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HQ 964873




July 19, 2002

CLA-2 RR:CR:GC 964873 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.99

Ms. Ellen A. DiLapi
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP 245 Park Avenue
33rd Floor
New York, NY 10167-3397

RE: ENADAlert; Other Food Preparations Not Elsewhere Specified or Included; Other Vitamins and Their Derivatives

Dear Ms. DiLapi:

This is in response to your letter dated January 23, 2001, to the Area Director of Customs in New York, on behalf of Menuco, Inc., concerning the tariff classification of ENADAlert tablets under the Harmonized Tariff Schedule of the United States (HTSUS). As you are aware, this matter was referred to Customs Headquarters for response. In preparing this ruling, we also considered the information provided with your letters of January 30, 2001 and March 28, 2002.

FACTS:

The merchandise, labeled as ENADAlert, will be imported in measured-dose form (10 mg tablets) and then put up in their retail sale packages subsequent to importation. Each ENADAlert tablet consists of a formulated mixture (i.e., preparation) composed of (by weight) 10% NADH (“Nicotinamide adenine dinucleotide hydride”) and 90% “inert” ingredients [D-Mannitol, Sodium Bicarbonate, Microcrystalline Cellulose, Natural Flavoring, Magnesium Stearate]. The NADH is the only active ingredient. You state that NADH is the coenzyme form of Niacinamide. The product is marketed as a stimulant-free energy boosting dietary supplement to relieve drowsiness and restore alertness and energy and boosts stamina and endurance in healthy active people without
the use of stimulants. All of these claims are qualified by the disclaimer required by the Dietary Supplement Health and Education Act (“DSHEA”) of 1994 (Pub.L. 103-417) which states on the advertisement that: “These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease.”

ISSUE:

Whether the ENADAlert is classifiable as vitamins and other derivatives or as other food preparations not elsewhere specified or included under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

You claim that the subject merchandise is classifiable in heading 2936, HTSUS, as vitamins and other derivatives. Specifically, you stated that: “NADH is a substance associated with the normal function, maintenance and efficiency of the human body. Particularly it functions as fuel for cellular energy production and plays a key role in DNA and cell damage repair. NADH is a coenzyme form of a vitamin (Niacinamide) and is used by the body as such.” In support of this position, you cite to NY D88971, dated April 4, 1999, in which Customs classified a coenzyme that constitutes the metabolically active form of Vitamin B12 in heading 2936. Based on this ruling, you believe that because NADH functions as a coenzyme it should be classified under heading 2936.

However, to be classified within heading 2936, the subject merchandise must not be excluded by any legal note. Legal Note 1(a) to Chapter 29 provides that the headings to this chapter apply only to: “separate chemically defined organic compounds, whether or not containing impurities”. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the HTSUS. While not legally binding nor dispositive, the ENs 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 FR 35127, 35128 (August 23, 1989). The General EN (A) to Chapter 29, page 1346, states in pertinent part that: “[s]eparate chemically defined compounds containing other substances deliberately added during or after their manufacture (including purification) are excluded from this Chapter.”

According to the information provided, each ENADAlert tablet consists of a formulated mixture, containing by weight 10% NADH and the remaining 90% are “inert” ingredients. While NADH may be considered a coenzyme, the ENADAlert tablet as a whole does not meet the terms of Legal Note 1(a) to Chapter 29, because it has other substances deliberately added during its manufacture. Therefore, classification under heading 2936 is precluded.

As stated earlier, the ENADAlert is marketed and sold as a dietary supplement. After importation, it is put up in packaging and marketed as a stimulant-free energy boosting dietary supplement to relieve drowsiness and restore alertness and energy and boosts stamina and endurance in healthy active people without the use of stimulants. The merchandise can be used daily without a strict dosage schedule or time limit recommended. Heading 2106 provides for food preparations not elsewhere specified or included. As no other heading describes the ENADAlert, we find it is classified in Heading 2106.

HOLDING:

For the foregoing reasons, the ENADAlert is classifiable under subheading 2106.90.99, which provides for: “[f]ood preparations not elsewhere specified or included: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther. . . .” Goods classifiable under this provision have a general, column one rate of duty of 6.4 percent ad valorem.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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