Ziploc classified as Bags(HS:3923.21)or Household goods(HS:3924.90)?
This article is regarding the court case of “S.C. JOHNSON & SON, INC., Plaintiff, v. UNITED STATES, Defendant.”
US Customs classified it as Plastic bags HS:3923.21
Articles for the conveyance or packing of goods, of plastics;
stoppers, lids, caps and other closures, of plastics:
Sacks and bags (including cones):
Of polymers of ethylene
S.C. JOHNSON contends that it’s classifiable as Household good HS:3924.90
Tableware, kitchenware, other household articles and hygienic
or toilet articles, of plastics:
- the subject merchandise are used for the packing and transportation of goods, which is consistent with articles defined in 3923.
- the ultimate purchasers expect to use reclosable plastic bags for transporting, carrying, or packing food, personal items, merchandise, materials, or other items that fit within the interior space.
- the marketing materials for the subject merchandise indicate that the sandwich bags are recognized in the trade for the conveyance or packing of goods.
- subject merchandise are not actually used for packaging or conveyance of bulk or
- ultimate purchasers do not expect to use S.C. Johnson’s sandwich bags for the
packaging or conveyance of bulk or commercial items, but instead,
ultimate purchasers expect to use the sandwich bags in their homes.
- The sandwich bags are designed in a manner consistent with household food storage.
- consumers may “store mid-day snacks like fresh cut fruits, veggies,
chips or pretzels in Ziploc Sandwich bags.
- these products are sold in the areas of . . . stores where other household food storage containers are sold.
The court first considered the meaning and scope of HTSUS Heading 3923, “articles for the conveyance or packing of goods.” HTSUS Heading 3923. “Conveyance” is defined as “a means of carrying or transporting something.”
Webster’s Third New International Dictionary 499 (unabr. 1993). “Convey” is defined as “to bear from one place to another.” Id. “Packing” is defined as “to process and put into containers in order to preserve, transport, or sell.”
The American Heritage Dictionary of the English Language 1261 (4th ed. 2000); see also Webster’s Third New International Dictionary 1618 (unabr. 1993) (“[T]he act or process of preparing goods for shipment or storage.”). Because the terms of the heading contemplate a specific use (i.e., “conveyance or packing of goods”), this court concluded that HTSUS Heading 3923 is a principal use provision encompassing goods of plastic used to carry or to transport other goods of any kind.
And the court examined the tariff terms “household articles.” 42 CIT at __, 335 F. Supp. 3d at 1300–02; HTSUS Heading 3924. “Household” was defined as “the maintaining of a house,” “household goods and chattels,” “a domestic establishment,” or “of or relating to a household.” 42 CIT at __, 335 F. Supp. 3d at 1300–02 (citing Webster’s Third New International Dictionary 1096 (unabr. 1993). “Article” was defined as an “individual thing or element of a class; a particular object or item.” 42 CIT at __, 335 F. Supp. 3d at 1300–02 (citing The American Heritage Dictionary of the English Language 101 (4th ed. 2000)).
The Explanatory Note to HTSUS Heading 3924 provided further guidance for the court’s analysis. The Explanatory Note provided, in relevant part: “[t]his heading covers the following articles of plastics:
. . . (C) Other household articles such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dustcovers (slipovers).” Explanatory Note 39.24.
The court found the reference in the Explanatory Note to “other household articles” helpful in defining the broad scope of the tariff terms, as the listed articles are all goods commonly found in the home.
The court concluded that the plain meaning of the tariff terms in HTSUS Heading 3924 was plastic goods of or relating to the house or household. Id.
Having concluded that the subject merchandise are prima facie classifiable under both HTSUS Headings 3923 and 3924, the court applies GRI 3, which provides, in relevant part, that: “when . . . goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: . . . [t]he heading which provides
the most specific description shall be preferred to headings providing a more general description.” GRI 3(a).
In determining which tariff provision is more specific, the court compares only the language of the headings, and looks to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty. Orlando Food Corp. v. United States, 140 F.3d 1437, 1440–41
(Fed. Cir. 1998).
HTSUS Heading 3923 is a use provision that specifies “the conveyance or packing” of goods. The subject merchandise must be used in a specific way to satisfy HTSUS Heading 3923, while the eo nomine provision of HTSUS Heading 3924 merely describes the article regardless of its use, and therefore HTSUS Heading 3923 has requirements that are more difficult to satisfy and describe the article with a greater degree of accuracy and certainty.
In addition, HTSUS Heading 3923 pertains to “articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics,” whereas HTSUS Heading 3924 encompasses “tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics.” HTSUS Headings 3923, 3924.
The articles described in HTSUS Heading 3924 include a more diverse range of products with a wider range of characteristics than the articles described in HTSUS Heading 3923.
The Explanatory Notes support this reading, as section 39.23 of the Explanatory Notes indicate that the articles covered by HTSUS Heading 3923 include:
(a) Containers such as boxes, cases, crates, sacks and bags
(including cones and refuse sacks), casks, cans, carboys, bottles
and flasks. . .
(i) Cups without handles having the character of containers
used for the packing or conveyance of certain foodstuffs,
whether or not they have a secondary use as tableware or
(ii) Bottle preforms of plastics. . .
(b) Spools, cops, bobbins and similar supports, including video or
audio cassettes without magnetic tape.
(c) Stoppers, lids, caps and other closures.
Explanatory Notes 39.23. By contrast, the corollary Explanatory Notes to HTSUS Heading 3924 include articles such as:
Tableware such as tea or coffee services, plates, soup tureens,
salad bowls, dishes and trays of all kinds, coffee-pots, teapots,
sugar bowls, beer mugs, cups, sauce-boats, fruit bowls, cruets,
salt cellars, mustard pots, egg-cups, teapot stands, table mats,
knife rests, serviette rings, knives, forks and spoons. . . .
Kitchenware such as basins, jelly moulds, kitchen jugs, storage jars,
bins and boxes (tea caddies, bread bins, etc.), funnels, ladles,
kitchen-type capacity measures and rolling-pins. . . . Other
household articles such as ash trays, hot water bottles,
matchbox holders, dustbins, buckets, watering cans,
food storage containers, curtains, drapes, table covers, and fitted
furniture dustcovers (slipovers). . . . [and] Hygienic and toilet articles.
Explanatory Notes 39.24 (A)–(D). The Explanatory Notes indicate that the range of products intended to be included in HTSUS Heading 3923, such as containers and cassettes, is narrower than the range of products intended to be included in HTSUS Heading 3924, which vary from tableware to toilet articles. Explanatory Notes 39.23 (a)–(c); Explanatory Notes 39.24 (A)–(D).
The court concludes that HTSUS Heading 3923 provides a more specific description than HTSUS Heading 3924. In accordance with GRI 3, the court concludes that the subject merchandise are classified under HTSUS Heading 3923.
For the foregoing reasons, the court concludes that Plaintiff’s plastic bags are classified under HTSUS subheading 3923.21.00. Judgment to be entered accordingly.
The remarkable point is that S.C. JOHNSON stated that Ziploc is not to be expected to use sandwich bags for the packaging or conveyance items outside the home, but instead, ultimate purchasers expect to use the sandwich bags in their homes.
If you love Ziplock, do not bring it to a park to have lunch! stay it at home!!!