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HQ 964631




March 27, 2001

CLA-2 RR:CR:GC 964631ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 3307.30.10

Mr. David B. Brown
Potter, Anderson & Corroon
Delaware Trust Building
P.O. Box 951
Wilmington, DE 19899

RE: ActiBath Carbonated Bath Tablets, HQ 950893 revoked.

Dear Mr. Brown:

On March 11, 1992, Customs issued HQ 950893 to you on behalf of your client, The Andrew Jergens Company, which classified an article known as ActiBath Carbonated Bath Tablets [ActiBath], in subheading 3307.30.50, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other bath preparations. We have reviewed that ruling and have determined that the classification of ActiBath therein is incorrect. Customs now believes the correct classification of ActiBath is in subheading 3307.30.10, HTSUS, pursuant to the analysis set forth below.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of HQ 950893 was published on January 3, 2001, in the Customs Bulletin, Vol. 35, No. 1. As explained in a notice published on February 21, 2001, in Vol. 35, No. 8 of the Customs Bulletin, the period within which to submit comments on this proposal was extended to March 23, 2001. No comments were received in response to the notices.

FACTS:

According to HQ 950893, the product, ActiBath Carbonated Bath Tablets, comes in four versions: Spring Floral, Blue Forest, Moisture Treatment and Light & Fresh. It is marketed as the world's first carbonated bath tablet which provides therapy for the body and mind. The tablets are composed of either succinic or fumaric acid, sodium bicarbonate, sodium carbonate, Peg-150, fragrance, calcium silicate, cellulose gum, magnesium oxide, sucrose stearate and FD&C Blue 1. The moisture treatment Actibath is composed of succinic acid, dextrin, sodium bicarbonate, sodium carbonate, cetyl octanoate, titanium dioxide, isostearate, isostearic/myristic glycerides, polyquaternium-10, FD&C Blue No. 1, tocopherol. When exposed to water, the acid reacts with the sodium bicarbonate and sodium carbonate forming carbon dioxide gas.

ISSUE:

What is the classification of ActiBath Carbonated Bath Tablets?

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.

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).

The HTSUS headings under consideration are as follows:

3307 Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties:

3307.30 Perfumed bath salts and other bath preparations:

3307.30.10 Bath salts, whether or not perfumed

3307.30.50 Other.

In HQ 950893, Customs classified ActiBath in subheading 3307.30.50, HTSUS, as other bath preparations rather than in subheading 3307.30.10, HTSUS, because of "its unique ability to release carbon dioxide when placed in water, resulting from the chemical reaction between succinic (or fumaric) acid and the sodium bicarbonate and sodium carbonate." Customs has reviewed this ruling and believes that the criteria used to distinguish between the two competing headings is incorrect.

Neither the HTSUS nor the ENs contain a definition of the term "bath salts." In absence of a definition of a term, the correct meaning is its common or commercial meaning. Unfortunately, according to the Cosmetic, Toiletry and Fragrance Association, there is neither an industry standard nor an industry definition of what is meant by the term "bath salts." The Random House Dictionary of the English Language defines "bath salts" as "a preparation used to soften or give a pleasant scent to a bath, as colored, sweet-smelling flakes, crystals, etc."

Hawley's Condensed Chemical Dictionary defines a salt as a compound formed when the hydrogen of an acid is replaced by a metal or its equivalent. The Kirk-Othmer Encyclopedia of Chemical Technology, Third Edition, 1979, contains the following entry under "Bath Salts" "Two types of bath salts are available. The first is formulated with crystalline salts such as rock salt and epsom salt to which color and perfume are added. These are not water softeners. The second type is the water softening type based on sesquicarbonates, phosphates, and borates. Color and perfume are added and in some products, small percentages of fatty acid ester are included for nondrying effects." Volume 7, at page 167.

Chemically, sodium carbonate and sodium bicarbonate have dual functionality in this bath salt preparation; namely, to produce an attractive effervescence and to soften the water.

As a general rule, acids react with carbonates and bicarbonates to produce carbon dioxide gas. In the instant case, when succinic (or fumaric) acid and sodium bicarbonate and sodium carbonate are placed in water the compounds dissolve and ionize. The resultant chemical reaction between the acid and the carbonate ions produces carbon dioxide gas, which results in effervescence at the surface of the water. In addition, if the water is hard, i.e., contains high concentrations of calcium and magnesium ions, the carbonate ions will precipitate out calcium and magnesium carbonates, softening the water thereby.

The relevant commercial literature (advertising, promotional flyers, packaging and labeling) all make distinctions between products which are identified and described by their manufacturers are "bath salts" and those which can be called "other bath preparations". These latter products include, among other examples, bath lotions, bath oils and bath powders. Conveniently, the tariff subheadings also divide products into two groups. Since the industry has seen fit to identify some bath products as "salts" and other products as something else, and absent language or definitions to the contrary in the tariff, Customs will classify the products accordingly.

Since this bath preparation does contain chemical salts and does, indeed, function as a water softener, and, given the fact that the release of carbon dioxide gas is purely esthetic and has no therapeutic effect, the product is a bath salt and is classifiable in subheading 3307.30.10, HTSUS.

HOLDING:

ActiBath Carbonated Bath Tablets are classified in subheading 3307.30.10, HTSUS, which provides for Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties: Perfumed bath salts and other bath preparations: Bath salts, whether or not perfumed.

HQ 950893, dated March 11, 1992, is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director

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