HQ 0954615 - Classification of Ricola Sugar Free Throat Drops - United States International Trade Commision Rulings

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HQ 954615

December 10,1993

CLA-2 CO:R:C:F 954615 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.6599

Peter S. Reichertz, Esq.
Arent Fox Kintner Plotkin & Kahn
1050 Connecticut Aveue, NW
Washington, D.C. 20036-5339

RE: Classification of Ricola Sugar Free Throat Drops

Dear Mr. Reichertz:

Your letter of June 14, 1993, concerns the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a throat drop product produced by Ricola Ag of Switzerland: Ricola Sugar Free Throat Drops.

FACTS:

The product is said to be a lozenge designed to alleviate sore throat pain, and to consist principally of isomalt (over 95 percent) and menthol. Isomalt is described as a sugar alcohol substance, similar to sorbitol and mannitol, prepared by enzymatic rearrangement of sucrose.

ISSUE:

Classification of sugar-free throat drops in the HTSUS.

LAW AND ANALYSIS:

It is your opinion that, based on the Explanatory Notes (ENs) to Heading 1704, the product is classifiable as a medicament in Heading 3004, HTSUS, rather than a confectionery in Heading 1704, HTSUS. - 2 -

Recently, however, the Harmonized System Committee revised the Explanatory Notes to Headings 1704 and 3004 to which you refer. They now read as follows:

Heading 1704:

"(v) Preparations put up as throat pastilles or cough drops, consisting essentially of sugars (whether or not with other foodstuffs such as gelatin, starch or flour) and flavoring agents (including substances having medicinal properties, such as benzyl alcohol, menthol, eucalyptol and tolu balsam). However, throat pastilles or cough drops which contain substances having medicinal properties, other than flavouring agents, fall in Chapter 30, provided that the proportion of those substances in each pastille or drop is such that they are thereby given therapeutic or prophylactic uses."

Heading 3004:

"However, preparations put up as throat pastilles or cough drops, consisting essentially of sugars (whether or not with other foodstuffs such as gelatin, starch or flour) and flavouring agents (including substances having medicinal properties, such as benzyl alcohol, menthol, eucalyptol and tolu balsam) fall in Heading 1704. Throat pastilles or cough drops containing substances having medicinal properties, other than flavouring agents, remain classified in this heading when put up in measured doses or in forms or packings for retail sale, provided that the proportion of those substances in each pastille or drop is such that they are thereby given therapeutic or prophylactic uses."

Therefore, in view of the revised definitions in the ENs of cough drops or throat pastilles, a drop containing a sweetener and a flavouring agent, such as the one here, since it lacks a medicinal substance, in addition to a flavouring agent, would not be classifiable as a medicament in Heading 3004.

Since the lozenges contain over 95 percent of a sugar substitute, they are not classifiable as a sugar confectionery in heading 1704, since Chapter 17 covers sugars other than the chemically pure sugars (other than sucrose, lactose, glucose or fructose) or sugar substitutes.

Thus, drops or lozenges of this type, since they are not classifiable in Headings 1704 or 3004, are classifiable as other food preparations, not elsewhere specified or included, in subheading 2106.90.6599, HTSUS.

HOLDING:

Ricola Sugar Free Throat Drops, described above, are classifiable in subheading 2106.90.6599, HTSUS. The rate of duty is 10 percent ad valorem.

Sincerely,

John Durant, Director

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