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HQ 965397




March 5, 2002

CLA-2 RR:CR:GC 965397AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.99

Port Director
U.S. Customs Service
477 Michigan Ave., Ste. 200
Detroit, MI 48226

RE: Protest 3801-01-100300; Glucosamine HCL Cartilage Health Capsules

Dear Port Director:

This is our decision on Protest 3801-01-100300, filed by Ocean Essentials Inc., against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Glucosamine HCL Cartilage Health capsules in bottles.

FACTS:

Glucosamine HCL Cartilage Health capsules are imported in bottles of ninety capsules with the requisite labeling as a dietary supplement. According to the importer, the soft gelatin capsules contain D-glucosamine HCL, fish collagen, potassium sulfate and glutamine.

Protestant claims classification under subheading 2932.99.90, HTSUS, the provision for "[H]eterocyclic compounds with oxygen hetero-atom(s) only: [C]ompounds containing an unfused furan ring (whether or not hydrogenated) in the structure: [O]ther: [O]ther:."

The merchandise was entered in six entries dating from December 13, 1999 through April 14, 2000. The entries were all liquidated on March 2, 2001, under subheading 2106.90.99, HTSUS, the provision for “[F]ood preparations not elsewhere specified or included: [O]ther: [O]ther.” The protest was timely filed on May 4, 2001.

ISSUE:

What is the classification of Glucosamine HCL Cartilage Health capsules?

LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context, which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.

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

The HTSUS headings under consideration are as follows:

Food preparations not elsewhere specified or included:

Heterocyclic compounds with oxygen hetero-atom(s) only: Compounds containing an unfused furan ring (whether or not hydrogenated) in the structure:

The headings of chapter 29 apply only to separate chemically defined organic compounds (Chapter 29, Note 1(a)). On the other hand, food supplements, of heading 2106, HTSUS, encompass a much more expansive group of items. They simply must be prepared for human consumption. (See EN 21.06(A), p. 170; HQs 962923, dated October 26, 2000, and 962921, dated December 11, 2000). As such, they are packaged for oral ingestion only as a capsule, tablet, powder or liquid. They are put up in packaging with indications that they maintain general health or well-being. The merchandise is often used daily without a strict dosage schedule or time limit recommended.

While the imported merchandise contains D-glucosamine HCL, a separately chemically defined organic compound, in this product it has been prepared with other substances (i.e. fish collagen, potassium sulfate and glutamine), placed inside a gelatin capsule and bottled. Such a preparation is no longer defined as a single chemical compound and therefore can not be classified in Chapter 29.

Rather, the ingredients are formulated into a preparation for human consumption for the maintenance of good health. Therefore, the imported merchandise is, by definition, a food preparation not elsewhere specified or included. See HQ 964673, dated February 4, 2002.

HOLDING:

Glucosamine HCL Cartilage Health gelatin capsules containing D-glucosamine HCL, fish collagen, potasium sulfate and glutamine is classified in subheading subheading 2106.90.99, HTSUS, the provision for “[F]ood preparations not elsewhere specified or included: [O]ther: [O]ther.” The protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John A. Durant, Director

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