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NY K88954




September 22, 2004

CLA-2-22:RR:NC:SP:232 K88954

CATEGORY: CLASSIFICATION

TARIFF NO.: 2202.90.1000; 2202.90.2400; 2202.90.2800

Mr. Ron Burry
Farmers Cooperative Dairy
PO Box 8118
Halifax, Nova Scotia
Canada B4B 1A8

RE: The tariff classification of Flavored Milk-based Drinks from Canada

Dear Mr. Burry:

In your letter dated August 19, 2004, you requested a tariff classification ruling.

You submitted product samples and descriptive literature with your request. The subject merchandise is a variety of dairy-based items: chocolate, vanilla, and strawberry milkshakes, chocolate milk, 2 percent milk, and bulk ice cream. The milkshakes and milk flavors will be imported in 200 ml, shelf stable tetra brick drink boxes for retail sale. Samples were sent in for the chocolate, vanilla, and strawberry milkshakes. The chocolate milkshake is said to consist of milk, sugar, skimmed milk powder, soy protein, stabilizers, salt, and cocoa. The strawberry and vanilla milkshakes have similar ingredients, but have flavors and colors instead of cocoa. The chocolate milk is stated to contain partly skimmed milk, sugar, cocoa, cornstarch, salt calcium carrageenan, colors, flavors, and added vitamins.

The applicable subheading for the chocolate milkshakes and the chocolate milk will be 2202.90.1000, Harmonized Tariff Schedule of the United States (HTS), which provides for Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009: Other: Milk-based drinks: Chocolate milk drink. The general rate of duty will be 17 percent ad valorem.

The applicable subheading for strawberry and vanilla milkshakes the will be 2202.90.2400, Harmonized Tariff Schedule of the United States, Annotated, (HTSUSA), which provides for Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009: Other: Milk-based drinks: Other: Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions. The general rate of duty will be 17.5 percent ad valorem. If the quantitative limits of additional U.S. note 10 to chapter 4 have been reached, the product will be classified in subheading 2202.90.2800, HTS, and dutiable at the rate of 23.5 cents per liter plus 14.9 percent ad valorem. In addition, products classified in subheading 2202.90.2800, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.04.50 to 9904.04.58, HTS. .

Your inquiry does not provide enough information for us to give a classification ruling on the 2 percent milk and the bulk ice cream. Your request for a classification ruling on the 2 percent milk should include a sample of the milk and a breakdown of component materials by weight and percentage of ingredients. Also, please provide an ingredient listing which identifies the function of each ingredient in the product. For the ice cream, please provide the weight of the milk fat and non-fat milk solids. For the product containing bulk flavors (i.e., chocolate pieces, candy pieces, etc.) provide the weight of the milk fat and non-fat milk solids, calculated both on a basis excluding the weight of the bulk flavors and as a percentage of the finished product. Does this ice cream met the standard of identity for ice cream found in Title 21, Part 135.110 of the Code of Federal Regulations, (21 CFR 135,110)? When this information is available, you may wish to consider resubmission of your request.

The Food and Drug Administration may impose additional requirements on these products. You may contact the FDA at:

Food and Drug Administration
Division of Import Operations and Policy
5600 Fishers Lane
Rockville, Maryland 20857
Telephone: (301) 443-6553

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 John Maria at (646) 733-3031.

Sincerely,

Robert B. Swierupski
Director,

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