HQ 956890 - Modification of New York Ruling Letters (NYRL) 848070 and 848458, Concerning Food Supplements Alternately Known as PCM-4, Polymega and Polyerga II - United States International Trade Commision Rulings

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HQ 956890

December 12, 1994

CLA-2 CO:R:C:F 956890 ALS

CATEGORY: CLASSIFICATION

TARIFF NO. 2106.90.6999

Mr. John M. Mayhall, Jr.
President
Omega Pharmaceutical, Inc.
1000 Urban Center Parkway
Birmingham, AL 35243

RE: Modification of New York Ruling Letters (NYRL) 848070 and 848458, Concerning Food Supplements Alternately Known as PCM-4, Polymega and Polyerga II

Dear Mr. Mayhall:

In NYRL 848070, issued December 21, 1989, you were advised that a food supplement known as Polyerga II was classified in subheading 3823.90.5050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). In NYRL 848458, issued January 22, 1990, you were advised that a food supplement known as Polymega was classified in subheading 3823.90.5050, HTSUSA. We have reviewed those rulings and NYRL 864642, issued July 12, 1991, in which you were advised that a food supplement known as PCM-4 was classified in 2106.90.6097 or 2106.90.6099, HTSUSA, depending on whether it was in tablet or capsule form. (The current HTSUSA subheading number is 2106.90.6999, HTSUSA). We have concluded that the correct classification for all of these food supplements is as follows.

FACTS:

These food supplements are in tablet and capsule form. The primary ingredient in the tablets are polypeptides derived from bovine spleen extract. Other ingredients include sucrose, talc, and corn starch. The main ingredients in the capsules are lactose, gelatin, vegetable oils and polypeptides derived from - 2 -
bovine spleen extract. The products are put up in retail packages containing 15 capsules or 90 tablets. The information and documents submitted for these products indicate that the composition and use of the food supplements is virtually identical. The "flow chart" describing the manufacturing process is essentially the same for all the products and the ingredient listings are interchangeable.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, (Pub. L. 103-182, 107 Stat. 2057, 2186 (1993)), (hereinafter section 625), notice of the proposed modification of NYRL 848070 and NYRL 848458 was published on October 19, 1994, in the Customs Bulletin, Volume 28, Number 42.

ISSUE:

Are the products classifiable as food supplements in subheading 2106.90.6999, HTSUSA, or in subheading 3823.90.5050, HTSUSA, 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 heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

In considering the appropriate classification of the food supplement tablets and capsules we note that the ingredients of all the tablets and all the capsules are essentially the same regardless of the name applied to the product. The active ingredients of each tablet, regardless of name, are the same. Similarly, the active ingredients of each capsule, regardless of name, are the same. The quantity of each ingredient is essentially the same in each tablet and, likewise, the quantity of each ingredient is essentially the same in each capsule.

All the products are finished and ready to consume. They are sold in health food stores as food or nutritional supplements. No claims regarding their therapeutic or prophylactic properties are made by the importer.

The product, sold as a food supplement under the PCM-4 label, has for certain purposes been designated OP-1 by the importer.

Since the product has the ingredients of a food supplement, is marketed as a food supplement, and there are no claims of therapeutic or prophylactic properties, we have concluded that these products should be considered food supplements. We consulted the Explanatory Notes to the Harmonized System (EN) which represents the opinion of the international classification experts. EN 21.06(B)(16) provides that "Preparations, often referred to as food supplements,..." are included in this heading.

HOLDING:

Food supplements in tablet and capsule form and known as Polyerga II, Polymega and PCM-4 are classifiable in subheading 2106.90.6999, HTSUSA, and are subject to a general rate of duty of 10 percent ad valorem.

NYRL 848458 and NYRL 848070 are hereby modified.

In accordance with section 625, this ruling will become effective 60 days from its publication in the CUSTOMS BULLETIN. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR

Sincerely

John Durant, Director
Commercial Rulings Division

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