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HQ 083533


May 12, 1989

CLA-2 CO:R:C:G 083533 SM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2402.90.00

Dr. I. Redstone
Honeyrose Products Ltd.
Creeting Road
Stowmarket, Suffolk 1P14 5AY
England

RE: Tariff classification of herbal cigarettes

Dear Dr. Redstone:

Your letter of November 18, 1988, addressed to our New York office, requesting a tariff classification ruling for herbal cigarettes, has been referred to this office for reply.

FACTS:

Samples of the cigarettes were submitted. They contain no tobacco or nicotine but are made with herbs or other materials including coltsfoot, clover, rose petals, marsh- mallow leaves, and ginseng. They are stated to be for smokers who wish to smoke less and avoid the effects of nicotine. You inquire as to both their tariff status and federal excise tax status.

ISSUE:

How are the herbal cigarettes classified? Are federal excise taxes applicable?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation. GRI 1 provides that classi- fication is determined first in accordance with the terms of the headings of the tariff and any relative section or chapter notes and then, if the headings and notes do not otherwise require, in accordance with the remaining GRI's.

Heading 2402, HTSUSA, covers cigarettes of tobacco or of tobacco substitutes. Note 1 of Chapter 24 excludes medicinal cigarettes from the chapter. The term tobacco substitutes is not defined in the tariff. The Explanatory Notes (EN), the official interpretation of the HTSUSA at the international level, for heading 2402 indicate that the term cigarettes of tobacco substitutes is intended to include, "for example, 'cigarettes' . . . made from specially processed leaves of a variety of lettuce, containing neither tobacco nor nicotine." The EN go on to state that "cigarettes containing certain types of products specifically formulated to discourage the habit of smoking but which do not possess medicinal properties remain classified in this heading." Thus nonmedicinal non- tobacco cigarettes such as herbal cigarettes are intended to be included under this heading.

Goods classified under heading 2402, HTSUSA, may be sub- ject to federal excise taxes. Cigarettes are included. 26 U.S.C.A. { 5701(b) (1980 and Supp. 1988). However, the term cigarette is limited to wrapped rolls of tobacco. 26 U.S.C.A.

HOLDING:

The herbal cigarettes are classified under subheading 2402.90.00, HTSUSA, a provision including other cigarettes not containing tobacco. The 1989 Column 1 rate of duty is $2.34/kg plus five percent ad valorem. No federal excise tax applies.

Sincerely,

John Durant, Director
Commercial Rulings Division

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