A Case of Mint-staken Identity

Turns out Certs may be only one mint after all.

A legal dispute that echoed a familiar advertising campaign -- are Certs breath mints or candy mints? -- ended this week when a federal appeals court ruled that the agency now called U.S. Customs and Border Protection improperly taxed one flavor of Certs as a food item.

Ubiquitous TV ads in the 1960s and 1970s proclaimed that Certs were “two, two, two mints in one.”

But the government and the makers of the mint disagreed about which identity should prevail for tax purposes. Although oral hygiene items aren’t subject to import duties, food items are.

In 1999, customs officials called Certs a candy mint and taxed its makers -- first Pfizer Inc., then Cadbury Schweppes after it bought Pfizer’s candy business -- on Certs imported from overseas factories.

Lawyers for Pfizer and Cadbury fought back, finding an expert to testify before the U.S. Court of International Trade that Certs Powerful Mints stimulate the flow of saliva, which flushes bad odors from the mouth, and contain ingredients that mask bad breath.

The trade court didn’t buy it, ruling that Certs mints didn’t contain antimicrobial agents and therefore “do not promote oral hygiene.”

The ruling triggered millions of dollars in customs duties, a Pfizer lawyer told Bloomberg News. Last summer, the companies appealed.

They got sweet news Wednesday, when the U.S. Court of Appeals for the Federal Circuit in Washington ruled that the international court had “read the ‘hygiene’ term too narrowly.”

Lawyers for the government were not available to say whether they plan further appeals.