Federal Circuit: a Ziploc is a bag.

SC Johnson & Son v. USA (Fed. Cir. 2021)

This is a tariff (importation tax) case, so you might stop reading here.   But, it also involves Ziploc brand food-grade sandwich bags. SC Johnson manufactures the bags in Thailand for US import.

There is a big (electronic) book known as the Harmonized Tariff Schedule of the United States (“HTSUS”) that is used to classify commercial imports.  Each classification will have its own tariff rate, that will often also depend upon other factors such as the country of origin.

In this case, the Customs (part of Homeland Security) classified the bags under HSTSUS Subheading 3923.21.00, but SCJohnson argues that the proper classification is 3924.90.56, which would reduce the tariff from 3% ad valorem to 0% (duty free).

3923.21.00–Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: Sacks and bags (including cones): Of polymers of ethylene.  [3% tariff ad valorem]

3924.90.56–Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Other: Other. [Nominally 3.4% tariff, but duty free under the Generalized System of Preferences]

The United States Court of International Trade found that the bags could be classified under either heading and consequently chose what it deemed to be the more specific–bags made of ethylene.  On appeal, the Federal Circuit has affirmed.

The Federal Circuit follows a similar law/fact divide that it does for patent infringement. “(1) determining the proper meaning of the tariff provisions, which is a question of law; and (2) determining which heading the particular merchandise
falls within, which is a question of fact.”  Slip Op. (Quoting Deckers (Fed. Cir. 2008)).

One of the key questions in the appeal is whether the 3924 heading should be classified as a “use provision” or an “eo nomine” provision.

An eo nomine provision ‘describes an article by a specific name,’ whereas a use provision describes articles according to their principal or actual use.

Slip Op. Quoting Schlumberger (Fed. Cir. 2017) and Aromont (Fed. Cir. 2012).  Use provisions are more narrowly construed – and that would make it more likely that the court would choose SCJohnson’s preferred classification.   On appeal though, the Federal Circuit interpreted it as eo nomine and affirmed.

8 thoughts on “Federal Circuit: a Ziploc is a bag.

  1. 3

    In further nonpatent news, the opinion in Van Buren v. U.S. is out this morning.

    The result is as I wanted, although I can’t say I predicted it!


    1. 3.1

      “The result is as I wanted, although I can’t say I predicted it!”

      You’re a big fan of laws that use the “lolcommerceclause” to expand the federal government’s reach into everyone’s day to day lives? I mean, I also would like police to be more regulated in their ability to get everyone’s information, and perhaps states should crack down on it, but getting the feds involved is a no no to me. If anything the underlying law should be cabined.

      link to en.wikipedia.org

      1. 3.1.1

        Your discontent seems misplaced. The majority opinion did exactly what you and I both wanted: It cabined the CFAA’s reach. (Alternately, one could say it interpreted the statute properly and rejected an overly expansive take.) That’s cause for celebration is it not?

        (Data privacy is quite important too, but the CFAA is a bad vehicle for getting to that destination.)


          Oh I missed that part in my skimming of the huge decision. I will try to take a look at it in more detail later. Perhaps you can give me just a couple of sentences on how it interpreted it somewhat narrowly etc for now?


            Sure. The money portion really starts on the last paragraph of p. 11 going through p. 14 and first two lines of p. 15. Basically, the key is taking “access” to have a technical meaning in the context of the statute, so it becomes a binary proposition. One either can or can’t access a computer itself, regardless of what purpose one has in the former case. Likewise, one either can or can’t access particular information while engaging in authorized computer use. Since VB unquestionably could access the license plate database at issue, he didn’t commit a CFAA violation despite his illicit purpose. I’m simplifying a bit obviously, but that’s about the essence of it.

            That said, while the outcome is certainly better than the gov’t’s alternative, it could have been a lot stronger had the majority delved more into the technical aspects. I’m specifically referring to the “code-based” approach championed by Prof. Kerr. The majority just dismisses that in a quick footnote (#8), but I think unless you go that far, it still opens the door slightly for possible mischief. While I of course don’t agree with the dissent’s overall position, it does mention on p. 8 a Windows solitaire hypothetical that might be viewed as an “awkward result” of the majority’s interpretation.


              Bro I’m reading this thing a bit now, this is fin hilarious. Bropolice asked a rando for a loan when rando was down at the jail house. Rando somehow records him asking for a loan and complains to local sheriff etc. about being “shaken down” for money by the bropolice. This, hilariously, goes to the mfin FBI. The FBI comes up with a sting wherein rando will ask the bropoliceman to look up a STRIPPER that he suspects is an undercover agent (apparently a FEDERAL agent). Rando pays bropoliceman 5k to look up stripper’s tags to see if she is, in fact, a Fed. Bropoliceman does this and the feds swarm swarm swarm.

              Hilarious read. Comedy of Farce. How Respectable lawltards with pinkies raised actually let this go to the supremes is beyond me. All this bs because this cop asked rando for a loan. What a waste of time. But god bless this borderline corrupt copper for his great service of going to the supremes about this.

              link to supremecourt.gov

              In any event I appreciate your breakdown that’s pretty close to it.

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