Mastectomy Bras Are Accessories for Artificial Body Parts, Not Clothing, Importer Argues

An importer of mastectomy bras filed Nov. 21 its motion for judgment in a 2020 case (see 2107140063) arguing that its bras should have been classified by CBP as parts or accessories for artificial body parts, not as “other brassieres of manmade fiber” (Amoena USA Corp. v. U.S., CIT #20-00100).

Importer Amoena USA explained in the motion that its bras are accessories for women after mastectomies who opted not to undergo reconstruction surgery, as the bras "secure one or two artificial breast forms to the body." They thus fall under duty-free Harmonized Tariff Schedule heading 6121, not heading 9021, which covers clothing and carries a 16.9% duty rate.

It said that the “vast majority” of its products were sold in medical settings, such as clinics and orthopedic shops, “where they are fitted by specially trained nurses or fitters.” And when selling the bras online, retailers recommend customers first see certified fitters, it said. This is in contrast to sales of regular bras, it claimed.

In 2015-2016, sales of mastectomy bras were “26.4% to medical stores, 31.2% to specialty lingerie stores, 2.9% to pharmacies, 18.8% to hospitals, 9.0% to department stores, and 11.6% to E-commerce,” it said.

And the bras are principally used as accessories to artificial breasts, which “they are specifically designed to hold,” Amoena said.

The importer said the Court of International Trade held in the cases Victoria's Secret Direct and Lerner New York that there isn’t a “standard definition of the term ‘brassiere.’” However, it is commonly defined as “a woman’s undergarment to cover and support the breasts.”

“We recognize that the Amoena MBs are called ‘brassieres,’ and that they look like brassieres to the casual observer,” Amoena said. “However, the name of an article is not dispositive in determining whether an eo nomine provision [such as heading 6212] is the proper classification.”

If a product has features “substantially in excess” of the eo nomine heading, courts look to the function, use and design of the product, it said.

It argued that the function of the bras, as well as their end use, marketing and sales are different than those of bras under heading 6212. And the mastectomy bras are sold to “different customers,” as “brassieres are generally sold to women, whereas the record here reflects that the subject [bras] are sold to a small subset of women who have had mastectomies or similar procedures, and who have not had reconstructive surgery.”

Courts in both the United Kingdom and Australia have recognized the bras as accessories, not clothing, it pointed out. It acknowledged that those decisions aren't binding on CIT, but it called their reasoning "highly relevant" to the present case.