HQ 0088814 - Classification of a frozen dairy product - United States International Trade Commision Rulings

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HQ 088814

June 4, 1991

CLA-2 CO:R:C:F 088814 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 2105.00.0090

Mr. John Claude
Pajerol SA
B.P. 68
29413 Landerneau Cedex
France

RE: Classification of a frozen dairy product

Dear Mr. Claude:

This is in reply to your April 30, 1991 facsimile request for a binding ruling on the tariff classification of a frozen dairy product under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Although no sample was submitted, you provided a description of the product, including the ingredients and the processing.

FACTS:

The imported product contains 85% by weight of sweetened fermented milk product, i.e. yogurt and other fermented and mixed milk, folded in with 15% of sweetened milk product, i.e. sherbet, and contains live cultures. The butterfat content is not over 5.5% by weight. The yogurt ingredient is prepared with the usual yogurt producing bacteria, namely lactobacillus bulgaricus and streptococcus thermophilus. The fermented and mixed milk ingredient includes the same two bacteria plus two other bacterial cultures. In production, the yogurt is added to a holding vat, along with the fermented and mixed milk and the sherbet. Various natural flavors may be added. The product is mixed, during which process air is pumped into the material to increase the volume of the product, and then frozen at minus- seven degrees Celsius. Finally, the product is packaged into one liter containers, tunnel-frozen to minus 40 degrees Celsius, then stored prior to shipping.

The product will be imported either plain, or in such flavors as vanilla, strawberry or exotic fruit. The packaging will be primarily in retail one-liter containers of frozen hard pack product, or in "Drumstick cases" consisting of hard pack frozen yogurt on a cone, four cones per case.

ISSUE:

Whether this frozen dairy product is classifiable in heading 0403, HTSUSA, as "Buttermilk, curdled milk and cream, yogurt, kephir and other fermented or acidified milk and cream, whether or not concentrated or containing added sugar or other sweetening matter or flavored or containing added fruit, nuts or cocoa," or in heading 2105, HTSUSA, as "ice cream and other edible ice, whether or not containing cocoa."

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

At first blush, this product could be classified as a fermented milk product. The addition of the special sherbet mixture in preparation for freezing, the addition of air to increase the frozen volume of the product, and the freezing and packaging of the product as a dessert or confectionery-type preparation, rather than freezing for preservation in shipping, are processes not generally associated with the goods of heading 0403. Such specialized processes are typical of the goods of heading 2105, and we believe that this heading more specifically provides for the product under consideration herein.

As provided in the Explanatory Notes for heading 2105, products included are "ice cream, which is usually prepared with a basis of milk or cream, and other edible ice (e.g., sherbet, iced lollipops), whether or not containing cocoa in any proportion." The remainder of this note merely advises that excluded from this heading are mixes and bases for ice cream which are classified according to their essential constituents. We find instructive, however, the "Explanatory Notes to the Combined Nomenclature of the European Communities," which describe the scope of a corresponding heading and provide a more expansive description of the products covered:

For purposes of this heading "ice cream and other edible ice" means food preparations, whether or not put up for retail sale, whether or not containing cocoa or chocolate (even as a coating), which are in a solid or paste-like state as a result of freezing and which are intended to be eaten in that state.

The essential characteristic of these products is that they revert to a liquid or semi-liquid state at an ambient temperature of [zero degrees] C.

In the production of certain edible ices, air is incorporated into the raw materials used in order to increase the volume of the finished product (expansion). [Emphasis added]

Based upon the foregoing, we believe that the subject dairy product has the essential character of the goods provided for in heading 2105, HTSUSA. It is a frozen food preparation containing added sweeteners and flavorings, as is typical of this product category, and it is intended to be eaten in that state. At zero degrees Celsius, it will revert to a liquid or semi-liquid state. It has a basis of milk or cream, and, in its production, air is incorporated into the substance in order to increase its finished volume.

Furthermore, the subject food preparation has been so processed as to be more specifically provided for as a product of heading 2105 vice 0403. While the Explanatory Notes for heading 0403 indicate that products of that heading may be in "paste or solid (including frozen) form," in this case we do not interpret that language as including frozen confections, but, rather, as including products of heading 0403 that are frozen simply for preservation during storage and/or transportation.

Finally, since this product contains 85% by weight of sweetened fermented milk product and contains live cultures, we believe that it is excluded from quota set out in subheading 9904.10.60 ("... articles of milk or cream (except ... (b) fermented milk other than dried fermented milk, ... provided for in [subheading] 2105.00.00 ..."). Accordingly, we find that the subject product is properly classifiable under subheading 2105.00.0090, HTSUSA, the residual subheading for other products of heading 2105, not subject to quota.

HOLDING:

Edible ice consisting of 85% by weight of sweetened fermented milk product and 15% sherbet, the final volume of which has been expanded by incorporating air into the raw materials during the production process, and which reverts to a liquid or semi-liquid state at or above zero degrees Celsius, intended to be eaten in such frozen state, i.e., which is frozen not merely for purposes of preservation during storage and/or shipping, is classifiable under subheading 2105.00.0090, HTSUSA, is not subject to quota and is dutiable at the general rate of 20% ad valorem.

Sincerely,

John Durant, Director

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