January 03, 2020

Drinker Biddle Obtains Favorable Tariff Classification Decision on “Backed” Aluminum Foil

A team of Drinker Biddle attorneys, led by Randy Rucker, recently won a case at the Court of International Trade (CIT) for client Amcor Flexibles Singen Gmbh. This case concerns the proper tariff classification of the Company’s Formpack flexible packaging materials. Formpack is made of aluminum foil laminated with plastic film layers and is used as the base material for an “aluminum blister pack.” After considering motions for summary judgment and oral argument from both parties, the CIT determined that the Formpack materials are “backed” aluminum foil properly classified under Heading 7607 of the Harmonized Tariff Schedule of the United States (HTSUS).

The Formpack material was originally classified by U.S. Customs and Border Protection (CBP) under HTSUS Heading 3921 as plastic film. Since Formpack consists of a single layer of aluminum foil with plastic film laminated to both sides, the Government argued that this packaging material had the essential character of plastic and could not be classified as aluminum foil. This assertion was based in part on the Government’s restrictive interpretation of the word “back,” which in their view, limited a “backing” material to only one side of a “backed” aluminum foil. Drinker Biddle countered that Formpack is a “backed” aluminum foil with plastic film layers merely added as support, so these materials cannot define the character of Formpack.

The CIT rejected the Government’s argument that aluminum foil with plastic film on both sides cannot be “backed” foil, stating that “neither the HTSUS nor other authorities cited [by the Government] limit the placement of materials to only a single side of the material being backed, and no other limitation precludes specifically a foil laminated with materials on both sides from being classified as aluminum foil.” Instead, the CIT determined that interpreting the term “backed” to mean “supported” was the best way to give effect to the language of HTSUS Heading 7607.

The CIT found that the aluminum foil was the primary layer of Formpack serving as an absolute barrier to moisture, light, oxygen, other gases, and bacteria. While Formpack gained some properties of plastic, the properties of the combined material were not significantly different from the properties of the aluminum foil layer as they existed prior to being laminated with the plastic film layers. Therefore, the CIT found the aluminum foil is the indispensable component of the Formpack and provides its essential character.

The CIT also rejected the Government’s attempt to apply the holding of a prior Federal Circuit ruling on a different flexible packaging material (Flexalcon). In the CIT’s view, the Flexalcon packaging material in the prior case consisted of different components, in different quantities, in different configurations, for performing different functions.

For more information about this significant victory for Amcor and Drinker Biddle, please read the decision here or contact any member of the Customs & International Trade team.

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