CBP Says 'Adaptive Clothing' for Handicapped Not Eligible for Duty-Free Subheading

An "adaptive clothing" line meant “to offer branded fashionable clothing to the underserved community of the differently-abled consumer" doesn't meet the requirements for duty-free treatment under tariff subheading 9817.00.96, CBP said in a June 29 ruling. That subheading is reserved for "articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons.” The ruling request came from PVH, which owns the Tommy Hilfiger brand.

At issue is a Tommy Hilfiger “adaptive clothing line for the differently abled” that are adapted from the main line of Tommy Hilfiger clothes. The adaptive clothing is available from the Tommy Hilfiger website and possibly available elsewhere as part of a partnership with the New Jersey Special Olympics, the company said. The items use hidden magnets to allow for bigger openings when getting dressed or undressed, it said. One of the garments mentioned also uses a special zipper with magnets to allow for users to open and close it with one hand.

The Harmonized Tariff Schedule doesn't give "a clear definition of what constitutes 'specially designed or adapted for the use or benefit' of handicapped persons," CBP said. Instead, CBP looked at the legislative history behind the implementation of the Nairobi Protocol, which created the subheading in the U.S. "CBP has recognized several factors to be utilized and weighed against each other on a case-by-case basis," it said. Here, "upon examining the samples and multiple marketing links and materials, we do not find that the physical properties of the subject garments are readily distinguishable from articles useful to non-handicapped individuals," CBP said.

Also, Congress didn't intend for duty-free treatment to apply to "insignificant adaptations," CBP said. The changes to the clothes aren't "significant so as to clearly render the garments for use by handicapped individuals," CBP said. For example, the magnetic zipper "added between $7.00 and $8.50 to the cost of the 'main line' product," CBP said. "Thus, only approximately 5.4% to 6.6% of the garment’s $129.50 retail price is attributable to the modifications on which PVH bases its claim for duty-free treatment under 9817.00.96." Additionally, "any individual can access and purchase these garments at any time," CBP said. As a result, "we find that the subject garments do not qualify for duty-free treatment under subheading 9817.00.96," CBP said.