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HQ 966366




June 19, 2003

CLA-2 RR:CR:GC 966366AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.99

Port Director
U.S. Customs Service
Building # 77
Jamaica, N.Y. 11430

RE: Protest 1001-00-101482; E-Tab 400

Dear Port Director:

This is our decision on Protest 1001-00-101482, filed by counsel, on behalf of Fuji Chemical Industries, against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of E-Tab 400, a dietary supplement containing vitamin E in powdered form.

FACTS:

E-Tab 400 is a white powder containing approximately 50% tocopherol acetate and the remaining 50% consisting of calcium silicate, dibasic calcium phosphate anhydrous, dextrin, sodium carboxymethylcellulose, silicon dioxide and gelatin for use in dietary supplements.

Protestant entered the product under subheading 2936.28.00, HTSUS, the provision for "[p]rovitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or not in any solvent: [v]itamins and their derivatives, unmixed: Vitamin E (Tocopherols and related compounds with Vitamin E activity) and its derivatives."

The merchandise pertaining to the subject protest, was entered December 23, 1999. The entry was liquidated under subheading 2106.90.99, HTSUS, the provision for "[f]ood preparations not elsewhere specified or included: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther,” on January 12, 2001. The subject protest was timely filed on April 11, 2001.

ISSUE:

Is E-Tab 400 classifiable in Chapter 29, HTSUS, as Vitamin E?

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 provisions under consideration are the following:

Food preparations not elsewhere specified or included: 2106.90 Other:
Other:
Other:
Other:
Other:
2106.90.99 Other

Provitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or not in any solvent:

Vitamins and their derivatives, unmixed:

2936.28.00 Vitamin E (Tocopherols and related compounds with Vitamin E activity) and its derivatives

Note 1 to Chapter 29 provides:

1. Except where the context otherwise requires, the headings of this Chapter apply only to:

(a) Separate chemically defined organic compounds, whether or not containing impurities; . . . .

(f) The products mentioned in (a), (b), (c), (d) or (e) above with an added stabiliser (including an anti-caking agent) necessary for their preservation or transport; . . . .

The ENs to Chapter 29 state, in pertinent part, the following:

(A) Chemically defined compounds
(Chapter Note 1)

. . . Separate chemically defined compounds containing other substances deliberately added during or after their manufacture (including purification) are excluded from this Chapter. Accordingly, a product consisting of saccharin mixed with lactose, for example, to render the product suitable for use as a sweetening agent is excluded (see Explanatory Note to heading 29.25).

The separate chemically defined compounds of this Chapter may contain impurities (Note 1(a)). . . .

The term “impurities” applies exclusively to substances whose presence in the single chemical compound results solely and directly from the manufacturing process (including purification). These substances may result from any of the factors involved in the process and are principally the following:

(a) Unconverted starting materials.

(b) Impurities present in the starting materials.

(c) Reagents used in the manufacturing process (including purification).

(d) By-products.

It should be noted, however, that such substances are not in all cases regarded as “impurities” permitted under Note 1(a). When such substances are deliberately left in the product with a view to rendering it particularly suitable for specific use rather than for general use, they are not regarded as permissible impurities. For example, a product consisting of methyl acetate with methanol deliberately left in with a view to improving its suitability as a solvent is excluded (heading 38.14). . . .

Counsel for the protestant describes 50% of the product as a stabilizer. Under Note 1(f) to Chapter 29, the addition of stabilizers to a separate chemically defined compound does not exclude it from classification in Chapter 29. However, calcium silicate, dibasic calcium phosphate anhydrous, dextrin, sodium carboxymethylcellulose, silicon dioxide and gelatin are known excipients in food supplements that are not used as stabilizers. Calcium silicate is an anticaking agent. Hawley's Condensed Chemical Dictionary, 12th Ed., Van Nostrand Reinhold Company, (New York, 1993) p. 204. Dibasic calcium phosphate anhydrous is a diluent, an inert substance added to increase the bulk of an active ingredient to make the tablet a practical size for compression. Remington The Science and Practice of Pharmacy, 20th Ed., p. 860. Sodium carboxymethylcellulose, dextrin and gelatin are used as binders that "impart cohesive qualities to the powdered material." Id. at 860-861. Silicon dioxide is a glidant, "a substance that improves the flow characteristics of a powder mixture." Id. at 862. Furthermore, alpha tocopherol acetate is not a product that requires additives for additional stability (See BASF Technical Bulletin # HNVE-35-0302). Therefore, we are not convinced that 50% of the product is a stabilizer.

The case of Diachem Industries Ltd., v. United Stated of America, 22 C.I.T. 889 (1998) shows the importance of Chapter 29, Note 1, to classification in any of the headings in that chapter. That case dealt with the classification of DIAQ, a product containing anthraquinone, classified eo nomine in subheading 2914.61.00, HTSUS, in an aqueous dispersion with other ingredients including small amounts of DOWFAX 2A1, sodium hexametaphosphate, xanthan gum and soda ash. DIAQ is used as a reaction accelerator in the pulp and paper industry. Id. at 890. Plaintiff argued that although DIAQ is not a separate chemically defined organic compound, "DIAQ is known by the pulp and paper industry as anthraquinone and should be entitled to classification as such under a doctrine which enunciates that if a product is generally and definitely known, bought and sold under a particular identity, it is classified as such for tariff purposes." Id. at 894. The court found this argument unpersuasive. The court stated: "[i]n order to be classifiable within Chapter 29, DIAQ must satisfy the specific dictates of Chapter 29, Note 1. As constituted upon importation, DIAQ is not described by Note 1 and therefore, is precluded from classification within Chapter 29." Id. Likewise, the instant merchandise, E-Tab 400, is not a separate chemically defined compound and therefore can not be classified in Chapter 29.

Counsel further argues that Chapter 29, EN (C), which states that "there are certain exceptions to the rule that Chapter 29 is limited to separate chemically defined compounds" and specifically enumerates heading 29.36 as one such exception, supports the argument that E-Tab can be considered essentially vitamin E and classified in Chapter 29, HTSUS, as such. In H. Reisman Corp. v. The United States, 17 C.I.T. 1260 (1993), the court found that a product consisting of two different forms of vitamin B-12, cyancbalamin and hydroxocabamine, each a separately defined organic chemical compound, and proteinaceous matter used in animal feed could not be classified in heading 2936, HTSUS, as vitamin B, because the product was not a separate chemically defined compound. The court stated:

Note 1, however, contains an escape valve. Despite the careful cataloging of Note 1 to Chapter 29, HTSUS, the Explanatory Notes state that provitamins and vitamins (including concentrates and intermixtures) are to be classified in Chapter 29, even though they may not be separately defined chemical compounds. (citations omitted) The Explanatory Notes agree with the plain language of heading 2936, and therefore the content otherwise requires that such intermixtures and concentrates be classified under heading 2936. Thus if the merchandise were an intermixture or concentrate of cyanocobalamin and hydroxocobalamin (whether pure or impure or in a solvent or not), it would fall under heading 2936. It is neither of these. The merchandise is clearly not a concentrate, and the merchandise contains six times as much proteinaceous material as vitamin. Id. at 1263.

The instant merchandise is likewise neither a concentrate nor intermixture of vitamins. Only one vitamin is present in an equal amount with other, non-vitamin, substances. The product cannot therefore be considered a concentrate or intermixture of vitamins as described in heading 2936, HTSUS.

Instead, E-Tab 400 is a prepared product that is used in the preparation of human foods as a dietary supplement. The only heading which could include such a product at GRI 1 is heading 2106, HTSUS. Accordingly, E-Tab 400 is classified in subheading 2106.90.99, HTSUS, the provision for "[f]ood preparations not elsewhere specified or included: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther.”

HOLDING:

E-Tab 400 is classified in subheading 2106.90.99, HTSUS, the provision for "[f]ood preparations not elsewhere specified or included: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther: [o]ther.”

You are instructed to deny the protest.

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, Director

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