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NY I81734




May 30, 2002

CLA-2-17:RR:NC:2:228 I81734

CATEGORY: CLASSIFICATION

TARIFF NO.: 1704.90.3550; 2106.90.9998

Mr. Everett Hayes
Pavel World Products
P.O. Box 1207
Abita Springs, LA 70420

RE: The tariff classification and country of origin marking of candy products from China

Dear Mr. Hayes:

In your letters dated April 5, 2002 and May 6, 2002 you requested a tariff classification and country of origin marking ruling.

Ingredients breakdowns and samples were submitted with your letters. The samples were examined and disposed of. The products are described as candy products in liquid and solid form. Mega Candy Dynamite is an aqua-colored product in granular form composed of dextrose, a “gassified candy” blend of sugar, glucose, and lactose, citric acid, malic acid, silicon dioxide, and artificial colors and flavors. The Mega Candy Dynamite will be imported in a plastic tube with a screw top. Kolor Me Kandy, Ultimate Candy Spray, and Candy Squeezer are liquids composed of water, citric acid, propylene glycol, flavor, artificial sweeteners (acesulfame K and sucralose), sodium benzoate, potassium sorbate, and artificial color. The Ultimate Candy Spray and Kolor Me Kandy are packed in a plastic tube with a pump-spray top; Candy Squeezer is put up in a plastic tube with an eye dropper-like tip.

Liquid flavor concentrate, powder flavoring, pressure sensitive paper labels, and plastic shrink sleeves of United States origin will be shipped to China. There, water will be added to the liquid concentrate and dextrose will be added to the powder flavoring. The finished liquid and powder will be filled into Chinese-made containers, the labels applied, the shrink sleeve fitted over the labels, and the filled and labeled products packed into retail display cartons and shipped to the United States.

The applicable subheading for the Mega Candy Dynamite will be 1704.90.3550, Harmonized Tariff Schedule of the United States (HTS), which provides for sugar confectionerynot containing cocoaotherconfections or sweetmeats ready for consumption otherotherput up for retail saleother. The rate of duty will be 5.6 percent ad valorem.

The applicable subheading for the Kolor Me Kandy, Ultimate Candy Spray, and Candy Squeezer will be 2106.90.9998, HTS, which provides for food preparations not elsewhere specified or includedotherotherother. The rate of duty will be 6.4 percent ad valorem.

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

The "country of origin" is defined in 19 CFR 134.1(b) as "the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the 'country of origin' within the meaning of this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin." For tariff purposes, the courts have held that a substantial transformation occurs if a new and different article emerges having a distinctive name, character or use. AnheuserBusch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982).

In this case, the blending of the flavoring powder with dextrose results in a substantial transformation. The finished Mega Dynamite Candy is a product of China for marking purposes. Adding water to the liquid flavor concentrate does not result in a substantial transformation. The finished Kolor Me Kandy, Ultimate Candy Spray, and Candy Squeezer articles are products of the United States for marking purposes. These three products will not be required to have any country of origin marking pursuant to 19 U.S.C. 1304 when imported into the United States.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Stanley Hopard at 646-733-3029.

Sincerely,

Robert B. Swierupski
Director,

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