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HQ 965995




December 26, 2002

CLA-2 RR: CR: GC 965995 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.99

Mr. Isaac Zaks
Gel-A-Mint Brands
P.O. Box 1996
Linden, NJ 07036

RE: Reconsideration of NY I83622; breath freshening strips

Dear Mr. Zaks:

This is in response to your letter dated October 16, 2002, requesting reconsideration of NY I83622, issued on June 24, 2002, which classified certain breath freshening strips under subheading 2106.90.99, Harmonized Tariff Schedule of the United States (HTSUS), as other food preparations not elsewhere specified or included. A sample was provided. We have reviewed NY I83622 and have found the ruling to be correct.

FACTS:

“Gel-A-Mint MagikStrips” are dissolving breath freshening strips. The strips are thin, translucent wafers measuring approximately 11/2 inches long and one inch wide. The strips are composed of corn starch, gelatin, casein, carrageenan, vegetable oil, glycerin, sucrose fatty acid ester, aspartame, potassium acesulfame, menthol, flavor and color. The strips are packed in a plastic dispenser case and mounted on a blister card.

ISSUE:

Whether “Gel-A-Mint MagikStrips” are classifiable in heading 2106, HTSUS, which provides for food preparations not elsewhere specified or included, or in heading 3306, HTSUS, which provides for preparations for oral and dental hygiene.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

2106 Food preparations not elsewhere specified or included:

2106.90 Other:
Other:
Other:
Other:
Other:

2106.90.99 Other:

2106.90.9985 Confectionery (including gum) containing synthetic sweetening agents (e.g., saccharin) instead of sugar.
Confectionery
3306 Preparations for oral or dental hygiene, including denture fixative pastes and powders; yarn used to clean between teeth (dental floss), in individual retail packages:

3306.90.00 Other

“Gel-A-Mint MagikStrips” are a predominantly comprised of pollysaccharides and artificial sweeteners. They are taken orally to freshen breath, and dissolve instantly in the mouth. You claim they are classifiable in heading 3306, HTSUS. As stated by the terms of the heading, goods of heading 3306, HTSUS, are for hygiene. Thus, dentifrices, mouthwashes and oral perfumes must be hygienic in nature.

The term “hygiene” is not defined in the HTSUS. However, in HQ 963764, dated January 11, 2002, a ruling classifying certain Certs® mints, we employed the definition of “hygiene” found in the Random House Dictionary of the English Language. The definition is as follows: "1. Also, hygienics, the science that deals with the preservation of health. 2. a condition or practice conducive to the preservation of health, as cleanliness." The Certs® products at issue were not classifiable as preparations for oral hygiene because they did not address the cause of the bad breath, as a toothbrush and toothpaste or a dental hygienist would, by improving the overall cleanliness of the mouth.

Similarly, the “Gel-A-Mint MagikStrips” do not clean the mouth or contribute to oral cleanliness in any way. They are advertised to provide a clean “sensation,” not clean breath. None of the ingredients have any therapuetic qualities, but for the menthol, which, in this case, is not orally therapeutic. It merely provides the fresh and clean feeling, as it does with mints such as Certs®. On the contrary, a similar product not before Customs, Listerine Pocketpaks®, contain antiseptic ingredients, and are sold with other oral hygiene products. Therefore, “Gel-A-Mint MagikStrips” are not classifiable in heading 3306, HTSUS.

The ENs to heading 21.06 state, in pertinent part, that the heading covers, for example “(8) Edible tablets with a basis of natural or artificial perfumes (e.g., vanillin), (9) Sweets, gums and the like (for diabetics, in particular) containing synthetic sweetening agents (e.g., sorbitol), instead of sugar.” The instant dissolving, gum-based strip is akin to the articles described in the exemplars. While not a mint, which is a tablet-form confection classified in this heading (if made with artificial sweeteners), the strips have similar ingredients and perform the same non-hygienic function. See HQ 963764. “Gel-A-Mint MagikStrips” are of a class or kind of good covered by heading 2106, HTSUS, and should be classified accordingly.

You suggest that goods covered by heading 2106, HTSUS, are “nourishing,” or “sustain life, provide energy, or promote growth,” standards which you derived from a lexicographic definition of “food.” However, the lengthy ENs to the heading covers many types of edible products that do not necessarily sustain life, provide energy, or promote growth. As described above, the heading covers goods of this kind. Thus, NY I83622 is affirmed.

HOLDING:

“Gel-A-Mint MagikStrips” are classifiable in subheading 2106.90.9985, HTSUS, which provides for “Food preparations not elsewhere specified or included: other : : : other: confectionery (including gum) containing synthetic sweetening agents (e.g., saccharin) instead of sugar.”

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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