United States Court of Appeals for the Federal Circuit 

2008-1101 

DRYGEL, INC., 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Casey K. Richter, Neville Peterson LLP, of Washington, DC, argued for plaintiffappellant. With him on the brief were John M. Peterson and George W. Thompson. 

 

Barbara S. Williams, Attorney in Charge, International Trade Field Office, 

Commercial Litigation Branch, Civil Division, United States Department of Justice, of 

New York, New York, argued for defendant-appellee. With him on the brief were Jeffrey 

S. Bucholtz, Acting Assistant Attorney General, Jeanne E. Davidson, Director. Of 

counsel on the brief was Chi S. Choy, Attorney, Office of Assistant Chief Counsel, 

International Trade Litigation, 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 

2008-1101 

DRYGEL, INC., 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Appeal from the United States Court of International Trade in case no. 03-00832, Senior 

Judge Nicholas Tsoucalas. 

_________________________ 

DECIDED: September 9, 2008 

_________________________ 

Before RADER and SCHALL, Circuit Judges, and ILLSTON, District Judge.

*

SCHALL, Circuit Judge. 

This case involves the tariff classification of Gel-A-Mint MagikStrips®, a breathfreshening product imported into the United States by Drygel, Inc. (“Drygel”). Drygel 

appeals the decision of the United States Court of International Trade granting the 

United States’ (“the government’s”) cross-motion for summary judgment that the United 

States Bureau of Customs and Border Protection (“Customs”) correctly classified the 

MagikStrips at a 6.4% duty rate under subheading 2106.90.99 of the Harmonized Tariff 

Schedule of the United States (“HTSUS”), a catchall provision that provides for “Food 

 *

 Honorable Susan Y. Illston, District Judge, United States District Court for 

the Northern District of California, sitting by designation. 
preparations not elsewhere specified or included: . . . Other.” Drygel, Inc. v. United 

States, 507 F. Supp. 2d 1371, 1380 (Ct. Int’l Trade 2007). The court denied Drygel’s 

cross-motion for summary judgment that the MagikStrips are more specifically provided 

for under HTSUS subheading 3306.90.00, a duty-free provision that encompasses 

“Preparations for oral or dental hygiene . . . Other.” Id. Because the court erred in 

denying Drygel’s cross-motion for summary judgment, we reverse. 

BACKGROUND 

I. 

Drygel’s MagikStrips are thin, sugar-free, flavored strips of consumable material 

that dissolve when placed on the tongue. The MagikStrips are manufactured in Japan, 

and are packaged in small plastic containers for sale at retail stores. Id. at 1373. 

Customs liquidated the imported MagikStrips under subheading 2106.90.99, a catchall 

provision applicable to “Food preparations not elsewhere specified or included: . . . 

Other.” Drygel challenged that classification in the Court of International Trade, arguing 

that the MagikStrips should be classified as “Preparations for oral or dental hygiene . . . 

Other” under subheading 3306.90.00. 

II. 

We previously addressed the scope of subheading 3306.90.00 in WarnerLambert Co. v. United States, 407 F.3d 1208 (Fed. Cir. 2005). There, the Court of 

International Trade affirmed the determination by Customs to Classify WarnerLambert’s imported Certs® “Powerful Mints” under subheading 2106.90.99. WarnerLambert Co. v. United States, 343 F. Supp. 2d 1315, 1322 (Ct. Int’l Trade 2004). The 

court rejected Warner-Lambert’s argument that the Certs Powerful Mints were 

2008-1101 2
classifiable under subheading 3306.90.00 as “preparations for oral or dental hygiene.” 

In doing so, the court first determined that the term “hygiene” related to “the 

preservation of health.” Id. at 1320. Next, relying on a Food and Drug Administration 

(“FDA”) monograph entitled “Over-the-Counter Oral Health Care and Discomfort Drugs: 

Establishment of a Monograph,” 47 Fed. Reg. 22,760 (May 25, 1982) (“FDA 

monograph”), the court determined that only products achieving an antimicrobial effect 

contributed to oral health, Warner-Lambert, 343 F. Supp. 2d at 1320. The court focused 

in particular on the statement in the FDA monograph that “[b]ecause oral malodor is 

caused mainly by gram-negative anaerobes, only antimicrobial ingredients known to be 

effective against the causative organisms are effective in suppressing the malodor.” Id.

(quoting FDA monograph at 22,844). Because it was undisputed that the Certs 

Powerful Mints did not contain any antimicrobial agents, the court concluded that they 

could not be classified under subheading 3306.90.00. Id. 

On appeal, we concluded that the Court of International Trade’s interpretation of 

subheading 3306.90.00 was too restrictive. Warner-Lambert, 407 F.3d at 1210. 

Specifically, we determined that nothing in the FDA monograph, or in the dictionaries 

consulted by the court, required the connection of “hygiene” with “health.” We also 

observed that the court’s interpretation was contradicted by two relevant explanatory 

notes. First, the explanatory note to chapter 33 provides that the products of heading 

3306 need not “contain subsidiary pharmaceutical or disinfectant constituents,” nor be 

held out “as having therapeutic or prophylactic value.” Id. Second, the explanatory note 

to heading 3306 provides that the heading encompasses “[m]outh washes and oral 

2008-1101 3
perfumes.” Id. Thus, we concluded that “the Court of International Trade went too far in 

requiring that a product under Heading [3306] include an antimicrobial agent.” Id. 

Finally, we pointed out some of the characteristics of Certs Powerful Mints that 

made classification within heading 3306 appropriate. Specifically, we noted that the 

mints contained (1) certain flavors that masked malodor, (2) copper gluconate that 

breaks down odor-producing volatile compounds, and (3) cottonseed oil that absorbs 

odor-producing volatile compounds. Id. at 1208, 1210. In addition, we noted that 

consumption of the mints increased salivation, thereby purging bacteria located in the 

oral cavity. Id. Based upon our analysis, we held that Certs Powerful Mints “properly 

fall under heading [3306] of the HTSUS.” Id. at 1211. We therefore reversed the 

decision of the Court of International Trade granting summary judgment in favor of the 

United States. Id. 

III. 

In this case, the Court of International Trade was presented with cross-motions 

for summary judgment. The government moved for summary judgment that the 

MagikStrips are not prima facie classifiable under HTSUS subheading 3306.90.00 and, 

thus, that they properly fall within the catchall subheading 2106.90.99 that was applied 

by Customs. The government argued that our decision in Warner-Lambert stood for the 

proposition that in order for products to be classified as “preparations for oral or dental 

hygiene,” the products “must be able to achieve the breakdown and absorption of 

unwanted substances in the mouth and provide a cleansing effect by purging activity.” 

Drygel, 507 F. Supp. 2d at 1376. In other words, the government argued that only 

products with all of the same cleansing characteristics as the Certs Powerful Mints in 

2008-1101 4
Warner-Lambert can be classified as “preparations for oral or dental hygiene” under 

subheading 3306.90.00. The government contended that summary judgment was 

appropriate because Drygel failed to adduce sufficient evidence with respect to the 

breakdown, absorption, and purging activity—if any—of its imported MagikStrips. 

Drygel responded that summary judgment for the government was not proper, 

contending that its evidence raised genuine issues of material fact with respect to (1) 

whether the MagikStrips contain antimicrobial ingredients and (2) whether the 

Magikstrips contain ingredients that achieve breakdown, absorption, and purging effects 

discussed in Warner-Lambert. In addition, however, Drygel argued that the government 

misinterpreted the holding of Warner-Lambert. According to Drygel, we merely held in 

Warner-Lambert that the breakdown, absorption, and purging effects of Certs Powerful 

Mints were sufficient to bring their classification within subheading 3306.90.00; we did 

not hold that they are necessary conditions for classification within that subheading. 

Finally, Drygel affirmatively moved for summary judgment that the imported 

MagikStrips are classifiable within subheading 3306.90.00 because they are “oral 

perfumes.” Drygel argued that summary judgment in its favor was appropriate because 

(1) as a matter of law, subheading 3306.90.00 encompasses “oral perfumes” and (2) 

there was no genuine issue of material fact with respect to whether the MagikStrips are, 

at a minimum, “oral perfumes.” 

The Court of International Trade denied Drygel’s cross-motion for summary 

judgment and granted the government’s. The court rejected Drygel’s argument that 

HTSUS heading 3306 encompasses “oral perfumes.” According to the court, although 

our Warner-Lambert decision noted the reference to “[m]outh washes and oral 

2008-1101 5
perfumes” in the explanatory note to heading 3306, our holding ultimately relied upon 

the cleansing properties of Certs Powerful Mints. Id. at 1379. Further, the court 

observed that the explanatory notes are merely a “non-binding interpretive guide.” Id. 

Thus, the court concluded that Warner-Lambert “instructs that the term ‘hygiene’ 

requires a cleansing action such as the ‘breakdown and absorption function’ and 

‘cleansing effect of the purging activity’ of Certs® Powerful Mints.” Id. The court 

determined that Drygel had not established a genuine issue of material fact with respect 

to whether the MagikStrips accomplish the requisite cleansing action—i.e., whether the 

MagikStrips are antimicrobial or achieve a breakdown, absorption, and purging effect. 

Id. The court discounted Drygel’s evidence in that regard as either self-serving, 

irrelevant, or conclusory. Id. Accordingly, the court entered summary judgment in favor 

of the government that the MagikStrips were properly classified by Customs in HTSUS 

subheading 2106.90.99. 

DISCUSSION 

I. 

We have jurisdiction over Drygel’s appeal pursuant to 28 U.S.C. § 1295(a)(5). 

We review de novo the Court of International Trade’s rulings on summary judgment. 

Airflow Tech., Inc. v. United States, 524 F.3d 1287, 1290 (Fed. Cir. 2008); Russell 

Stadelman & Co. v. United States, 242 F.3d 1044, 1048 (Fed. Cir. 2001). The 

interpretation of the headings and subheadings of the HTSUS is a question of law 

reviewed without deference. MetChem, Inc. v. United States, 513 F.3d 1342, 1345 

(Fed. Cir. 2008); Home Depot U.S.A., Inc. v. United States, 491 F.3d 1334, 1335 (Fed. 

Cir. 2007). 

2008-1101 6
On appeal, Drygel contends that the Court of International Trade misinterpreted 

the holding of Warner-Lambert as requiring imported products to achieve a cleansing 

action—e.g., breakdown, absorption, and purging—in order to be classified within 

heading 3306. According to Drygel, Warner-Lambert stands for the proposition that 

breakdown, absorption, and purging activities are sufficient, but not necessary, 

conditions for classification within that heading. Drygel argues that “preparations for 

oral or dental hygiene” includes “oral perfumes” and that, at a minimum, its MagikStrips 

are useful for masking oral malodors. Thus, Drygel contends that the court erred in 

denying its motion for summary judgment that the MagikStrips should be classified 

within subheading 3306.90.00. In addition, Drygel argues that summary judgment for 

the government was improper even under the court’s more restrictive interpretation of 

“preparations for oral or dental hygiene.” That is because, according to Drygel, there 

were genuine issues of fact with respect to whether certain ingredients in its MagikStrips 

achieved a breakdown, absorption, and purging effect. 

The government responds that the Court of International Trade correctly 

interpreted Warner-Lambert. That is, the government contends that Warner-Lambert

requires an imported product to have cleansing characteristics—such as breakdown, 

absorption, and purging—in order to be classified within heading 3306 as a “preparation 

for oral or dental hygiene.” According to the government, the non-binding explanatory 

notes cannot expand the scope of heading 3306 to encompass all “oral perfumes” 

regardless of whether they exhibit the requisite cleansing characteristics. Further, the 

government argues that the evidence adduced by Drygel did not create a genuine issue 

of fact regarding whether the ingredients of the MagikStrips achieved breakdown, 

2008-1101 7
absorption, or purging at their respective concentrations. Like the Court of International 

Trade, the government discounts the evidence that Drygel introduced on that point as 

“self-serving” or “conclusory.” Thus, the government argues that the court did not err in 

granting its motion for summary judgment and denying Drygel’s. 

II. 

We agree with Drygel that the Court of International Trade’s interpretation of 

Warner-Lambert was too restrictive. The Certs Powerful Mints at issue in that case 

were marketed as a product to freshen the breath by controlling oral malodor. WarnerLambert, 407 F.3d at 1208. As explained above, we held that the term “hygiene” in 

HTSUS heading 3306 does not require antimicrobial agents, and that the cleansing 

properties—i.e., breakdown, absorption, and purging effects—of the Certs Powerful 

Mints were sufficient for their classification under that heading. Id. at 1210. We did not 

hold that products lacking the same cleansing properties could not be classified there. 

Warner-Lambert thus did not set forth the exclusive criteria for classification within 

heading 3306. Indeed, we expressly noted in Warner-Lambert that our decision was 

informed by the broader notion of “preparations for oral or dental hygiene” set forth in 

the explanatory notes. 

The Explanatory Note to Heading [3306] further specifies that the heading 

encompasses “[m]outh washes and oral perfumes.” Therefore, the Notes 

accompanying this heading do not require antimicrobial agents in 

“preparations for oral or dental hygiene.” To the contrary, the Notes 

expressly encompass “oral perfumes” within the heading. In sum, the 

Court of International Trade went too far in requiring that a product under 

Heading [3306] include an antimicrobial agent. 

Id. (internal citation omitted). 

At the same time, however, we did not hold in Warner-Lambert that all “oral 

perfumes” are prima facie classifiable within heading 3306. Although we observed that 

2008-1101 8
the Certs Powerful Mints were effective as an “oral perfume,” id. at 1208 (noting that the 

mints “contain[ed] flavors that mask malodor”), we specifically highlighted the additional 

cleansing properties of the mints in holding that they were “preparations for oral or 

dental hygiene” within heading 3306, id. at 1210–11. In other words, we did not rely 

solely upon the mints’ status as an “oral perfume” in concluding that they fell within 

heading 3306, and thus, Warner-Lambert does not necessarily compel the conclusion 

that all “oral perfumes” are prima facie classifiable within that heading. Nevertheless, 

there is no doubt that in Warner-Lambert we consulted the explanatory notes’ reference 

to “oral perfumes” in determining the scope of heading 3306, and the government has 

not convinced us to disregard it here. 

We recognize, as did the Court of International Trade, that the explanatory notes 

are not legally binding. Degussa Corp. v. United States, 508 F.3d 1044, 1047 (Fed. Cir. 

2007). The notes are persuasive, however, and we have stated that they are “generally 

indicative” of the proper interpretation of a tariff provision. Id.; Carl Zeiss, Inc. v. United 

States, 195 F.3d 1375, 1378 n.1 (Fed. Cir. 1999) (citing H.R. Rep. No. 100-576, 549 

(1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582). Thus, in past cases we have 

credited the unambiguous text of relevant explanatory notes absent persuasive reasons 

to disregard it. See, e.g., Agfa Corp. v. United States, 520 F.3d 1326, 1330 (Fed. Cir. 

2008); BASF Corp. v. United States, 497 F.3d 1309, 1315–16 (Fed. Cir. 2007). 

The government argues the explanatory notes must at least be interpreted in 

view of the heading itself. That is, the government contends that any “oral perfume” 

classifiable within the scope of heading 3306 must also exhibit the type of cleansing 

action recognized in Warner-Lambert because the explanatory note cannot expand the 

2008-1101 9
heading beyond its own terms, which require “hygiene.” The government’s argument, 

however, is belied by the remainder of the heading, which expressly provides that the 

phrase “preparations for oral or dental hygiene” includes “denture fixative pastes and 

powders.” In other words, the express inclusion of “denture fixative pastes and 

powders,” which presumably do not cleanse the oral cavity in any significant manner, 

demonstrates that heading 3306 is not limited by its own terms to products that cleanse. 

We further conclude that the term “oral perfume” carries its ordinary meaning as 

a substance that is intended to “perfume” the oral cavity—i.e., impart a pleasant smell to 

the mouth. See The American Heritage Dictionary of the English Language 1306 (4th 

ed. 2000) (defining perfume as “[a] substance that emits and diffuses a fragrant odor”); 

The New Oxford American Dictionary 1271 (2001) (defining perfume as “a fragrant 

liquid . . . used to impart a pleasant smell to one’s body or clothes”). That definition 

includes products that merely mask oral malodors and does not require the additional 

cleansing effects urged by the government. Indeed, the HTSUS and explanatory notes 

use the term “perfume” in its ordinary sense. Heading 3307 of the HTSUS—a heading 

that immediately follows the heading in dispute here—specifies “preparations for 

perfuming or deodorizing rooms.” The explanatory notes state that preparations for 

perfuming rooms “may be used for masking an odour.” World Customs Organization, 

Harmonized Commodity Description and Coding System: Explanatory Notes VI-3307-1 

(4th ed. 2007). In contrast, the notes state that prepared room deodorizers “act 

chemically on the odours to be overcome or . . . physically absorb odours.” Id. at VI3307-2. The HTSUS thus recognizes that malodors may be controlled in two distinct 

2008-1101 10
ways: (1) they may be “deodorized”—i.e., chemically neutralized—or (2) they may be 

“perfumed”—i.e., masked with a pleasant odor. 

Here, the term “oral perfume” requires no more than the masking of oral 

malodors.1

 The government does not challenge the status of the MagikStrips as an 

“oral perfume” under that interpretation.2 See Oral Arg. at 12:20–12:30, 13:34–14:00, 

22:10–24:32, available at http://oralarguments.cafc.uscourts.gov/mp3/2008-1101.mp3. 

The government’s only argument is that products that mask oral malodors are not “oral 

perfumes” classifiable within heading 3306 unless they exhibit the cleansing effects 

noted in Warner-Lambert. We conclude that the government’s interpretation of heading 

3306 is legally erroneous; no such cleansing effects are required. 

 1

 At oral argument, the government expressed a concern that this 

interpretation of heading 3306 could lead to the classification of numerous other items 

as “preparations for oral or dental hygiene,” including products that the government 

contends negatively impact hygiene, such as candies and flavored cigarettes. Although 

we need not speculate at length about future cases, we note that heading 3306 is 

ostensibly a “use” provision governed by Additional U.S. Rule of Interpretation 1(a). 

See Note 3 to Chapter 33 (stating that heading 3306 applies to products “suitable for 

use as goods” that are described by heading 3306). Thus, prima facie classification 

within heading 3306 is only appropriate if “goods of that class or kind to which the 

imported goods belong” are principally used as “oral perfumes.” Additional U.S. Rule of 

Interpretation 1(a); see Processed Plastics Co. v. United States, 473 F.3d 1164, 1170 

(Fed. Cir. 2006) (concluding that certain imported children’s backpacks were not prima

facie classifiable under use heading specifying “toys” because they were not principally 

used as toys); Warner-Lambert Co. v. United States, 425 F.3d 1381, 1385 (Fed. Cir. 

2005) (concluding that the principal use of imported vitamin C drops was not 

“therapeutic or prophylactic” despite the fact that the drops could be used to prevent 

scurvy). In addition, the government is free to argue in other cases that candies and 

flavored cigarettes are more specifically provided for in the headings of chapters 17 and 

24, respectively. 

2

 In fact, a printout from Drygel’s website—characterized in the 

government’s brief as “undisputed evidence”—reveals that the MagikStrips are 

marketed and sold as a breath freshening product, much like the Certs Powerful Mints 

in Warner-Lambert. 

2008-1101 11
2008-1101 12

The government has not argued that the MagikStrips would be more specifically 

described by subheading 2106.90.99—or any other HTSUS subheading—in the event 

that they are prima facie classifiable within subheading 3306.90.00. Thus, our 

conclusion that the MagikStrips are prima facie classifiable within subheading 

3306.90.00 ends the analysis. 

CONCLUSION 

Because there are no genuine issues of material fact with respect to whether the 

MagikStrips are an “oral perfume” within subheading 3306.90.00, we reverse the Court 

of International Trade’s denial of Drygel’s motion for summary judgment. Accordingly, 

we need not address the parties’ arguments with respect to the government’s motion for 

summary judgment. 

COSTS 

Each party shall bear its own costs. 

REVERSED