Court of International Trade Rules for Victoria's Secret, Overturns Customs Classification of "Bra Top"

The U.S. Court of International Trade ruled May 1, 2013 (Victoria's Secret Direct LLC v. United States, Ct. Int'l Trade, No. 07-00347 (Slip Op. 13-55), 5/1/13) that U.S. Customs and Border Protection erred in classifying a Victoria's Secret "bra top" as a "tank top" or similar article (Harmonized Tariff Schedule of the United States ("HTSUS") classification 6109.10.00) with a rate of import duty of 16.5 percent ad valorum.

The garment in question is a women's garment made of predominantly-cotton knitted fabric and containing an interior fabric insert marketed as a "shelf bra." The garment, Victoria’s Secret style number 194–423, was marketed under the description "Bra Top." It is worn on the upper body, has narrow straps, and has no shoulder or neck coverage.

Victoria's Secret claimed classification of the Bra Top as a "brassiere" or similar article (HTSUS 6212.90.00, rate of duty 6.6%) or, in the alternative, under a residual provision for other garments of cotton, knitted or crocheted (HTSUS 6114.20.00, rate of duty 10.8%).

The following uncontested facts were agreed to by the parties:

1. The marketing name for Victoria’s Secret style 194–423 is the "Bra Top."
2. The commercial invoice describes the Bra Top as "ladies knit sleeveless basic tank 3 pack with shelf bra tank top 95 pct cotton 5 pct spandex)."
3. The Bra Top is made of knit fabric that is 95% cotton and 5% spandex.
4. The Bra Top is an upper body garment.
5. The Bra Top contains a "built-in shelf bra for hidden support" consisting of an inner layer of fabric that covers the bust of the wearer.
6. The built-in shelf bra is attached solely at the top of the garment, the bottom of the shelf bra not being attached to the outside fabric layer of the garment.
7. The built-in shelf bra has an elastic band attached to the bottom that is designed to be worn under the bust of the wearer.
8. The shelf bra is intended to be form-fitting over the bust and to change the natural shape of the breasts of the wearer.
9. The Bra Top has 3/8 inch straps that go over the top of the wearer's shoulders.
10. Victoria’s Secret's marketing website describes Bra Tops as "[s]exy scoopneck tops with built-in shelf bra for hidden support. Three tops, three colors, one great price. Imported cotton."
11. The Bra Top is sold in sizes XS (extra small) through XL (extra large).

The Court found:

1. The Bra Top Is Not Properly Classified under Heading 6109, HTSUS.

The article description for heading 6109 is "T-shirts, singlets, tank tops and similar garments, knitted or crocheted." The Bra Top is a knitted "garment," but it is not one of the garments named in the heading and is not of a type that was intended to be included within the heading as a garment "similar" to the named garments.

The "identity" or "essential characteristic" of the garments identified eo nomine in heading 6109 is that of undershirts (in British English, "vests") and adaptations of undershirts for outerwear, such as T-shirts, which are considered garments "of the vest type." Due to the bust support function it provides, the Bra Top does not have the identity or essential characteristic of an undershirt or "vest" as do other outerwear articles classified under the heading, such as outerwear T-shirts and singlets for athletic wear. But even if the court were to presume, arguendo, that the Bra Top has the "identity" or "essential characteristic" of a "tank top," that presumption does not resolve the question before the court, which is the proper scope of heading 6109 as defined by the terms therein. Defendant’s "identity" and "essential characteristic" arguments are not persuasive because garments providing bust support were not intended for inclusion within heading 6109, [because] the HS nomenclature does not consider women's undergarments worn on the upper part of the body and providing bust support, such as corsets, brassieres and similar such undergarments, to be properly described as undershirts or vests. These types of women's undergarments are described by the terms of HS subheading 62.12.

2. The Bra Top Is Not Properly Classified under Heading 6212, HTSUS.

Plaintiff claims classification of the Bra Top under heading 6212 ("Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted"). The court disagrees, concluding that the Bra Top is not described by any term within that heading. The court’s research has not found a standard dictionary definition of the term "brassiere" to which the Bra Top conforms, and plaintiff offers none. The facts as found by the court are sufficient to demonstrate that the shelf bra component of the Bra Top is similar in construction and purpose to some types of brassieres, notably "soft-cup" brassieres with a single cup and an elastic underbust band. Those same facts do not allow the court to conclude that the Bra Top on the whole is "similar" to a brassiere or to any other garment or article named in the heading.

3. The Bra Top Is Properly Classified under Heading 6114, HTSUS.

The court determines that heading 6114, HTSUS is the correct heading for classification of the Bra Top. This heading includes the term "[o]ther garments, knitted or crocheted." The Bra Top is a knitted garment. [H]eading 6114 is a residual provision that "covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter [6101–6113]." The Bra Top is not described by the terms of any heading in the group 6101–6113.

4. The Bra Top Is Properly Classified in Subheading 6114.20.00, HTSUS.

The only remaining question is the determination of the appropriate subheading under heading 6114. Plaintiff ’s alternate classification claim is under subheading 6114.20.00, the court agreed.