HQ 0088914 - Classification of Bounty Coconut-Flavored Ice Cream Bar - United States International Trade Commision Rulings

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HQ 088914

May 9,1991

CLA-2 CO:R:C:F 088914 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2105.00.00153

Mr. Frank Brennan
DeAngelus & Schaffer
The Willard Office Bldg.
1455 Pennsylvania Ave., N.W.
Washington, D.C. 20004

RE: Classification of Bounty Coconut-Flavored Ice Cream Bar

Dear Mr. Brennan:

Your letter of March 21, 1991, concerns the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an ice cream bar made in France with milk from Great Britain.

FACTS:

The bars are said to be made from unflavored ice cream mix which is pasteurized and then blended with coconut to form the center of the bar. The center mix is then frozen, extruded, and cut into the oval shape characteristic of the Bounty candy bar. The bars are further cooled and then covered with chocolate, and again cooled. They are packaged 2 bars per wrapper, on which it is stated that the product is a coconut flavored ice cream bar and weighs 1.7 fluid ounces.

The approximate composition of the frozen Bounty ice cream bar is given as:
Value Weight Volume

Chocolate 57% 40.5% 27%
Ice Cream 26% 49.0% 38%
Coconut 17% 10.5% 12%
Air n/a n/a 23%

ISSUE:

Whether Bounty ice cream bars are classified as other food preparations in subheading 2106.90.6095, HTSUS, or under the provision for ice cream and other edible ice, whether or not containing cocoa, in subheading 2105.00.00, HTSUS.

LAW AND ANALYSIS:

It is your view that the ice cream bars should be classified under the provision for other food preparations not elsewhere specified or included in subheading 2106.90.6095, HTSUS. You base this opinion on the appearance and taste of the bar, which you feel is similar to a coconut bar. You assert that the value, weight and volume of the product shows that the chocolate and coconut constituents provide the essential character; the alternative classification for the product would be subheading 2105.00.00, HTSUS, the provision for ice cream and other edible ice, whether or not containing cocoa.

Under the prior tariff law, Tariff Schedules of the United States, the Summaries of Trade and Tariff Information, Schedule 1, Volume 4, provided information as to the scope of the provision in the TSUS for ice cream. It noted that the standards of identity were set forth in 21 CFR, in which ice cream was said to be a frozen food containing cream or butterfat, flavoring, sweetening and usually eggs. The most important dairy products used in ice cream are fluid, dried or condensed milk or cream, butter, and butter oil.

The Explanatory Notes to the Combined Nomenclature of the European Communities states that for the purposes of heading 2105:
"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 about 0 degrees C.

However, preparations which, although they have all the the appearance of edible ices, do not possess the essential characteristics described above, fall in either Heading
18.06, Heading 19.01, or Heading 21.06, as appropriate.

The products of this subheading (2105) have varied names (water ices, ice cream, cassata, Neapolitan slices, etc.) and are put up in varied forms; they may contain cocoa or chocolate, sugar, vegetable fat or milkfat, milk (whether or not skimmed), fruit, stabilizers, flavourings, colourings, etc.

The total content of these fats does not, in general, exceed 15% by weight of the finished product. However, certain specialties, for the manufacture of which a large proportion of cream is used, may contain a total about 20% by weight of fat.

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).

It is your view that a previous Customs decision (HRL 085364) sets forth a standard that a product has to have 50% or more ice cream to be classifiable in heading 2105, HTSUS. However, a review of the decision shows that no percentage breakdown was given for the components. The statement that the product contained at least 50% ice cream was made merely for illustrative purposes, so that it would be clear that it was an ice cream product and not another type of food product with a minimum of ice cream. In any event, with products of this type, it is the intended purpose of the product which has to be considered in determining the "essential character", more than an arbitrary component percentage. In this case, the bar is intended to be, and has all the characteristics of, an ice cream novelty.

Under the former tariff law, TSUS, no special provision was made for the ice cream novelty, and, as a result, while it was frequently classified as an "edible preparation" in item 183.05, TSUS, ice cream novelties found to be in chief value of milk or cream were classifiable in item 118.30, TSUS, and subject to quota restrictions.

However, under the HTSUS, heading 2105 would include both ice cream and ice cream novelties, if they fell within the definition of the aforementioned Explanatory Notes to the Combined Nomenclature of the European Communities: A food preparation, which is in a solid or paste-like state as a result of freezing and intended to be eaten in that state. An essential characteristic of these products is that they revert to liquid or semi-liquid state at an ambient temperature.

The instant product has the essential character of the goods provided for in heading 2105. It is a frozen food preparation based on ice cream containing added sweeteners and flavorings, intended to be eaten in this state. It is the type of product which would revert to a liquid or semi- liquid state at ambient temperature; in its production, air is incorporated into the material in order to increase the volume. And what is also relevant in considering the essential character is that it not only tastes like coconut ice cream, but it is evident from the legend on the wrapper, that it is to be marketed as an ice cream novelty.

It is believed that a valid distinction can be drawn between ice cream classifiable in subheading 2105.00.0010, and ice cream novelties classifiable in subheading 2105.00.0015, HTSUS.

Ice cream is the product which satisfies the standards of identity of 21 CFR 135; and, although it may be flavored, it is not combined with other food ingredients to make it something more than ice cream - e.g. ice cream sandwich or ice cream cake. Ice cream novelties, on the other hand, are frozen food preparations consisting essentially of ice cream in combination with other food components to make a variety of specialty items, such as, chocolate covered ice cream bars, ice cream sandwich, ice cream cake, coated ice cream cones, e.g. "Drumsticks", and similar frozen confections.

Both ice cream and ice cream novelties are classifiable in heading 2105, HTSUS, since the essential character of these products is ice cream. Ice cream that fits the traditional definition, i.e., a frozen food containing cream or butterfat, flavoring and usually eggs, and meeting the identity standards of 21 CFR 135, is classifiable in subheading 2105.00.0010, HTSUS. Ice cream novelties, which, in addition to ice cream, contain other food ingredients to make products such as those shown above, are classifiable in subheading 2105.00.0015, HTSUS.

HOLDING:

Bounty ice cream bars are ice cream novelties and, therefore, are classifiable in subheading 2105.00.0015, HTSUS. The rate of duty is 20 percent ad valorem. Products classifiable in this provision are subject to quota restrictions of subheading 9904.10.60, HTSUS, which limits importations to 2,721 kilograms per year. In addition, an import license issued by the U.S. Department of Agriculture is required at the time such merchandise is withdrawn from warehouse or entered for consumption.

Sincerely,

John Durant, Director

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