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HQ 951907

September 1,1992

CLA-2 CO:R:C:F 951907 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 1901.90.9060

Timothy C. Stanceu, Esq.
Hogan & Hartson
555 Thirteenth St. N.W.
Washington, D.C. 20004-1109

RE: Classification of a chocolate-flavored malt product from Jamaica

Dear Mr. Stanceu:

Your letter of April 28, 1992, concerns the tariff classification of a chocolate-flavored malt product of Jamaica, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The chocolate-flavored malt drink, is a granular product, put up in 14.1-ounce retail containers, to be mixed with hot or cold milk to make a beverage. In composition, it is said to contain over 30 percent malt extract, about 20 percent non-fat milk solids, over 10 percent cocoa powder, with lesser amounts of sweeteners and other ingredients.

ISSUE:

Classification of a chocolate-flavored malt product with over 10 percent by weight of cocoa powder.

LAW AND ANALYSIS:

In behalf of the importer it is urged that the malt product can not be classified under heading 1901, HTSUS, since it has over 10 percent cocoa powder, so that it is not a food preparation of headings 0401 to 0404, described in subheading - 2 -

1901.90.30 and, in any event, it lacks the essential character of an article of milk or cream. In addition, classification as a preparation of malt in subheading 1901.90.9060, HTSUS, is not deemed appropriate, since the essential character was felt to be the cocoa powder not the malt. Accordingly, it is urged that the product be classified under subheading 1806.90.0078, HTSUS, as a food preparation containing cocoa.

Note 1 to Chapter 18, HTSUS, states that the chapter does not cover preparations of various headings of food stuffs in 1901. As for preparations of malt extract, the Explanatory Notes indicate that this heading relates, in part, to food preparations of malt extract, not containing cocoa powder or containing cocoa powder in a proportion by weight of less than 50 percent. Examples of the preparations covered in the provision, include those which are a mixture of egg powder, milk powder, malt extract and cocoa powder.

Thus, as a matter of relative specificity, based on the composition of the product, heading 1901 is more specific than chapter 1806. The principle ingredients are the malt extract and milk, with the malt extract far outweighing the milk. As pointed out, the explanatory notes define malt preparations as preparations including egg, milk and cocoa powders. Therefore, the import, even though chocolate flavored, is a product whose essential character is imparted by the malt extract.

HOLDING:

The product with the formulation set out above is classifiable as a food preparation of malt extract containing cocoa powder in a proportion by weight or less than 50 percent, not elsewhere specified or included, in subheading 1901.90.9060, HTSUS. The rate of duty in the General column is 10 percent ad valorem. However, products classifiable in this subheading produced in a beneficiary country of the CBERA (which includes Jamaica) would be entitled to duty free status, if they meet all of the requirements.

Sincerely,

John Durant, Director

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