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HQ W968209




May 29, 2007

CLA-2 OT:RR:CTF:TCM W968209 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 3824.90.9190

BJ Shannon, Esq.
Alston & Bird, LLP
950 F Street, NW
Washington, DC 20004-1404

RE: Reconsideration of NY L85114, dated June 8, 2005, concerning the tariff classification of certain heat therapy patches

Dear Ms. Shannon:

This is in reference to your letter of March 31, 2006, on behalf of your client, Heatmax Incorporated, parent company of MediHEAT, Inc.,

Although you stated in your letter of March 31, 2006, that your client, MediHEAT, Inc., is the parent company of Heatmax Incorporated (“Heatmax”). We note that you indicated in your May 16, 2006 letter that MediHEAT is a subsidiary of Heatmax, which is also reflected on Heatmax’s website, which states that its company divisions include MediHEAT Retail Division. in which you requested reconsideration of New York Ruling Letter (NY) L85114, dated June 8, 2005, which classified certain heat therapy patches in subheading 3824.90.9190, Harmonized Tariff Schedule of the United States Annotated (HTSUS), which provides for “[p]repared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting
of mixtures of natural products), not elsewhere specified or included; other:other,” dutiable at 5 percent ad valorem.

Your request, along with two samples, was forwarded to this office for our consideration. You have requested reconsideration of the “Heat Therapy Patch” and not the “Pain Relieving Patch.” On March 15, 2007, a meeting was held in which you and your client discussed your arguments for reclassifying the instant merchandise.

FACTS:

The facts, which were taken directly from L85114, are as follows:

The Heat Therapy Patch is put up for retail sale in a box with 3 disposable patches, each individually sealed. It has an adhesive strip containing natural rubber latex and contains iron powder, water, salt, activated charcoal, and vermiculite. You state in your inquiry that each patch provides up to 10 hours of soothing heat when applied to the skin.

You state that the subject patches are put up in packings for retail sale for medical purposes. You indicate that a person with a medical condition or injury that causes pain will purchase these patches at retail for use in relieving the pain associated with the medical condition or injury.

You indicate that the active ingredients in the heat therapy patches are iron powder, water, salt, activated charcoal and vermulite, all of which are encased in a bandage made of non-woven material with adhesive strips containing natural rubber latex for application to the skin. The bandages are sealed in plastic packaging. When the plastic packaging is opened and the bandage is exposed to air, the ingredients activate to produce continuous heat for up to ten hours. The wearer can then attach the bandage via the adhesive strips to the site of pain or injury. The heat from the bandage is transmitted through the skin, and it dilates the blood vessels, thereby increasing blood flow and oxygen intake in the vessels surrounding the site of the pain or injury and decreasing the sensation of pain. After use, the wearer disposes of the bandage.

You provided information that indicates that continuous low-level heat wrap therapy provides more efficacy than over the counter ibuprofen and acetaminophen for acute low back pain. You also assert that the subject patches may provide healing and prevent further damage to injured body tissue.

ISSUE:

What is the classification of the subject merchandise?

LAW AND ANALYSIS:

  Classification of goods under the HTSUS 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 of the Harmonized System 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 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.” EN 30.05 states that heading 3005 includes various waddings and prepared dressings and poultices which may be in the piece, in discs or in any other form.

Heading 3824 provides, in pertinent part for “chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included.” EN 38.24(B) states, that “chemical or other preparations are either mixtures (of which emulsions and dispersions are special forms) or occasionally solutions.” It also states that preparations classified in heading 3824 “may be either wholly or partly of chemical products (this is generally the case) or wholly of natural constituents,” but excludes mixtures of chemicals with foodstuff or other substances with nutritive value of a kind used in the preparation of human foodstuffs.

In this case, the subject patch’s active ingredients are: iron powder, water, salt, activated charcoal and vermulite, all of which are encased in a bandage made of non-woven material with adhesive strips containing natural rubber latex for application to the skin. You state that since the patch is effective in decreasing pain by providing increased blood flow and oxygen intake in the vessels surrounding the pain/injury site, it should be classified in subheading 3005.10.5000, HTSUSA, which provides, in pertinent part, for “adhesive dressings and other articles having an adhesive layer” in lieu of subheading 3824.90.9190, HTSUSA, which is a basket provision for chemical preparations. However, you did not substantiate your claim by presenting any evidence that suggest that physicians recommend the subject patch to their patients. Thus it is our view that the claims provided by this product do not rise to the level of a medical treatment. Thus, we find that it is not classifiable as a “similar article” since it is not for “medical, surgical, dental or veterinary purposes.”

The subject merchandise is composed of various ingredients that are contained in a non-woven textile material. We have reviewed other rulings on substantially similar merchandise and find that CBP has ruled out heading 3005 from consideration in similar cases. For example, HQ 962353, dated April 13, 1999, revoked NY 813748, which classified a magic heating and cooling bag that contained cereal (oat) grains enclosed in cotton fabric in subheading 3005.90.50, and reclassified it based on its essential character, the cereal oat grain, in subheading 1404.90.00, HTSUSA, which provides, in pertinent part for “vegetable products not elsewhere specified or included.” See NY I88209, dated December 2, 2002, which classified a “Magic Heat Bag” that contained a salt solution, water, pigments and titan alloys and was activated by pressing a small metal tab enclosed with the solution in subheading 3824.90.9150, HTSUSA; see also HQ 961089, dated April 18, 1999, in which CBP revoked NY A83830, dated May 31, 1996 and reclassified “PitPacs” Heating and Cooling Pads in subheading 1404.90.00, HTSUSA.

GRI 3(a), states that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:

The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

Since the instant patch is similar in composition to the aforementioned goods as it contains two or more different materials which are classified in different headings, we turn to GRI 3(b) which states:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Explanatory Note (EN) VIII to GRI 3(b) states:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

There have been several court decisions on "essential character" for purposes of GRI 3(b). These cases have looked primarily to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F.3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed CAFC No. 98-1227 (March 16, 1999). Based on the foregoing, we conclude that in an essential character analysis for purposes of GRI 3(b), the role of the constituent materials or components in relation to the use of the goods is generally of primary importance, but the other factors listed in EN Rule 3(b)(VIII) should also be considered, as applicable.

Prior rulings that have classified heating or cooling composite goods have differentiated between goods on the basis of whether the article as a whole appears to function primarily as a means to provide heat or cold. In such instances, the heating/cooling element imparts the essential character. See HQ 964851, dated April 18, 2001; HQ 966262, dated May 29, 2003; HQ 957182, dated March 6, 1995; HQ 959825, dated May 19, 1999; HQ 964054, dated March 2, 2001; HQ 956845, dated December 22, 1994; HQ 957478, dated September 7, 1995. In this case, the subject heat patch contains the active ingredients: iron powder, water, salt, activated charcoal and vermulite. The textile fabric merely serves to contain the ingredients for more efficient use. The indispensable function of the iron powder, water, salt, activated charcoal and vermulite is to emit heat while the exterior fabric merely serves to contain the ingredients. As these constituent ingredients provide the patch’s essential character, we find that the heat pack, under GRI 3(b), is classifiable in heading 3824, HTSUSA.

HOLDING:

New York Ruling Letter (NY) L85114, dated June 8, 2005, is hereby AFFIRMED.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), you should contact the local CPB office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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