United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1990 HQ Rulings > HQ 0084951 - HQ 0085014 > HQ 0084981

Previous Ruling Next Ruling


HQ 084981


June 19, 1990

CLA-2 CO:R:C:G 084981 RFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.6099;2309.10.0010;2309.90.1045

Mr. Harold I. Loring
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, NY 10017

RE: Nutritional food preparations

Dear Mr. Loring:

This ruling letter is in response to your request of June 29, 1989, on behalf of Bee-Alive, Inc., concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain nutritional food preparations. Samples were submitted for examination.

Please be advised that your request for confidential treatment for information set forth in this ruling letter is hereby denied because there exists no privileged or confidential information in this letter.

FACTS:

There exist five separate products. Each of the five products contains plant- or animal-based extracts, included among which are various proportional amounts of honey and royal jelly. Each of the five products may be identified and more particularly described as follows:

(1) Regina Royal Five
pure honey..............207 g bee pollen...............11 g royal jelly...............5 g natural vitamin C.........4 g

This product is marketed in a jar.

(2) Regina Royal Jelly Capsules
pure honey..............200 mg wheat germ oil..........180 mg royal jelly.............150 mg beeswax..................50 mg soya lecithin............10 mg

This product is marketed in capsules (which are apparently edible and made of gelatin).

(3) Regina Royal Concorde
pure honey (6.6 g).....6600 mg royal jelly.............500 mg almond essence..........150 mg ginseng.................100 mg damiana aphrodisiaca....100 mg serenoa serrulata.......100 mg capsicum..............0.075 mg

This product is marketed in a vial.

(4) Regina Animal Magic Capsules
dogs cats horses
royal jelly..........100 mg 50 mg 500 mg halibut liver oil.....90 mg 1000 mg 0 mg wheat germ oil........75 mg 50 mg 650 mg honey.................25 mg 25 mg 335 mg beeswax...............10 mg 10 mg 100 mg lecithin...............6 mg 5 mg 100 mg vegetable shortening...0 mg 25 mg 300 mg spirulina..............0 mg 0 mg 500 mg

This product is marketed in capsules (with the capsules apparently functioning merely as containers for the liquid product and not intended to be consumed by the animals).

(5) Regina Animal Magic Royale
dogs cats horses
pure honey............16.5 mg 6.6 mg 66 g royal jelly...........1250 mg 500 mg 5 g
almond essence........375 mg 150 mg 1.5 g Korean ginseng........250 mg 100 mg 1 g damiana aphrodisiaca..250 mg 100 mg 1 g serenoa serrulata.....250 mg 100 mg 1 g capsicum............0.1875 mg 0.075 mg 0.75 mg

This product is apparently marketed in liquid form.

ISSUES:

(1) Whether nutritional preparations containing plant- or animal-based extracts--including honey and royal jelly in whatever proportional amounts--are classified under heading 2106 in the HTSUSA as food preparations not elsewhere specified or included under other headings in the HTSUSA.

(2) Whether nutritional preparations containing plant- or animal-based extracts--including honey and royal jelly in whatever proportional amounts--and marketed, sold, or distributed for use in animal feeding but consumable by humans are classified under heading 2309 in the HTSUSA as food preparations of a kind used in animal feeding.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

Heading 2106 provides for food preparations not elsewhere specified or included under other headings in the HTSUSA. The Explanatory Notes to heading 2106 state that this heading includes, inter alia, "[n]atural honey enriched with bees' royal jelly [and] [p]reparations, often referred to as food supplements, based extracts from plants, fruit concentrates, honey, fructose etc....[,] [which] are often put up in packagings with indications that they maintain general health or well-being" (emphasis in original). See Explanatory Notes (5) and (16) to heading 2106, HTSUSA. It is clear, then, that prepared food substances (whether in liquid or solid or capsule form) not elsewhere specified or included under other headings in the HTSUSA, particularly substances containing, among other things, plant- and animal-based extracts (e.g., honey and royal jelly in whatever proportional amounts) and prepared specifically for health or nutritional purposes, are classified under heading 2106 of the HTSUSA.

Heading 2202 provides for waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009. The Explanatory Notes to heading 2202 state that this heading covers nonalcoholic beverages and includes, inter alia, "[b]everages such as lemonade, orangeade, cola...[which] are generally presented in bottles or other airtight containers...[and] ...[c]ertain other beverages ready for consumption, such as those with a basis of milk and cocoa." It is evident, then, that beverages, as the term is contemplated by this heading, consist of drinkable liquid substances which are marketed, sold, or dis- tributed in multi-ounce containers (e.g., bottles) for consumption in significant (i.e., multi-ounce) and non-measured (e.g., not marketed, sold, or distributed in dosage form or in vials) quantities, and not necessarily consumed for strictly health or nutritional purposes (e.g., colas). Accordingly, food preparations in liquid form, containing, among other things, honey and royal jelly (in whatever proportional amounts), marketed, sold, or distributed in vials or other like containers for consumption in small, measured, or dosage-form quantities, and taken for nutritional or health purposes would, most certainly, not be classified as "beverages" under heading 2202 of the HTSUSA.

Heading 0410 provides for (1) edible products of animal origin (i.e., animal products in an unprocessed or unprepared state, e.g., turtles' eggs and salanganes' nests--see Explanatory Notes to heading 0410) that are (2) not elsewhere specified or included under other headings in the HTSUSA. Nutritional food preparations containing various types of plant- or animal-based extracts, including, among other things, honey and royal jelly (in whatever proportional amounts), would not be classified under heading 0410 because such items are, quite obviously, something more than mere "edible products of animal origin" (as such items are preparations that contain various ingredients--including, among other things, edible products not of animal origin--some or all of which have been processed or prepared).

In light of the above, it has been conclusively established that the above-described products identified as Regina Royal Five, Regina Royal Jelly Capsules, and Regina Royal Concorde are classified under heading 2106, HTSUSA, as these products are simply nutritional and healthful food preparations consumable by humans and not elsewhere provided for or included under other headings in the HTSUSA.

Heading 2309 provides for preparations of a kind used in animal feeding. Explanatory Note (II)(C)(c) to heading 2309,
however, states that heading 2309 excludes "[p]reparations which, when account is taken, in particular, of the nature, purity and proportions of the ingredients, the hygiene requirements complied with during manufacture and, when appropriate, the indications given on the packaging or any other information concerning their use, can be used either for feeding animals or for human consumption...." Although apparently consumable by humans, the above-described products identified as Regina Animal Magic Capsules and Regina Animal Magic Royale are marketed, sold, and distributed as food preparations for use in the feeding of dogs, cats, and horses. These products are, then, of the type provided for under heading 2309, and therefore should be classified under that heading.

In your request, you invoke the concept of "essential character" in your argument regarding the proper classification of the above-identified products. Please be advised that this concept is only applicable, pursuant to GRI 3, when (1) classification cannot be determined according to the terms of the headings and relative section or chapter notes, (2) the goods (or products) are, prima facie, classifiable under two or more headings, and (3) GRI 3(a) is not applicable (i.e., there exists no heading that provides the most specific description of the goods (or products) as among headings providing a more general description). As has been established above, the above- described products identified as Regina Royal Five, Regina Royal Jelly Capsules, and Regina Royal Concorde are provided for under heading 2106 and the above-described products identified as Regina Animal Magic Capsules and Regina Animal Magic Royale are provided for under heading 2309. Therefore, classification has been determined according to the terms of the headings. Consequently, each of the products is classifiable under only one heading and not, prima facie or otherwise, under two or more headings.

HOLDING:

The above-described products identified as Regina Royal Five, Regina Royal Jelly Capsules, and Regina Royal Concorde are classified under subheading 2106.90.6099, HTSUSA, which provides for food preparations not elsewhere specified or included, other, other, other, other, other. The rate of duty under this subheading is 10% ad valorem.

The above-described products identified as Regina Animal Magic Capsules and Regina Animal Magic Royale are classified (1) under subheading 2309.10.0010, HTSUSA, which provides for preparations of a kind used in animal feeding, dog or cat food, put up for retail sale, in airtight containers, if marketed, sold, or distributed for use in the feeding of dogs or cats and

(2) under subheading 2309.90.1045, HTSUSA, which provides for preparations of a kind used in animal feeding, other, mixed feeds or mixed feed ingredients, other livestock feed, prepared, if marketed, sold, or distributed for use in the feeding of horses. Products classified under subheadings 2309.10.0010 and 2309.90.1045 may be entered free of duty.

Sincerely,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: