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HQ 954142


October 5, 1993

CLA-2 CO:R:C:F 954142 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 1504.10.20; 2106.90.65

Mr. H.W. Ebert
H.W. Ebert Co.
45 John Street
New York, NY 10038

RE: Cherry Flavored Cod Liver Oil and Multivitamin Syrup; Heading 2106, HTSUS, food preparations not elsewhere specified or included; Heading 1504 fats and oils; Not 2936 provitamins and vitamins; Not 3004 medicaments.

Dear Mr. Ebert:

This is in response to your letter of April 30, 1993, on behalf of La Preferida Inc., requesting the proper classification of cod liver oil and vitamin syrup under the Harmonized Tariff Schedule of the United States (HTSUS). You submitted samples with your request for a binding ruling.

FACTS:

The products at issue, imported from Great Britain, are cherry flavored cod liver oil and multivitamin syrup. The label on the cod liver oil indicates that a 10 milliliter portion of the product contains 7000 I.U. of vitamin A, 800 I.U. of vitamin D, 1 I.U. of vitamin E, and .01 milliliter of cherry flavor. It is our understanding that the multivitamin syrup includes sucrose, glucose, water, dextrose, gum acacia, cod liver oil, orange juice, citric acid, ascorbic acid, flavor, and vitamins. The cod liver oil has a yellow color and a somewhat fishy smell and taste. The cod liver oil and multivitamin syrup are packaged for retail sale in 170 and 300 milliliter glass bottles, respectively.

ISSUE:

Whether the cod liver oil and multivitamin syrup are classifiable in heading 1504 as fats and oil of fish or marine mammals, 2106 as food preparations, 2936 as vitamins or vitamin derivatives, or 3004 as medicaments.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI's.

Two HTSUS headings worthy of consideration in this case are 2936 which provides for vitamins and 3004 which provides for medicaments. In Headquarters Ruling Letter (HRL) 952278, issued January 26, 1993, Customs considered the same issue and classified iron and herbs in tablet and liquid form in headings other than 2936 and 3004. In that ruling Customs cited the EN's to 3004 which indicate that the heading excludes:

...food supplements containing vitamins or mineral salts which are put up for the purpose of maintaining health or well-being but have no indication as to use for the prevention or treatment of any disease or ailment. These products which are usually in liquid form but may also be put up in powder or tablet form, are generally classified in heading 21.06 or Chapter 22.

As was the case in HRL 952278, because the instant products are dietary supplements intended for general health and well-being and have no indication as to use for the prevention of any specific disease or ailment, the products are not classifiable in 3004.

Likewise, the instant products are not classifiable in 2936. EN (d) to 2936 states, in pertinent part, that the heading includes:

...products diluted in any solvent...provided that the quantity added or the processing in no case exceeds that necessary for their preservation or transport and that the addition or processing does not alter the character of the basic product and render it particularly suitable for specific use rather than for general use.

The significant quantity of cod liver oil and other non-vitamin ingredients included in the products, indicates that they are not simply vitamins or admixtures of such vitamins.

Heading 1504 provides for fats and oils, of fish or marine mammals. The EN's to 1504 indicate that the heading includes:

...fats and oils and their fractions, derived from several varieties of fish [such as]...cod....[which] are extracted from the body or liver of the fish or marine mammal or from waste thereof. They usually have a characteristic fishy smell and a disagreeable taste, and vary in colour from yellow to reddish- brown.

...[Cod liver] oils remain in this heading whether or not their vitamin content has been increased by irradiation or otherwise, but they fall in Chapter 30 when put up as medicaments, or emulsified or containing other substances added with a view to therapeutic use.

Although flavored, the cod liver oil still is appropriately described by the terms of heading 1504 and the applicable EN's. In this case, the presence of 0.01 milliliters of cherry flavor in a 10 milliliter portion is not sufficient to preclude classification within 1504. The taste, smell, and use of the product indicate that it maintains the characteristics of cod liver oil, as referred to in the EN's, and consequently is classifiable as an oil. The appropriate subheading is 1504.10.20.

In contrast, the multivitamin syrup does not appear to have retained its identity as cod liver oil. Its appearance, smell, and inclusion of other ingredients (i.e., sucrose, glucose, water, and orange juice) do not indicate that the product is identifiable as cod liver oil. Consequently, it is classified within 2106 as a food preparation not elsewhere specified or included. In this regard, EN (16) to 2106 states that the heading includes:

[p]reparations, often referred to as food supplements, based [on] extracts from plants, fruit concentrates, honey, fructose, etc. and containing added vitamins.... These preparations are often put up in packagings with indications that they maintain general health or well-being....

The appropriate subheading for the multivitamin syrup is 2106.90.65.

HOLDING:

The cod liver oil is classifiable in subheading 1504.10.20, HTSUS, as "Fats and oils and their fractions, of fish or marine mammals, whether or not refined, but not chemically modified: Fish- liver oils and their fractions: Cod." The applicable rate of duty is free.

The multivitamin syrup is classifiable in subheading 2106.90.6597, HTSUS, as "Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other, Other: Other: Other: Containing sugar derived from sugar cane and/or sugar beets." The applicable rate of duty is 10 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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