HQ 0951488 - Classification of cake decorations that contain dairy ingredients. - United States International Trade Commision Rulings

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HQ 951488

Dec 17,1992

CLA-2 CO:R:C:F 951488 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.30

Michael K. Tomenga, Esq.
McKenna & Cuneo
1575 Eye Street, NW
Washington, D.C. 20008

RE: Classification of cake decorations that contain dairy ingredients.

Dear Mr. Tomenga:

This is in reference to your interest in the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of products referred to as "white cake glaze" or "white confectioner's coating." Although reconsideration of certain rulings was requested, in addition your client, Mr. Schott, is interested in obtaining a ruling on a similar product. A meeting was held on this issue on July 9, 1992.

Specifically, five rulings concerning this type of product were mentioned. Since your client was not the recipient of any of those decisions, Customs is precluded from reviewing the decisions on that basis. See 19 CFR 177.

FACTS:

The product which you are interested in obtaining a ruling on is called "C2045 White Glaze", which is said to be used by bakers and confectioners to coat and decorate cakes and confections. It is composed of:

Ingredient Percentage

Sugar 46
Vegetable Fat 41.7
Skim Milk Powder 11.6

Under the prior tariff law, it is asserted, the glaze was classified as an edible preparation in item 183.05, TSUS, and as - 2 -
it was regarded as a "cake decoration", it was not subject to quota. It is asserted that the corresponding provision in the Harmonized Tariff Schedule (HTSUS) is the one for Food Preparations in subheading 2106.90.50, HTSUS, and not subheading 1901.90.30, as a food preparation of heading 0401 to 0404, which makes the decorations subject to the dairy quota.

ISSUE:

Classification of cake decorations under the HTSUS.

LAW AND ANALYSIS:

Although the glaze in question may have been classified under the TSUS in a provision which was not subject to quota restrictions, for the purposes of classification under the HTSUS, there are new tariff provisions which Customs has to consider in classifying the imported merchandise.

As to this product, it is claimed that the skim milk powder is the ingredient in least amount and, therefore, while it may impart flavor, it does not give the glaze its essential character. Glazes and decorations in general, it is claimed, contain sugar, vegetable fats and flavorings, so it is felt that the small amount of milk powder present should not determine the classification. However, it is our opinion that it is the milk which makes the difference between this glaze and those which you refer to, the ones which do not contain milk. Considering the amount of milk present, (over 11 percent), it is believed that the milk gives the product its sheen, flavor and to some extent its texture. Thus, there is no reason to resort to GRI 3(c), in regard to competing tariff provisions, but rather this is a food preparation which, because it has over 11 percent milk powder, is one based on goods of heading 0401 to 0404.

It is also suggested that the product should be classified in heading 1704 as a sugar confectionary. However, the Explanatory Notes point out that this heading, while including pastes made of sugar, they are limited to those that contain little or no fat. The product in issue is said to contain over 40 percent fat. - 3 -

HOLDING:

The white glaze described is classifiable as a food preparation of goods of headings 0401 to 0404, in subheading 1901.90.30, dutiable at 17.5 percent ad valorem. It is also subject to the quota restrictions of 9904.10.60, HTSUS.

Sincerely,

John Durant, Director

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