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HQ 965286




September 19, 2002

CLA-2 RR:CR:GC 965286 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9997

Port Director
U.S. Customs Service, Attn.: Team 710
301 East Ocean Ave.
Long Beach, CA 90803

RE: Protest 2704-01-102455; Flavored Gels

Dear Port Director:

This is our decision on Protest 2704-01-102455, filed by counsel for New Choice Food, Inc., against your classification of "Flavored Gels" under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 2001, were liquidated June 1, 2001, and the protest timely filed on August 28, 2001.

FACTS:

The product described in the entries as "mini gels" and "Mini fruity gels" are snack or dessert items in the form of a gelatin-like material put up for retail sale in sealed plastic cups. An ingredient breakdown provided by the protestant states the composition to be 60.7% water, 13% sugar, 11% fructose, 10% coconut gel, 3% Konjac powder, 2% seaweed extract, and less than 1% each of citric acid, natural flavorings and colorings.

The product was entered in subheading 2007.99.7500, HTSUS, the provision for fruit jellies. You reclassified the product in subheading 2106.90.9997, HTSUS, as an other food preparation not elsewhere specified or included.

The protestant claims classification in subheading 2007.99.7500, HTSUS, as a jelly because the ingredients are boiled, followed by cooling.

ISSUE:

Whether the flavored gels are classified in subheading 2007.99.7500, HTSUS, as fruit jellies or in subheading 2106.90.9997, HTSUS, as an other food preparation not elsewhere specified or included.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

The protestant argues that the product is classified as a fruit jelly of heading 2007, HTSUS. Further, the protestant suggests a similarity between the method of production of the fruit gels with the fruit jellies of heading 2007, HTSUS. A manufacturing flow chart was submitted with the protest materials, identifying the production sequence as "blending gelling agent," "heating in water," "filling in cup," "sealing of cup," "pasteurization," and "cooling/drying" which the protestant summarizes on the CF 19 as "boiling the ingredients followed by cooling." The protested fruit gels are, indeed, jelly-like, and they are, indeed, obtained by cooking, but that is the extent of the similarity between the goods under review and the products described by the heading.

The EN for heading 2007 states that "Fruit jellies are prepared by boiling fruit juices (expressed from raw or cooked fruit) with sugar until the product sets on cooling. They are of firm consistency, clear and free from pieces of fruit." The ENs state the primary requirement for consideration of classification in subheading 2007.99, HTSUS, is the presence of a fruit juice component. The fruit gels under consideration contain no such ingredient. In addition, the structure of the product under review is the result of the action of konjac powder and seaweed extract and the presence of coconut gel. The lack of fruit juice and the presence of the alternative stabilizers precludes classification in chapter 20.

Fruit jellies are products prepared by cooking clarified fruit juice and sugar in approximately equal proportions which, upon cooling, form a solid mass. The ENs general description of the components and properties of fruit jellies corresponds in significant part with the United States Food and Drug Administration's (FDA) Standards of Identity for labeling purposes (21 CFR 150.140). The gelling action in a fruit jelly is created by pectin, a substance occurring naturally in fruits. In preparing fruit jellies, natural or synthetic pectin may be added. However, the ENs in the exclusion to heading 2007 state that "table jellies prepared from gelatin, sugar and fruit juice or artificial fruit essences" are excluded from the heading. Although the exclusionary note singles out gelatin-based products, Customs understands this to suggest that the creation of a jelly-like structure through the utilization of any other stabilizer compels classification outside of chapter 20.

To claim a proper classification in subheading 2007.99.75, HTSUS, the product must conform to the standards of "Fruit jellies." For the reasons indicated, the product does not qualify for classification in chapter 20. Because the product is not described elsewhere, classification is according to the general description of subheading 2106.90.9997, HTSUS, as "Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other: Other: Other: Other: Containing sugar derived from sugar cane and/or sugar beets." This decision is in accord with New York Ruling Letter (NY)H82650, issued June 26, 2001, on a substantially similar product.

We note that this product was subject to seizure on May 22, 2002, by the FDA. The seizure is based on a determination that "this type of candy pose a serious choking risk, particularly to infants, children and the elderly" and that they "pose an unacceptable risk to U.S. consumers." FDA News, P02-16, May 22, 2002.

HOLDING:

The Fruit Gel Snack is classified in subheading 2106.90.9997, HTSUS, as other food preparations.

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,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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