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HQ 957140




July 11, 1995

CLA-2 R:C:F 957140 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 2309.90.9500

Ms. Ann Williams
A.N. Deringer, Inc.
173 W. Service Road
Champlain, New York 12919

RE: Request for Reconsideration of Headquarters Ruling Letter (HRL) 953755

Dear Ms. Williams:

This is in response to your letter dated October 4, 1994, requesting reconsideration of HRL 953755.

FACTS:

The subject of HRL 953755 (September 3, 1993) concerned an herbal supplement for cats and dogs called Hoka Mix 30. The herbal supplement consisted of natural vitamins A, K, B1, B6, C, B2, B12, E, folic acid, B3, H(Biotin) B5(pantothenic acid), natural minerals and trace elements: calcium, phosphor, sodium, magnesium, zinc, manganese, chromium, potassium, selenium, iodine, iron, copper and natural herbs; alfalfa, almond powder, capsicum and woundwort (solidago). The supplement was to be sprinkled directly on the animal's daily food. The product came in 4 sizes: 180 grams, 450 grams, 900 grams and the kennel package of 5 kilograms.

Your letter refers to a Canadian ruling classifying the product in subheading 2309.10.0000, HTSUSA, as dog or cat food. Canadian Customs believes that 2309.10.0000, HTSUSA, is appropriate for complete or incomplete foods.

ISSUE:

Whether the herbal supplement was properly classified in 2309.90.9500 HTSUSA, (formerly, 2309.90.9000) or is classified in 2309.10.0000.

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation 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 HRL 953755, Customs ruled the supplement, Hoka Mix 30, fell into the tariff provision for preparations of a kind used in animal feeding. We noted its use as a homeopathic or alternative medicine to prevent and treat various disorders affecting dogs and cats. More specifically, as a biological phyto-therapeutical food additive, the product acted as a catalyst, without chemical additives, to restore stomach and intestinal flora, improve the absorption of nutrients, and enhance metabolism. It was stated to be used as a supplement to pet food, never as a lone source of nutrition. Dogs and cats ingested the product sprinkled directly on their food. Affidavits attested to the product's efficacy.

You believe the proper classification is 2309.10.0000 HTSUSA, dog or cat food. You state that Canadian officials agree, finding the product akin to a rawhide chews. We disagree. While a rawhide chew may be partially or even fully digestible, it is an independent pet snack. We concede it provides a small amount of protein and aids in dental hygiene of the pet. However, we note animals chew hides also for sheer amusement. Rawhide chews are not intended for immediate total ingestion, nor sprinkled on pet food as meal supplement. They are also not used primarily for their inherent healthful properties. In contrast, the Hoka Mix 30 is used only as a nutritional food supplement. It is never served independently and it is consumed integrated with the pet's regular standard fare. The pet chews the food or the hide, never the two at once.

In sum, we affirm our ruling as set forth in HRL 953755 (September 3, 1993). However, subheading 2309.90.9000 HTSUSA, has been renumbered to subheading 2309.90.9500 HTSUS.

HOLDING:

The herbal food supplement, Hoka Mix 30, falls into subheading 2309.90.9500, HTSUSA. The general rate of duty is currently 2.7 percent ad valorem.

Sincerely,

John Durant, Director

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