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HQ 955963




January 13, 1995

CLA-2 CO:R:C:F 955963 ALS

CATEGORY: CLASSIFICATION

TARIFF NO. 2106.90.9999

District Director of Customs
150 N. Royal Street
Room 3004
Mobile, AL 36602

RE: Request for Further Review of Protest 1901-94-100012, dated February 10, 1994, Concerning a Food Supplement in Capsules and Tablet Form Alternately Known as PCM-4 and Polymega

Dear Mr. Willette:

This ruling is on a protest that was filed against the decision issued by your office on December 7, 1993, in the liquidation of two entries covering the referenced product.

FACTS:

The merchandise under consideration is a food supplement identified as PCM-4. This product is stated to be the same as the product Polymega which was referenced in the protest narrative and for which the importer received a ruling, New York Ruling Letter (NYRL) 848458, dated January 22, 1990, and for which it requests classification in accordance with that ruling which found that the product was classifiable in subheading 3823.90.5050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Neither a listing of ingredients nor product literature is provided with the instant protest. Ingredient information, however, was listed in the above ruling referenced by the protestant and in NYRL 864642, dated July 12, 1991, issued to the recipient. Such information is herein incorporated by reference. While the product is sold in health food stores as a food or nutritional supplement, the importer makes no claim regarding their therapeutic or prophylactic properties.

ISSUE:

Is the product under consideration classifiable as a food supplement or as a chemical mixture?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering the appropriate classification of the subject product we noted that the importer received several prior rulings on the same or similar products. NYRL 848070 dated December 21, 1989, classified a product called Polyerga II, a food or nutritional supplement composed of many amino acids plus additional protein matter, in subheading 3823.90.5050, HTSUSA. NYRL 848458, dated January 22, 1990, classified a product called Polymega in subheading 3823.90.5050, HTSUSA. This ruling was the basis for the importer's claimed classification in the protest. NYRL 864642, dated July 12, 1991, classified a product labelled PCM-4 in subheading 2106.90.6097 or 2106.90.6097, HTSUSA, depending on whether it was in tablet or capsule form.

In comparing the ingredients and other information in the documents contained in the above-referenced rulings for the Polymega, PCM-4 and Polyerga II we noted that their composition and use were essentially identical. They are described as nutritional supplements containing bovine spleen extract (listed as porcine spleen extract in documents filed with the Department of Agriculture). The "flow chart" describing the manufacturing process is the same for all the products, and the ingredients listings are interchangeable. One can only conclude that Polymega, PCM-4 and Polyerga II are, if not the same product, sufficiently similar to compel the same tariff classification for both.

Headquarters Rulings Letter (HRL) 956890, dated December 12, 1994, considered the classification of these food supplements and the relative rulings, as noted above, in the further review of the subject protest. That HRL held that food supplements in - 3 -
tablet and capsule form and known as Polyerga II, Polymega and PCM-4 are classifiable in subheading 2106.90.6999, HTSUSA. (The current HTSUSA subheading number is 2106.90.9999, HTSUSA).

HOLDING:

Food supplements in tablet and capsule form and known as Polyerga II, Polymega and PCM-4 are classifiable in subheading 2106.90.9999, HTSUSA, and are subject to a general rate of duty of 9.4 percent ad valorem.

Since the classification indicated above is the same as the classification under which the entries were liquidated (recognizing a change in the tariff subheading number), you are instructed to deny the protest in full.

A copy of this ruling should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be provided by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry is accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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