What Is a Bra? Fed. Cir. Decides in Victoria's Secret Tariff Case

By Mark Wilson, Esq. on October 17, 2014 | Last updated on March 21, 2019

The Harmonized Tariff Schedule of the United States is a 3,000-page book that classifies every single thing that enters the country, all for the purpose of determining how to tax it when it gets here. For example, black tea is free, but flavored green tea will cost the importer 6.4 percent. A T-shirt made of man-made fibers has a whopping 32 percent tariff, but if it's cotton, then it's only 16.5 percent.

The point is that how you classify something makes a big difference when it comes to paying taxes. Victoria's Secret, like most clothing companies, manufactures clothes overseas and then imports them. They make something called a Bra Top and another thing called a Bodyshaper. The Court of International Trade said these were "other garments, knitted or crocheted," which requires a 10.8 percent tariff. Victoria's Secret, on the other hand, says they should be considered "brassieres, girdles, corsets [...] and other similar articles and parts thereof." That's only 6.6 percent.

A Bra by Any Other Name ...

What makes a bra a bra? That was the question for the Federal Circuit in Victoria's Secret v. United States. The problem is that the Bra Top and Bodyshaper are bras built into a sleeveless top. This hybrid textile is known in the industry as a "shelf bra camisole," which performs the dual functions of providing outerwear coverage and support.

Applying the doctrine of ejusdem generis (there's a federal court word for you), the court concluded that, in order to qualify for the lower tariff rate, the Bodyshaper and Bra Top had to reasonably fit in the same category as bras and girdles.

So what's different about a bra? Basically that its only function -- or, at least, its "essential" function is support. The Court of International Trade and the Federal Circuit agreed that, once a garment provides something inconsistent with support, it ceases to be of the same kind as a bra, girdle, or corset. (For example, some types of evening gowns or jeans also provide support, but it would be silly to claim that they belong in the same category as a bra.) Finding that outer covering isn't consistent with providing support, the court found that the Bra Top and Bodyshaper must be classified under the higher tariff rate.

Dissent: If It Walks Like a Bra and Quacks Like a Bra ...

Judge Jimmie Reyna couldn't support the court's decision, saying the majority "improperly focuse[d] on an article's 'paramount' function instead of its essential characteristics." All the examples of garments listed along with bras and corsets have support as one function -- but, he said, there's no reason to believe that outer coverage is inconsistent with that function.

He also faulted the majority's reasoning as reviving a defunct tariff interpretation method calling the "more than" doctrine, which held that an imported article couldn't be classified under a particular heading if its other functions were greater than or equal to another heading.

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