## United States Court of Appeals for the Federal Circuit

04-1489

WARNER-LAMBERT COMPANY, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

Patrick D. Gill , Rode & Qualey, of New York, New York, argued for plaintiffappellant. Of counsel on the brief were John S. Rode and Eleanore Kelly-Kobayashi

. Bruce N. Stratvert , Attorney, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justic e, of New York, New York, argued for defendant-appellee. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Barbara S. Williams , Attorney in Charge. Of counsel on the brief was Chi S. Choy , Office of Assistant Chief Counsel, United States Customs and Border Protection, of New York, New York. Appealed from: United States Court of International Trade Senior Judge Nicholas Tsoucalas

## United States Court of Appeals for the Federal Circuit

04-1489 WARNER-LAMBERT COMPANY, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

__________________ _________ DECIDED: May 11, 2005

__________________ _________ Before RADER, SCHALL, and BRYSON, Circuit Judges

. RADER, Circuit Judge

. The United States Court of Internat ional Trade sustained th e United States Customs Service determination to cla ssify Warner-Lambert’s imported Certs ® “Powerful Mints” under Harmonized Tari ff Schedule of the United St ates (HTSUS) subheading 2106.90.99, as a “food preparation not elsewhere specified or included.” Customs had proposed this classification if t he Court of International Trade f ound, as a matter of fact, that the mints are sugar-fr ee. Warner-Lambert instead s ought classification under HTSUS subheading 3306.90. 00, “Preparations for oral or dental hygiene . . . Other,” which would be fr ee of duty. Because Customs’ classification of Warner-Lambert’s Certs Powerful Mints withi n subheading 2106.90.9 9 of the Harmonized Tariff ®
Schedules of the United St ates (HTSUS) does not per suade under the appropriate standard, this court reverses.I. Warner-Lambert markets Certs ® Powerful Mints as a product to freshen the breath, and in partic u lar to eliminate oral malodor. The product contains sorbitol, maltodextrin, aspartame, m agnesium stearate, “Retsyn ® ,” and blue food coloring. Retsyn ® contains flav oring, partially hydroge nated cottonseed oil, and copper gluc onate. Warner-Lambert presented exper t evidence that Certs ® is “an effective breath freshening product” because it stimulates salivary flow, whic h controls malodor by purging. Further testimony indicated that the product c ontains flavors that mask malodor and copper gluconat e that breaks down odor-producing volatile c o mpounds. Finally, the product contains cottonseed oil to absorb odor-p roducing volatile compounds. Customs presented expert evidence t hat the product does not contain ingredients considered by professionals to remove bacteria and bacterial products contributing to oral diseases. Accordingl y, Customs argues that the product “does not promote oral hygiene. ” Customs’ expert did not e, ho wever, that saliva is an effective cleans ing solution that dissolves malodor ous compounds and helps to mechanic a lly remove bacteria and volatile co mpounds from the mouth. The Court of International Trade c onsidered a monograph ent i tled “Over-theCounter Oral Health Care and Discomfort Drugs: Estab lishment of a Monograph,” 47 Fed. Reg. 22,760 ( M ay 25, 1982), published by the Food and Drug Ad ministration (FDA). This monogr aph summarized the conclu s i ons of a professional p anel of the FDA that evaluated ingredien ts in oral health care preparations sold without prescription. The monograph stated that “hygienic measures” to control malodo r

04-1489 2included “ v arious cosmetic preparations, such as odoriferous mouthwashes and gargles, and lozenges . Some of the products employed contain antimicrobial and other active ingr edients for which ther apeutic claims are made in addition to cosmetic claims.” Id. at 22,842. The monograph also stated that malodor may be controlled by purging, masking, chemical neutralization, or bacterial inhibition. Id. at 22,843-44. The Court of Internati onal Trade weigh ed this evidenc e and cons ulted definition s for “preparations” and “hygiene” from medica l and general dictionaries. The trial court concluded that, because “hygiene” “relates to the presence of health,” preparations for oral hygiene are “medicines made ready for t he practic e of preser ving the health of the mouth or oral cavity.” Warner-Lambert Co. v. United States , 343 F. Supp. 2d 1315,
1320 (Ct. Int’l Trade 2004). Ther efore, the court conclude d that cosmetic products “must reach an antim icrobial res u lt to be c ons idered a preparation for oral or dental hygiene.” Id. Because Certs ® Powerful Mints do not cont ain an antimicrobial agent, the trial court declined to classify them as a preparation for oral hygiene under HTSUS
33.06. Id. at 1321. II. The parties do not dis pute material facts about these imports. This court’s review of their classification reduces to a determi nation of the proper me aning and scope of the HTSUS ter m s. That determination is a matter of statutory interpretation, i.e. , a question of law. See S GI, Inc. v. United States , 122 F.3d 1468, 1471 (Fed. Cir. 1997). This court construes a tariff term according to its common and commercial meanings– presumably the same. To disc ern the comme rcial meaning of a tariff term, this court may consult dictionaries, scient ific authorities, and other re liable information sources. See Mead Corp. v. U n ited States , 283 F.3d 1342, 1346 (F ed. Cir. 2002). The HTSUS

04-1489 3Explanatory Notes themselves are not binding, but are “ generally indicative of the proper interpretation of . . . t he Harmonized Tariff System.” Lynteq, Inc. v. United States , 976 F.2d 693, 699 (Fed. Cir. 1992). This court defers to a classification ruling by Customs following t he principles in Skidmore v

. Swift & Co. , 323 U.S. 134 (1944). Mead Corp. v. United States , 533 U.S. 218, 219-20 (2001). Under Skidmore , the degree of defer ence depends on the thoroughness evident in the c l assi fication ruling; the validity of the r easoning t h at led to the classification; consistency of the classific a tion with earlier and later pronouncements; the formality wit h whic h the particular ruling was established; an d other factors that supply a “power to persuade.” Skidmore , 323 U.S. at 140. Althoug h according deference, this court has an ind ependent responsibility to dec i de the lega l issue of the proper meaning and scope of HTSUS terms. See Rocknel F a stener, Inc. v. United States , 267 F.3d 1354, 1358 (Fed. Cir. 2001).
III. The terms in HTSUS determine the sc ope of the imports covered by the categories. Heading 33.06 provides for: Preparations for oral or dental hygien e, including denture fixative pastes and powders; yarn used to clean betwe en the teeth (dental floss), in indiv i dual retail packages: Dentifrice s: Yarn used to clean between the teeth (dental floss): Other. The court below found that t he phrase “preparations for oral or dental hygiene” is not defined in any standard or te chnical lexicon. For guidance on this phrase, the court resorted to the FDA monograph, which s t at es, as noted above, that the use of odoriferous cosmetic preparatio ns without antimicrobial agents is a hygienic measure. See Monograph , at 22,842. The monograph states t hat “only antimicrobial ingredient s

04-1489 4known to be effective against the caus ative microorganis m s are effective in suppressing the malodor,” Id. at 22,844, but it does not st ate anywhere that “hygiene” requires antimicrobial action. The trial court, not the monograph, connected “health” with “hygiene.” Nothing in t he monograph, or in the dictionar ies c onsulted by the court, requires that identification. “H ygiene” might lead to “health”--but it is not “health” itself. The trial court simply read too much into the monograph. Further, the court’s interpretation di scounts both the Explanat ory Notes to Chapter 33 and the examples in Heading 33.06 itself. The Chapt er Notes specify that the products of Heading 33.06 need not “cont ain subsidiar y pharmaceutical or disinfectant constituents,” nor be held out “as havin g therapeutic or prophylac t ic value.” World Customs Organization, Har m onized Commodity Description and Coding System 613 (3d ed. 2002). T he Explanatory Note to Heading 33.06 further specifies that the heading encompasses “[m]outh wa shes and oral perfumes.” Id. at 620. Therefore, the Notes accompanying this heading do not require antimicrobial agents in “preparation s for oral or dental hygiene.” To the cont rary, the N o tes expressly encompass “oral perfumes” within the heading. In sum, the Court of Internat ional Trade went too far in requiring that a product under Heading 33. 06 include an antimicrobial agent.
IV. As noted earlier, Customs proposed to c l assify Cer t s ® Powerful Mints under HTSUS Heading 2106.90.99. In assessing the deference appr opriate for this action, this court examines Headquarters Ruling Letter No. HQ 963764 of January 11, 2002. In HQ 963764 Customs considered the ap propriateness of class i fying Certs ® Po werful Mints under Headings 17.04 (“sugar confectioner y . . . not containing c o coa”); 21.06

04-1489 5(“[f]ood preparations not elsewhere specified or included”); and 33.06 (“preparations for oral or dent al hy giene”). Customs also bas ed its de cis i on on the F D A monograph, The Random House Dictionary of the English Language (n.d.), and the Explanat ory Notes. In its analysis of the FDA m onograph, Cu stoms did not acknowled g e that the monograph does not require a malodor preparation to cont ain an antimicrobial agent , although t he monograph does not suggest that only antibacterial products are “hygienic.” Further, although Customs quoted the dictionary de finition of “hy g iene” as “a condition or practi ce conducive to the preservation of health, as cleanliness,” it overlooked the uncontes ted facts that Certs ® Powerful Mints effect a cleansing action. To justify its proposed classific a tion und er Headings 17.04 or 21.06, Customs stated simply: “The Certs ® Cool Mint Drops consist essentially of sugar.” H Q 963764, at 7. This dismissive analysis neglects not only those chemical componen ts of the mints which achieve the breakdown and absorp tion function, but also the cleans ing effect of the purging activity . In sum, Customs’ propos ed classification carried little power to persuade because it ov erlooked s o me characteristics of the imports and read the term “hygiene” too narrowly to remain consistent with the Explanatory Notes.
V. For these reasons, this court holds that Warner-Lambert’s Certs ® Powerful Mints properly fall under heading 33.06 of the HTSUS. The just ification for Customs’ desired alternative classification lacks the power to persuade under Skidmore

. Because the imported articles belong under Heading 33.06 of the HTSUS, this court reverses the decision of the Court of International Trade.

04-1489 6COSTS Each party shall bear its own costs.
R E VER SED

04-1489 7