DOJ Takes Too Narrow View of Printed Materials, Aluminum Packaging Importer Says

The Department of Justice takes too narrow a view on when labeling qualifies as printed material in the tariff schedule, Amcor Flexibles Kreuzlingen said in a June 7 brief responding to DOJ’s motion for judgment in a classification case at the Court of International Trade. Amcor argues that the printed labeling on its pharmaceutical packaging is of primary importance, and the packaging should as a result be classified in heading 4911 as printed matter, rather than as aluminum foil of heading 7607.

The explanatory note (EN) to heading 7607 explicitly excludes printed aluminum foil labels, and Amcor’s packaging is not classifiable in that heading, despite DOJ’s arguments otherwise, Amcor said. “Defendant’s argument against application of the EN exclusionary language in this case is that the packaging materials are not the type of labels excluded from Heading 7607 since the ENs ‘are referring to standalone aluminum foil labels,’” Amcor said. “However, Defendant cites no support for its interpretation that the label exclusion is based on the form of the label rather than its printing.”

Rather, “the test for identifying whether the essential nature and use is determined by the printing is whether the printing is merely incidental to the primary use of the good,” Amcor said. “Where the printing is communicative, that determines the essential nature and use of the product.”

In the case of Amcor’s drug packaging, the labeling is “a critical safety feature of the subject packaging materials,” the importer said. “To highlight this requirement, consider a scenario with identically packaged pills – one is a life-saving drug and the other is poison that would cause certain death. How would a consumer know what pill to take without the critical information printed on the packaging material? While this may be an extreme example, the importance of the printing is highlighted as it could mean life or death.”

While DOJ says that the barrier properties of the material that forms the packaging -- the same Formpack material that CIT has previously found classifiable in heading 7607 (see 2001100059) -- “the packaging material has become the medium for the critical printed information in this case because it has a communicative purpose,” Amcor said. “Therefore, whatever other functions the packaging material may have (e.g., barrier), the printing is part of the essential nature of this product.”

And DOJ’s reliance on that earlier classification case on Formpack is misplaced, Amcor said. The facts in this case are different. In the prior case, the packaging was unprinted. And unlike in this case, the dispute in the earlier case centered on whether the packaging is classifiable in heading 7607 or heading 3921.