CLA-2 CO:R:C:G 084642 JGH
Harvey M. Applebaum, Esq.
Covington & Burling
1201 Pennsylvania Ave., N.W.
P.O. Box 7566
Washington, D.C. 20044
RE: Cream Liqueur Whipped Topping
Dear Mr. Applebaum:
Your letter of May 30, 1989, concerns the tariff
classification, under the Harmonized Tariff Schedule of
the United States (HTSUS), of a dessert whipped cream
topping made in Holland, and imported by W. A. Taylor and
Company, a subsidiary of Hiram Walker and Sons, Inc.
FACTS:
The product is said to consist of about 24 percent by
weight cream having a butterfat content of 35 percent, 37
percent by weight liqueur concentrate at 32 percent alcohol
by volume, 16 percent by weight corn sugar, 12 percent water,
4 percent cacao fat, 3.5 percent dry glucose, and a stabilizer.
The product is packaged in an aerosol container and is
to be sprayed on the top of hot drinks, fruits and parfaits,
and desserts such as cakes, brownies, puddings and pies.
It is described as being a liqueur in a new form.
A comparison of a cream liqueur with the aerosol topping
was given as follows:
Per Liter
Cream Liqueur Aerosol
Liqueur
Coffee Liqueur Concentrate 0 417 g
(32.8 % Alcohol by Volume)
Whiskey Liqueur Concentrate
(41.8% alcohol by volume) 469 g 0 g
-2-
Fresh Cream 35% Fat 366 g 270 g
Dry Corn Sugar 0 g 180 g
Water 160 g 140 g
Cacao Fat 0 g 45 g
Dry Glucose and/or Sucrose 32 g 40 g
Stabilizers 34 g 34 g
ISSUE:
Whether the whipped cream topping is classifiable under
the provision for cordials, liqueurs, kirschwasser and ratafia
in subheading 2208.90.45, HTSUS, or the provision for other
food preparations of goods of headings 0401 to 0404, not
containing cocoa powder or containing cocoa powder in a
proportion by weight of less than 10 percent, not elsewhere
specified or included: articles of milk or cream not specially
provided for, in subheading 1901.90.3040, HTSUS, and subject
to the quota restraints of subheading 9904.10.60, HTSUS.
LAW AND ANALYSIS:
Essentially, it is your contention that the product is a
liqueur modified for aerosol use and that the alcohol gives the
whipped cream product its essential character. You also assert
that the product is an emulsion as described in the Explanatory
Notes to Chapter 22, HTSUS, in listing the types of beverages
included in that chapter.
Classification under the HTSUS is governed by the General
Rules of Interpretation (GRI's). GRI 1 provides that
classification is determined first by the headings and relative
Section and Chapter Notes. GRI 3(b) states that composite
goods of different materials which can not be classified by
reference to GRI 3(a), shall be classified as
if they consisted of the material which gives them their
essential character. GRI 3(c) provides that when goods cannot
be classified by reference to GRI 3(a) or (b), they shall be
classified under the heading which occurs last in numerical
order among those of equal merit.
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The Explanatory Notes which should be consulted for
guidance in interpretations of the provisions of the HTSUS,
state for Chapter 22, "Beverages, Spirits and Vinegar", that
heading 2208 covers spirits, liqueurs, and other spiritous
beverages. The notes state that the products covered in
Chapter 22 are quite distinct from the foodstuffs covered in
other chapters. They further identify the various products
covered, which include distilled alcoholic liquids and
beverages. For heading 2208, the Explanatory Notes mention
liqueurs as spiritous beverages.
Thus, for classification purposes, the product has to be
a beverage before it can be considered a liqueur and classified
in heading 2208. The product is not a beverage but a topping
of cream, sugars and a liqueur flavoring. For tariff purposes
a beverage is a product which is drinkable in its condition as
imported. Strohmeyer v United States, 28 CCPA 34, C.A.D. 121.
The product is not and is not intended to be potable in its
condition as imported. In the comparison table given for cream
liqueur and the aerosol liqueur, it is noted that, while all
the ingredients in the liqueur are in the topping, not all the
topping components are in the liqueur. The topping contains
both corn sugar and cocao fat, which are apparently added
because they give the topping a consistency and texture which
are not needed for the liquid liqueur. As to the question of
considering alcohol as its essential character as set forth in
GRI 3(b), this concept is considered where the import to be
classified is a mixture, or composite goods of different
materials or components, or sets. Even if the topping is
considered a mixture, GRI 1 would still apply, since food
preparations in heading 1901 include mixtures. In its
condition as imported, the product is not a beverage but a
food preparation with a milk or cream base. Thus, since
heading 1901 would apply, there is no need to resort to GRI
3(c).
Generally, although consideration is given to opinions of
other agencies, such opinions are not controlling, especially
where there is a specific tariff provision which clearly
describes the imported product.
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HOLDING:
Liqueur-flavored whipped cream topping is classifiable
under subheading 1901.90.3040, HTSUS, dutiable at the rate of
17.5 percent ad valorem, and subject to the quota restrictions
of subheading 9904.10.60, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division
6 cc: Area Dir., N.Y. Seaport
Hurley library/peh
084642
1 cc: Terry Cates
Chief, Industry Compliance
Bureau of Alcohol, Tobacco and Firearms
Room 6205
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20226