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HQ 962940




May 10, 2000

CLA-2 RR:CR:GC 962940ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9998

Ms. Laura Denny
Customs Compliance Manager
CBT International, Inc.
110 West Ocean Boulevard
Suite 728
Long Beach, CA 90802

RE: Micro-encapsulated St. John’s Wort Granules; HQ 960607, 963679, 963167.

Dear Ms. Denny:

On May 11, 1999, on behalf of your client, Zuellig Botanicals International, Inc., you requested a binding ruling under the Harmonized Tariff Schedule of the United States (HTSUS), from the Director, Customs National Commodity Specialist Division, in New York, for a product identified as micro-encapsulated St. John’s Wort vegetable extract. Your request was forwarded to this office for reply. We regret the delay.

FACTS:

The article being classified is described as being a granular vegetable extract of St. John’s Wort which has been micro-encapsulated. You state the micro-encapsulation process coats the individual granules with a protective coating which slows the release of the product when ingested. The granules are composed of 50% extract and 50% carriers (one or more of the following: maltodextrin, ethyl cellulose, hydroxy propyl cellulose, di calcium phosphate, microcrystalline cellulose and lactose).

ISSUE:

What is the classification St. John’s Wort herbal microspheres?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

The HTSUS headings under consideration are as follows:

1302 Vegetable saps and extracts; pectic substances, pectinates and pectates; agar-agar and other mucilages and thickeners, whether or not modified, derived from vegetable products: Vegetable saps and extracts:

Other:

1302.19.40 Other
Other.

2106 Food preparations not elsewhere specified or included:

2106.90 Other:

Other:
Other:
Other:
Other:
Other:

Other.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

As noted above, heading 1302 covers vegetable saps and extracts. EN 13.02 states:

Extracts may be simple or compound. Simple extracts are obtained by the treatment of only one variety of plant. Compound extracts are obtained either by mixing simple extracts or by treating mixtures of different varieties of plants. Compound extracts (whether in the form of alcoholic tinctures or in any other forms) therefore contain the constituents of several kinds of plant; they include compound jalap extract, compound extract of aloes, compound extract of cinchona, etc.

We must determine whether classification of the microspheres in heading 1302, HTSUS, is correct.

When describing the type of extract covered by the heading, EN 13.02 states:

The vegetable saps and extracts of this heading are generally raw materials for various manufactured products. They are excluded from the heading when, because of the addition of other substances, they have the character of food preparations, medicaments, etc.

The microspheres being classified cannot be considered to be raw materials for various other manufactured substances. Rather, the extracts have been engineered into finished products intended to be put up for retail sale – after encapsulation – for use as dietary supplements. You have provided literature which states that the “micro-encapsulation process coats the individual granules with a protective coating which slows the release of the product when ingested.” These activities have so modified the original extract that it can no longer be considered a raw material. It is a finished product, ready for encapsulation. Customs has consistently held that extensive processing of an extract based article which transforms it from a raw material into an article ready for use as or in some more specialized product will render it ineligible for classification in heading 1302. (See HQ 960607, dated July 31, 1998, citing HQ 953679, dated February 3, 1994)

For the above reasons, the St. John’s Wort herbal microspheres are not classified in heading 1302 HTSUS. Literature provided by the importer indicates that the microspheres are intended to be encapsulated and offered for retail sale by Zuellig Botanicals as a natural herb health supplement. Customs has consistently classified encapsulated herbal health supplements in subheading 2106.90.9998, HTSUS, as food preparations, not elsewhere specified or included, other. See HQ 963679 and 960607, cited above. This ruling is consistent with HQ 963167, dated May 9, 2000.

HOLDING:

St. John’s Wort herbal microspheres are classified in subheading 2106.90.9998, HTSUS, as food preparations not elsewhere specified or included, other, other, other, other, other, other, other.

Sincerely,


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