United States International Trade Commision Rulings And Harmonized Tariff Schedule
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HQ 958922




March 14, 1996

CLA-2 RR:TC:FC 958922 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 2105.00.3000, 2105.00.4000

Mr. Daniel D. Anderson
Operations Consultant
International Dairy Queen, Inc.
7505 Metro Blvd.
Minneapolis, MN 55439

RE: Frozen Reduced Fat Ice Cream

Dear Mr. Anderson:

This is reference to your request for a binding classification ruling regarding the subject product.

FACTS:

The instant product, referred to as reduced fat ice cream, contains milk fat, nonfat milk solids, sugar, corn syrup, mono and diglycerides, guar gum, carrageenan, natural and artificial flavor, and artificial colors. It contains 5 percent milk fat, 12.50 percent nonfat milk solids, 15 percent sweetener solids, and .50 percent stabilizer solids. The product is stated to meet the U.S. Food and Drug Administration (FDA) regulations promulgated to meet the Nutrition Labeling and Education Act of 1990 (NLEA) and is classified by the general standard "reduced fat ice cream." It is also stated that the product meets the FDA requirements contained in the regulations of that agency in title 21, Code of Federal Regulations, sections 101.62 and 135.110 (21 CFR 101.62. 135.110).

ISSUE:

What is the classification of this product under the Harmonized Tariff Schedule of the United States (HTSUSA)?

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 determination 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 this matter we noted that there are a variety of different dairy products on the market with varying degrees of milk. Some of these products are considered ice cream while others are not. These products are frozen and are ready for consumption. We have previously noted that the term "ice cream" does not include all frozen dessert products containing dairy ingredients, nor does it include all products containing ice cream. The range of milk solids in these products range from substantial to minimal.

The Explanatory Notes to the Harmonized System (EN), which represents the view of the international classification experts, notes that heading 21.05 covers ice cream which is usually prepared with a basis of milk or cream, and other edible ice, but that it excludes mixes and constituents. The EN, however, do not contain a specific description of the term "ice cream."

We, therefore, consulted Part 135 of the FDA Regulations. These regulations, although not binding for the purposes of tariff classification under the HTSUSA, were consulted for guidance purpose. We specifically noted section 135.110(a)(2) of those regulations provides that "Ice cream contains not less than 10 percent milkfat, nor less than 10 percent nonfat milk solids,..." The instant product, which contains only 5 percent milkfat, does not meet that definition.

We next consulted section 101.62 of the FDA Regulations and noted that food which contains "at least 25 percent less fat per reference amount customarily consumed than an appropriate reference food..." may have the terms "reduced fat," "reduced in fat," etc. on the label. According to section 101.13(j)(1) "{T}hese statements shall be known as "relative claims..."

Based on our analysis of these regulations, we concluded that they permitted a dairy product which did not have the minimum 10 percent milkfat, to be labeled and marketed as - 3 -

"reduced fat ice cream." The regulations in Part 101 of the FDA Regulations do not alter the definition of ice cream contained in Part 135 of the FDA Regulations. The former regulations deal only with labeling claims and permit a dairy product to be labeled as previously noted. They do not permit a dairy product which does not meet the minimum specification in section 135.110, FDA Regulations, to be called "ice cream." Further, in consulting Grolier's Multimedia Encyclopedia (1994), we noted that such source confirms that the FDA "...requires that ice cream contain at least 10% milk fat by weight."

We next consulted section 135.120, FDA Regulations, which describes "ice milk." That section provides that this dairy product must comply with all the provisions of section 135.110, FDA Regulations, except, as herein pertinent, that its content of milkfat was less that 7 percent but more than 2 percent. This is confirmed by the aforementioned encyclopedia. We were unable to establish that a dairy product which contained less than the minimum standard for milkfat is considered "ice cream" although it may be marketed as "reduced fat ice cream."

In considering this matter we noted that the milkfat content of ice creams may differ, with economy ice cream containing a lower percentage of milkfats and a higher quality ice cream containing a higher percentage of milkfats. However, we concluded that the dairy product known as "ice cream", without any qualifying terms, must contain a recognized minimum milkfat percentage and that the instant product, which contains 50 percent less than such amount, does not meet that requirement. The fact that the product is labeled "reduced fat ice cream", indicating a minimum milkfat reduction of 25 percent, confirms that it contains less than the required minimum.

HOLDING:

A dairy product containing 5 percent milkfat is not ice cream for tariff purposes and is, therefore, classifiable under subheading 2105.00.3000, HTSUSA. That subheading covers "Ice cream and other edible ice, whether or not containing cocoa: Other: Dairy products described in additional U.S. note 10 to chapter 4 (HTSUSA) and entered pursuant to its provisions." (emphasis added). Merchandise so classified is subject to a general rate of duty of 20 percent ad valorem and is further subject to certain quantitative limitations. Such merchandise not qualifying for admission under the referenced subheading would be classified under the immediately subsequent "Other" - 4 -
provision, subheading 2105.00.4000, HTSUSA. Such merchandise is subject to a general rate of duty of 56.1› per kilogram plus 19 percent ad valorem and is further subject to certain additional duties, as specified in chapter 99, HTSUSA.

Sincerely,

John Durant, Director
Tariff Classification

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