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NY L86252




September 8, 2005

CLA-2-21:RR:NC:N2:228 L86252

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9985

Ms. Mary Porter
The Hershey Company
100 Crystal A Drive
Hershey, PA 17033-0810

RE: The tariff classification of breath freshening capsules from Japan

Dear Ms. Porter:

In your letters dated July 12, 2005 and August 8, 2005 you requested a tariff classification ruling.

Three samples were submitted with your July letter and ingredients breakdowns for four products were provided with your August correspondence. The samples have been retained with the National Import Specialist. Ice Breakers® Liquid Ice™ breath freshening capsules, spearmint, peppermint, cool mint (“alpine splash” on the ingredients breakdown), and cinnamon-flavored, are edible products in the form of liquid-filled spheres, approximately 1/8-inch in diameter, 30 spheres packed in a flip-top plastic carry case, blister packed on a card for retail sale. Ingredients common to all flavors are vegetable oil, natural and artificial flavor, gelatin, glycerin, sucralose, water, mineral oil, neotame (artificial sweetener), color, and carnauba wax. The spearmint, alpine splash, and peppermint flavored products also contain triacetin. Package instructions direct the purchaser to place a mint on the tongue and allow it to dissolve, for “instantly fresh breath.”

In your letters, you cite the decision of the Court of Appeals for the Federal Circuit in Warner Lambert v. U.S, no. 04-1489, where certain goods were classified in subheading 3306.90.00, Harmonized Tariff Schedule of the United States (HTS), and suggest that tariff classification should apply to the instant merchandise. We do not agree. The products before the Court were of a different form and composed of different ingredients than the Ice Breakers capsules.

The applicable subheading for the Ice Breakers® Liquid Ice™ breath freshening capsules will be 2106.90.9985, HTS, which provides for food preparations not elsewhere specified or includedotherotherconfectionery (including gum) containing synthetic sweetening agents (e.g. saccharin) instead of sugar. The rate of duty will be 6.4 percent ad valorem.

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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