methods of application (brushes, sponges, flat or toothed discs, etc.).

This group includes simple rubber rollers or similar massaging devices.

. . .

The following are also regarded as massage apparatus within the meaning of this heading: mattresses designed to prevent or treat bedsores by constantly varying the places at which the weight of the patient’s body rests and also providing a superficial massage effect on tissues liable to necrosis.”

The ENs indicate that a massage apparatus is one that provides massaging by friction, vibration, etc. Medical dictionaries provide similar definitions. Common and commercial meaning of terms may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). The Dorland’s Illustrated Medical Dictionary (28th ed.), at page 991992, states that the term “massage” is the systematic therapeutic friction, stroking, and kneading of the body. Citing The American Heritage Dictionary, New College Edition, the Court of International Trade (CIT) found that the term “therapeutic” means “having healing or curative powers.” See Richards Medical Co. v. United States, 13 CIT 519, 521, 720 F. Supp. 998 (1989), aff’d, 910 F.2d 828 (Fed. Cir. 1990). The Court further determined that it is necessary to establish a healing and curative purpose of a particular medical procedure in order for an article to qualify as therapeutic. See Richards Medical Co. v. United States, 13 CIT at 521. Based on the foregoing authorities, it is Customs view that the massage apparatus of heading 9019, HTSUS, must provide a therapeutic benefit.

You claim that the applicator’s roller balls create friction when rotated against the consumer’s body surface, and thus, provide a massaging effect. The issue is whether this friction provides a therapeutic benefit of a massage apparatus described under heading 9019, HTSUS.

The subject applicator is a lightweight plastic device. It has only three hollow plastic roller balls. Using this applicator as designed (absent the application of concerted pressure and sustained motion on the roller face of the applicator head), the roller balls create little friction on any surface. Lubricated with lotion or soap the rollers offer almost no friction or kneading of the body surface. The subject applicator is designed to be held by its 13-inch plastic extension-handle which further diminishes any pressure that one might apply to create friction on one’s body surface. The limited number and size of roller balls are sufficient to spread lotion or soap similar to the roller ball of a roll-on deodorant container, but not to create sufficient friction.

Customs has addressed the issue of “therapeutic benefit,” inter alia, in Headquarters Decisions (“HQs”) 962584, dated July 27, 1999, and 960011, dated September 23, 1998. In these decisions, involving the classification of hand-held pulsating shower heads, Customs determined that the massaging effect of pulsating water, directed on the body’s surface, did not provide a therapeutic benefit sufficient for a “massage apparatus” described in heading 9019, HTSUS. The subject applicator fails to meet even this minimal level of kneading and friction, or provide the therapeutic benefit of relieving stress and tension, claimed and held insufficient in HQs 962584 and 960011.

Additionally, you cite New York Rulings (“NYs”) G89664, dated May 15, 2001, and G85174, dated December 22, 2000, claiming that goods similar to the subject lotion applicator were classified under heading 9019, HTSUS, as “massage apparatus.” Both rulings involved small hand-held massage apparatus with roller balls. Both goods at issue are clearly distinguishable from the subject lotion applicator. Prima facie, the subject good is advertised as “an amazing lotion applicator,” with no mention or claim that it provides any massaging effect. In NY G85174, the good at issue was a neck massager, advertised as a massage apparatus, with a specialized curved handle. It had a limited number of rubber disks, but they rolled back and forth separately, to create a more genuine massaging effect. The roller balls in the subject applicator only rotate in place, and apply lotion as they rotate. Any massaging effect is quite minimal. The device at issue in NY G85174 was an instrument of greater precision. See General EN, Chapter 90, supra. Finally, unlike the subject applicator, the neck massager in NY G85174 had no lotion compartment or sponge surface for cleansing.

In NY G89664, the massage apparatus had two separate sections of plastic. One had 8 funnel-like protrusions each with a rotating roller ball that massaged a surface area with rotation of the balls within the funnels. That device was also handheld, but was advertised as a massage apparatus, and had overall measurements of 4.5 inches necessary to apply greater pressure and friction on the body surface. It too was an instrument of greater precision and Customs held that it was, “much more effective as a massager than as a cleaner.”

Based on the foregoing, the subject lotion applicator is not a massage apparatus described under heading 9019, HTSUS.

At GRI 1, heading 3924, HTSUS, in pertinent part, provides for “[o]ther household articles and toilet articles, of plastics[.]”

EN 39.24, in pertinent part, provides:

This heading covers the following articles of plastics:

. . .
Toilet articles (whether for domestic or non-domestic use) such as toilet sets (ewers, bowls, etc.), sanitary pails, bed pans, urinals, chamber-pots, spittoons, douche cans, eye baths; soap dishes, towel rails, toothbrush holders, toilet paper holders, towel hooks and similar articles for bathrooms, toilets or kitchens, not intended for permanent installation in or on walls.” . . .

Thus, for the reasons cited above, the plastic lotion applicator, for use in the bath or shower, is classifiable under heading 3924, HTSUS, as “[o]ther household articles and toilet articles, of plastics[.]” Having established that the subject merchandise satisfies the terms provided in heading 3924, HTSUS, at GRI 1, consideration of any other headings is precluded.

HOLDING:

At GRI 1, the subject lotion applicator is classifiable in subheading 3924.90.55, HTSUS, which provides for, “[t]ableware, kitchenware, other household articles and toilet articles, of plastics: Other: Other.”

Sincerely,

Myles B. Harmon, Acting Director

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