AAFA Opposes Customs Proposal to Reclassify Fashion Footwear

A letter from the President and CEO of American Apparel & Footwear Association, Ricky Helfenbein, regarding revocation of CBP’s rulings.

“November 15, 2019

Attention: Trade and Commercial Regulations Branch
Office of Trade, Regulations and Rulings
U.S. Customs and Border Protection (CBP)
90 K Street, NW
10th Floor
Washington, DC 20229‐1177

RE: Proposed Revocation of Rulings on Certain Fashion Footwear, Customs Bulletin, Page 19, Volume 53,
Number 37, October 16, 2019

To Whom it May Concern:

I am writing on behalf of the American Apparel & Footwear Association (AAFA) – the national trade association
of the apparel, footwear, and travel goods industries, and their suppliers – to strongly oppose CBP’s proposed
revocation of NY N285583, NY N299433, and any related rulings. As the trusted public policy and political voice
of the apparel and footwear industry, its management and shareholders, its nearly four million U.S. workers, and
its contribution of more than $400 billion in annual U.S. retail sales, we believe revoking these rulings would
overturn decades of precedent, industry best practice, and basic common sense.

The footwear market has undergone a major evolution over the last few years. The main drivers have been
comfort, casualization, athleisure, and high‐performance athletic footwear. Today’s consumer no longer wants
fancy dress shoes or fashion pumps, where comfort is sacrificed for the sake of style. Instead, they want comfort
and style, leading to immense growth in the so‐called fashion sneaker category. At the same time, the consumer
wants performance out of their athletic footwear, and is willing to pay for it, leading to an explosion in high‐
performance, lightweight technical athletic footwear. While fashion sneakers and high‐performance athletic
footwear might share some basic traits – flexible outsoles with traction, cushioned insoles, and a secure closure
– the similarities stop there. The fashion sneakers in the rulings in question, and fashion sneakers overall, are
not intended for athletic purposes, and there are at most only a handful of examples of fashion sneakers being
used for athletic purposes. Further, it would be a mistake to wear fashion footwear for an unintended purpose
because it would leave the owner at risk of injury or harm because the shoe was clearly not designed for athletic
use (think of the multitude of fashion sneakers that contain heel wedges). At the same time, most owners would
never even consider using fashion sneakers for athletic purposes, for fear of “destroying” the look, the style, of
the shoe. Instead, today’s consumer owns shoes specifically designed for specific purposes: Fashion footwear
for looks and athletic footwear for athletic activity.

This distinction is critical. As CBP notes in its proposed revocation, Treasury Decision 93‐88, whose definitions
have been used to establish over 25 years of precedent in the industry, provides clear examples of shoes that
never would be used for athletic purposes – “a ‘slip on’ and:
Shoes that resemble sport shoes but clearly could not be used at all in that sporting activity. Examples
include sneakers with a sequined or extensively embroidered uppers.

CBP states that the shoes in question “are suitable for athletic activity” because they have both have flexible
outsoles with traction, cushioned insoles, and a secure closure. Therefore, CBP argues, the shoes should be
classified as “athletic footwear”. However, this “definition” of athletic footwear exists nowhere in the HTSUS or
in TD 93‐88. More importantly, virtually all shoes sold on the market today exhibit some combination of these
features – including dress shoes, casual shoes, and even women’s pumps. Why? Because today’s consumers
demand comfort, with style. They no longer want shoes with leather outsoles that provide no traction or
support. They no longer want shoes that hurt their feet after a few hours of wearing.

Under CBP’s reasoning, however, virtually all shoes sold on the market today should be classified as “athletic
footwear”. However, I don’t see anyone playing soccer in their dress shoes, or going running in their pumps. And
they never would. The same applies to the fashion sneakers in question. The average consumer would never
wear fashion sneakers for a long walk, or short run, or to play basketball or soccer.

To the contrary, the closest the shoes in question, and 99.99% of the shoes sold today like them, will ever be to
a court, or a field, or a track, will be in the bleachers or stands watching the game. Instead, the shoes are worn
for the express purpose of going to work, going out on the town, or going to lunch with friends. They are worn
as a fashion statement, which is the primary intent of purchasing a fashion sneaker, while at the same time
providing the wearer a little comfort. Comfort, with style.

Again, just because a shoe is comfortable, they should not be classified as “athletic footwear, especially when
the shoe could not, would not, and should not ever be used for athletic purposes. The proposed revocation
would also throw out 25 years of precedent, based on the universally accepted definitions laid out in TD 93‐88.
Therefore, I urge CBP to immediately withdraw this proposed revocation and continue to classify the shoes in
question, and all related fashion sneakers, as non‐athletic footwear.

Further, I urge CBP to engage the trade in a larger conversation on fashion versus athletic footwear. As I have
referenced here, the transformation of the footwear market requires a different approach to classifying what is
“athletic footwear”. We hope the discussion sparked by CBP’s proposed revocation will provide the basis for this
much‐needed conversation.

Thank you for your time and consideration in this matter. Please contact Nate Herman of my staff at
nherman@aafaglobal.org for any questions or further information.

Rick Helfenbein
President and CEO, American Apparel & Footwear Association”


Source: American Apparel & Footwear Association

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