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HQ 959096




November 29, 1996

CLA-2 RR:TC:FC 959096K

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.99

Mr. Samuel Feliciano
SGS Government Programs Inc.
8120 N.W. 53rd St. Suite 200
Miami, Florida 33166

RE: Tariff Classification of Aloe Vera Gel & Aloe Berry Nectar; Modification of New York
Ruling Letter (NYRL) A80740

Dear Sir:

In your letter of March 28, 1996, you requested that we reconsider NYRL A80740 dated March 18, 1996, which held that products known as Aloe Vera Gel and Aloe Berry Nectar were classified as waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, in subheading 2202.90.90, Harmonized Tariff Schedule of the United States (HTSUS), with duty at the general rate of 0.3 cents per liter. This letter is to inform you that based on the additional information submitted, NYRL A80740 no longer reflects the views of the Customs Service and is modified in accordance with section 177.9(d) of the Customs Regulations (19 CFR 177.9(d)). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), 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 A80740 was published on October 30,1996, in the Customs Bulletin, in Volume 30, No. 44. The following represents our position.

FACTS:

Aloe Vera Gel is stated to contain raw aloe vera, sorbitol, ascorbic acid, citric acid, potassium sorbate, sodium benzoate, papain, xanthan gum and tocopherol.

Aloe Berry Nectar contains raw aloe vera gel, fructose, sorbitol natural cranberry and apple juice concentrate, ascorbic acid, citric acid, potassium sorbate, sodium benzoate, papain, xanthan gum tocopherol and artificial color.

The products contain no water other than that which is extracted from the aloe vera plant leaves during the manufacturing process. The products are drinkable and can be consumed directly or mixed with other items. The products are packaged in one liter containers, and the recommended daily ingestion regimen is four fluid ounces.

ISSUE:

The issue is whether the products are food supplements classified as other food preparations not elsewhere specified or included, in subheading 2106.90.99, HTSUS.

LAW AND ANALYSIS:

Heading 2202 provides for waters, including natural or artificial waters, and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009. In NYRL A80740, the products were classified as other nonalcoholic beverages, in subheading 2202.90.90, HTSUS, because based on the information, it was believed that the products, not put up in dosage form, were taken for nutritional beverage purposes and not as food supplements.

The products marketed, sold and distributed as nutritional supplements and used specifically for nutritional purposes as part of a dietary regimen are food supplements rather than beverages, and are classified in subheading 2106.90.99, HTSUS.

HOLDING:

The products described above as Aloe Vera Gel and Aloe Berry Nectar, are classified as other food preparations not elsewhere specified or included, in subheading 2106.90.99, HTSUS (1996), with duty at the general rate of 8.8 percent ad valorem.

NYRL A80740, dated March 18, 1996, is modified.

In accordance with 19 U.S.C. 1625, this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), of the Customs Regulations (19 CFR

Sincerely,

John Durant, Director

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