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HQ 956858




January 23, 1995

CLA-2 CO:R:C:F 956858 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2202.90.9090

D. Brooks Pavilack, Esq.
Miller & Company P.C.
2320 Commerce Tower
911 Main Street
Kansas City, Missouri 64105

RE: Classification of Boost Beverage Product

Dear Mr. Pavilack:

This is in response to your letter dated August 5, 1994, requesting the proper classification of Boost Beverage Product ("Boost"), under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted samples of the strawberry variety with your request for a binding ruling.

FACTS:

Boost is a moderate-calorie, high-protein, ready- to-drink beverage consumed by active people and those desiring a good source of energy and nutrients. It is a non-alcoholic water-based beverage containing sugar, corn syrup solids, milk protein concentrate, vegetable oils, vitamins, minerals, flavorings, emulsifiers and other ingredients. Boost contains the three essential macronutrients (protein, fat, and carbohydrate) and all the essential vitamins and minerals for it to be considered "nutritionally complete." Each eight ounce can provides at least 20 percent of the U.S. RDAs for protein and all vitamins and minerals. Boost will be imported from Canada and sold primarily in four-packs. Boost will be supplied in the following four flavors: chocolate, mocha (coffee), vanilla, and strawberry.

ISSUE:

Whether Boost is classifiable as a beverage or a nutritional food supplement.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) 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 (ENs) 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 GRIs.

Upon review of the various HTSUSA chapters, it appears that the product is potentially classified in either chapter 22, 21 or 19. Chapter 22 provides for beverages, spirits and vinegar. The Explanatory Notes explain that the products of Chapter 22 constitute a group quite distinct from the foodstuffs covered by the other HTSUSA chapters. Chapter 22 includes products falling into four main groups: water and other nonalcoholic beverages; fermented alcoholic beverages; distilled alcoholic liquids and beverages; and vinegar.

For tariff purposes, a beverage is a product which is drinkable in its condition as imported. Strohmeyer & Arpe Co. v. United States, 28 CCPA 34, C.A.D. 121. However, this does not indicate that all potable liquids are necessarily considered beverages under the HTSUSA. The delineation of the main groups of products which constitute a beverage in Chapter 22 corroborates this point.

If we classify the product as a beverage in Chapter 22 , heading 2202 would appear to be the appropriate provision. It provides for waters, including mineral and aerated waters, with sugar, sweetening matter or flavored and other nonalcoholic beverages, not including fruit or vegetable juices. Pursuant to GRI 1, we classify the product according to the terms of the heading. The product is not merely a water as described in 2202, since it contains milk protein concentrate and a substantial number of vitamins. Thus, it must either fit the description of an "other nonalcoholic beverage" of subheading 2202.90, or be classified elsewhere. The Explanatory Notes to 2202 explain that the heading covers non-alcoholic beverages such as: lemonade, orangeade and cola; tamarind nectar; and certain other beverages ready for consumption, such as those with a basis of milk and cocoa.

Boost is an "other non-alcoholic beverage." The Explanatory Notes specify types of "non-alcoholic beverages" included in 2202, inter alia, "certain" other beverages ready for consumption.

In HRL 950299 (December 30, 1991), Customs classified an infant formula in heading 1901. In that case, Customs noted that the formula was ingested in prescribed daily dosages intended to supply an infant with a vital food and nutrient source. Boost, instead, is a beverage, a liquid for drinking. Although it is stated to contain 25 percent vitamins and minerals, Boost is not intended to be a regular diet or ingested in lieu of meals. It is merely a beverage to satisfy the empty feeling of an active adult who may miss a meal because of that person's busy lifestyle.

HOLDING:

We find that Boost is classified as an other nonalcoholic beverage under subheading 2202.90.9090, HTSUSA. The general column one rate of duty is 0.3 cents per liter.

Sincerely,

John Durant, Director
Commercial Rulings

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