Federal Circuit Upholds CBP's Method for Weighing Tobacco Wraps

The U.S. Court of Appeals for the Federal Circuit on May 6 affirmed the Court of International Trade's ruling in a customs spat over tobacco wraps. Submitting an opinionless judgment order, Judges Timothy Dyk, Jimmie Reyna and Todd Hughes affirmed the trade court's decision to allow the results of a particular customs test into evidence used to weigh the tobacco wraps.

Importer New Image Global filed the case to fight for a lower excise tax on its tobacco wraps, which were classified as roll-your-own tobacco, subjecting them to the excise tax. The wraps are made with ethanol, which "gasses off" when the package is opened and the wrap is exposed to air. New Image has argued that this process will shed between 10% and 13% of the wraps' weight by the time they reach the final consumer and notes that any lab test that finds that the wraps gain weight in storage and transit from the Mexican factory to the United States is "inherently unreliable" (see 2202180041).

CBP used an "indirect method" for weighting the wraps that included the weight of additives. New Image challenged CIT's acceptance of such a weighing method. Ultimately, the Federal Circuit sided with the lower court however, it did not explain its rationale for the decision.

(New Image Global v. United States, Fed. Cir. #19-2444, dated 05/06/22, Judges Timothy Dyk, Jimmie Reyna and Todd Hughes. Attorneys: Elon Pollack of Stein Shostak for plaintiff-appellant New Image; Hardeep Josan for defendant-appellee U.S. government)