Warner-Lambert Company v. U.S.

• Citation: 343 F.Supp.2d 1315
• Decision Date: 01 June 2004
• Docket Number: No. SLIP OP. 04-56.,Court No. 02-00254.,SLIP OP. 04-56.
• Parties: WARNER-LAMBERT COMPANY, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

343 F.Supp.2d 1315

WARNER-LAMBERT COMPANY, Plaintiff, v. UNITED STATES, Defendant.

No. SLIP OP. 04-56.

Court No. 02-00254.

United States Court of International Trade.

June 1, 2004.

Rode & Qualey, New York City (Patrick D. Gill) for Warner-Lambert Company, plaintiff.

Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney-in-Charge, International Trade Field Office, Civil Division, Commercial Litigation Branch, United States Department of Justice (Bruce N. Stratvert); Chi S. Choy, Office of the Assistant Chief Counsel for International Trade Litigation, Bureau of Customs and Border Protection of the Department of Homeland Security, for the United States, defendant, of counsel.

OPINION

TSOUCALAS, Senior Judge.

Plaintiff, Warner-Lambert Company ("WLC"), challenges the classification of its merchandise by the Bureau of Customs and Border Protection of the Department of Homeland Security ("Customs") under Harmonized Tariff Schedule of the United States ("HTSUS"), subheading 1704.90.35, 19 U.S.C. § 1202 (2000), as a sugar confectionary with a duty rate of 5.6 percent ad valorem. WLC claims that the imported merchandise is a sugar-free product that should be classified under HTSUS subheading 3306.90.00, which provides for preparations for oral or dental hygiene that are free of duty. Customs counterclaims that if the Court finds, as a matter of fact, that the merchandise at issue is sugar-free, then proper classification of the merchandise is under HTSUS subheading 2106.90.99, which provides for food preparations not elsewhere specified or included, dutiable at the rate of 6.4 percent ad valorem.

DISCUSSION

WLC, a wholly-owned subsidiary of Pfizer, Inc., see Disclosure of Corporate Affiliations & Financial Interest, and importer of Certs® Powerful Mints ("subject merchandise"), filed a timely protest pursuant to 19 U.S.C. § 1514 (2000) challenging classification of its merchandise. In its complaint, WLC claims that: (1) the principal active ingredient in the subject merchandise is Retsyn®, a registered trade name of plaintiff; and (2) Retsyn®, along with the other breath freshening ingredients, promotes oral and dental hygiene. See Compl. ¶ 11. A bench trial was held on March 30 and 31, 2004. In accordance with USCIT R. 52(a), the Court enters judgment in favor of defendant pursuant to the following findings of fact and conclusions of law.

I. Findings of Fact

1. The merchandise at issue is Certs® Powerful Mints.

2. The subject merchandise was described on plaintiff's invoices as Powerful Mints Spearmint, Certs® Peppermint Standard, and Certs® Spearmint Standard but all constitute Certs® Powerful Mints.

3. The subject merchandise was classified under HTSUS subheading 1704.90.35 which reads:

                1704        Sugar confectionery (including white
                            chocolate), not containing cocoa
                1704.10.00    Chewing gum, whether or not
                              sugar-coated..................... kg...4%
                1704.90       Other
                                Confections or sweetmeats ready for
                                consumption
                1704.90.10        Candied nuts................. kg...4.5%
                                    Other
                1704.90.25          Cough drops................ kg...Free
                1704.90.35          Other........................... 5.6%
                

4. Certs® Powerful Mints do not contain sugar.

5. Customs counterclaims that if the Court finds that Certs® Powerful Mints do not contain sugar, then proper classification for the subject merchandise is under HTSUS subheading 2106.90.99, which provides for a duty rate of 6.4 percent ad valorem for "Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other."

6. The imported product is marketed and advertised and consumers perceive Certs® Powerful Mints as a breath freshening agent which combats oral malodor.

7. Oral malodor or halitosis is commonly referred to as bad breath.

8. The principle active ingredient in Certs® Powerful Mints is Retsyn®, a registered trade name of plaintiff.

9. Retsyn® contains copper gluconate and partially hydrogenated cottonseed oil and flavoring agents in the form of peppermint and/or spearmint.

10. The peppermint or spearmint flavoring agents in the imported product masks oral malodor.

11. In 1982, the United States Food and Drug Administration ("FDA") published a monogram in the Federal Register, see Pl.'s Ex. 2, stating that the dead-space gases of a malodorous mouth consist mainly of minute traces of highly odoriferous volatile sulfur compounds, the most common and abundant of which are hydrogen sulfide and methyl mercaptan.

12. The same monogram explained that oral malodor can be controlled by masking, purging, neutralizing or bacterial inhibition.

13. Copper gluconate in Retsyn® reacts with the volatile sulfur compounds hydrogen sulfide and methyl mercaptan to produce non-odorous materials in the oral cavity (neutralizing).

14. Micronized fat in the form of partially hydrogenated cottonseed oil absorbs sulfides and methyl mercaptan which are the main contributors to oral malodor.

15. Consumption of Certs® Powerful Mints increases salivation in the oral cavity thereby purging bacteria located in the oral cavity.

16. The subject merchandise contains an amount of copper gluconate and partially hydrogenated cottonseed oil sufficient to neutralize the quantities of volatile sulfur compounds normally present in the mouth.

17. WLC claims that the Certs® Powerful Mints are properly classifiable under HTSUS 3306.90.00 which reads:

                3306         Preparations for oral or dental
                             hygiene, including denture fixative
                             pastes and powders; yarn used to
                             clean between the teeth (dental
                             floss), in individual retail packages
                3306.10.00      Dentifrices..............X.......... Free
                3306.20.00      Yarn used to clean between the
                                teeth (dental floss).....kg......... Free
                3306.90.00      Other....................kg......... Free
                

18. Certs® Powerful Mints contain sorbitol, natural flavoring (specifically Retsyn®), maltodextrin, aspartame, magnesium stearate and Blue 1. See Pl.'s Exs. 3, 4 (Interrog. 4).

19. Plaintiff's expert witness testified that the subject merchandise is a non-medicated, cosmetic product, Tr. 86, that has not received the American Dental Association's "Seal of Acceptance." Tr. 107.

20. The trial and pleadings lack any claim that Certs® Powerful Mints are used for therapeutic or prophylactic purposes or that they are designed to treat any specific disease.

21. Plaintiff's expert, Dr. Jack W. Vincent, testified that halitosis is commonly caused by "bacteria metabolizing protein and amino acid and emitting a highly foul smelling compound such as hydrogen sulfide, methyl mercaptan and dimethyl sulfide, among others. There is also an extrinsic source of oral malodor that most generally comes from foods that are eaten; commonly onions, garlic, ... can leave an odor on the breath." Tr. 19.

22. Dr. Vincent also testified that the "most effective way to control malodor is through very effective oral hygiene procedures [such as] brushing thoroughly with a dentifrice, using dental floss or another device to clean in between the teeth and also some mechanism of controlling the growth of bacteria on the tongue, most commonly done by tongue scraping. These are activities that are ordinarily done in the home because it requires facilities in which to do it. There are other methods that are used that are somewhat more portable in nature that can be used during the day. Mouth rinsing is a bit more portable, but still it [is] rather cumbersome.... [T]here are [also] portable fresheners such as Certs products that can be used on demand, very discretely and provide the breath freshening capability for an individual at any time." Tr. 20-21.

23. Defendant's expert, Dr. Andrew Spielman, testified that "Certs ... based on [the] evaluation of the scientific evidence [] do not promote oral hygiene ... [b]ecause they do not provide mechanical removal of bacteria. They provide masking effect. They may provide some inhibition, but not to the extent that [other] oral hygiene products [provide]." Tr. 189-191.

24. Dr. Spielman also testified that "an oral perfume that contained anti-bacterial agent[s], would [ ] fit within the category of a preparation for oral or dental hygiene." Tr. 191.

II. Conclusions of Law

The Court has jurisdiction over this dispute pursuant to 28 U.S.C § 1581(a) (2000). Determining whether imported merchandise was classified under the appropriate tariff provision entails a two-step process. See Sabritas, S.A. de C.V. v. United States, 22 CIT 59, 61, 998 F.Supp. 1123, 1126 (1998). First, the proper meaning of specific terms in the tariff provision must be ascertained. Second, whether the imported merchandise falls within the scope of such term, as properly construed, must be determined. See Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1391 (Fed.Cir.1994). The first step is a question of law and the second is a question of fact. See id.; see also Universal Elecs., Inc. v. United States, 112 F.3d 488, 491 (Fed.Cir.1997). Pursuant to 28 U.S.C. § 2639(a)(1) (2000), Customs' classification is presumed correct and the party challenging the classification bears the burden of proving otherwise. See Universal Elecs., 112 F.3d at 491. This presumption, however, applies only to Customs' factual findings, such as whether the subject merchandise falls within the scope of the tariff provision, and not to questions of law, such as Customs' interpretation of a particular tariff provision. See Sabritas, 22 CIT at 61, 998 F.Supp. at 1126; see also Universal Elecs., 112 F.3d at 491; Goodman Mfg., L.P. v. United States, 69 F.3d 505, 508 (Fed.Cir.1995). To determine whether the party challenging Customs' classification has overcome the statutory presumption of correctness, this Court must consider whether "the government's classification is correct, both independently and in...