HQ 0085662 - Food Additives - United States International Trade Commision Rulings

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HQ 085662

October 12, 1989

CLA-2:CO:R:C:G 085662 SER

CATEGORY: CLASSIFICATION

TARIFF NO.: 3823.90.3900

Mr. K. Seto
Sumitomo Corporation of America
345 Park Avenue
New York, NY 10154

RE: Food Additives

Dear Mr. Seto:

This is in reference to your letter of August 1, 1989, requesting a classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of three food additives from Japan.

FACTS:

The products are identified as Prebest TP 933, Prebest TP 5330, Murin Ace A, and HDS. TP 933 is described as odorless white granules, composed of 93.05 percent sorbitol, 3.81 percent mono and diglycerides of edible fats or oils, or edible fat- forming acids, and 1.57 percent each of sodium pyrophosphate and sodium tripolyphosphate. TP 933 is used as a quality improver for surimi (a minced fish preparation). TP 5330, a white granular or powdered product, is composed of 88.12 percent sorbitol, 6.52 percent mono and diglycerides, and 2.68 percent each of sodium pyrophosphate and sodium tripolyphosphate. TP 5330 is also used as a quality improver for surimi. HDS is said to be a white crystalline powder, made of 77 percent sodium chloride, 22 percent magnesium chloride, and one percent sodium carbonate. HDS is used as a dehydrating aid for surimi. No information was provided for Murin Ace A.

ISSUE:

Whether the products at issue are classifiable as chemical mixtures under heading 3823, HTSUSA, or as food preparations under heading 2106, HTSUSA.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation-2-
provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter notes.

Heading 3823, HTSUSA, provides for miscellaneous chemical products not specifically provided for in any other section of the HTSUSA. Legal Note 1(b) to Chapter 38 excludes mixtures of chemicals with foodstuffs or other substances with nutritive value, of a kind used in the preparation of human foodstuffs. Products of this nature are directed to heading 2106, HTSUSA, which provides for food preparations not elsewhere specified.

Sorbitol's use in food does not make it a "foodstuff". The Explanatory Notes, which constitute the official interpretation of the tariff at the international level, for subheading 2106 identify flour, sugar, and milk powders as examples of what is included in the term "foodstuffs". Headquarters Ruling Letter (HRL) 084421, dated May 31, 1989, stated that only "recognized food ingredients" fall within that term.

It is the position of Customs that sorbitol, the main ingredient in TP 5330 and TP 933, is a chemical. Sorbitol is a polyhydric alcohol, a hexitol, manufactured by catalytic hydrogenation of glucose. The United States Food and Drug Administration identifies sorbitol as a chemical with several food uses, although, it has non-food uses as well. It has been Customs' position that the exclusion from Chapter 38 is applicable if chemicals are mixed with items that may be called foodstuffs or substances with nutritive values. In HRL 083305, dated July 31, 1989, a mixture of a chemical with cocoa butter, where the cocoa butter comprised over 88 percent of the mixture, was considered to be properly classifiable under subheading 2106, HTSUSA. Here, sorbitol, a synthetically produced chemical, is not mixed with other foodstuffs and, thus, this would not be excluded from Chapter 38, HTSUSA.

HOLDING:

The products at issue- Prebest TP 933, Prebest TP 5390, and HDS- are properly classified in subheading 3823.90.3900, HTSUSA, which provides for chemical products and preparations of the chemical or allied industries, not elsewhere specified or included; other, other. The products are free of duty.

Sincerely,

John Durant, Director
Commercial Rulings Division

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