CLA-2 CO:R:C:G 084981 RFC
Mr. Harold I. Loring
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, NY 10017
RE: Nutritional food preparations
Dear Mr. Loring:
This ruling letter is in response to your request of June
29, 1989, on behalf of Bee-Alive, Inc., concerning the tariff
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) of certain nutritional food
preparations. Samples were submitted for examination.
Please be advised that your request for confidential
treatment for information set forth in this ruling letter is
hereby denied because there exists no privileged or confidential
information in this letter.
FACTS:
There exist five separate products. Each of the five
products contains plant- or animal-based extracts, included
among which are various proportional amounts of honey and royal
jelly. Each of the five products may be identified and more
particularly described as follows:
(1) Regina Royal Five
pure honey..............207 g
bee pollen...............11 g
royal jelly...............5 g
natural vitamin C.........4 g
This product is marketed in a jar.
(2) Regina Royal Jelly Capsules
pure honey..............200 mg
wheat germ oil..........180 mg
royal jelly.............150 mg
beeswax..................50 mg
soya lecithin............10 mg
This product is marketed in capsules (which are
apparently edible and made of gelatin).
(3) Regina Royal Concorde
pure honey (6.6 g).....6600 mg
royal jelly.............500 mg
almond essence..........150 mg
ginseng.................100 mg
damiana aphrodisiaca....100 mg
serenoa serrulata.......100 mg
capsicum..............0.075 mg
This product is marketed in a vial.
(4) Regina Animal Magic Capsules
dogs cats horses
royal jelly..........100 mg 50 mg 500 mg
halibut liver oil.....90 mg 1000 mg 0 mg
wheat germ oil........75 mg 50 mg 650 mg
honey.................25 mg 25 mg 335 mg
beeswax...............10 mg 10 mg 100 mg
lecithin...............6 mg 5 mg 100 mg
vegetable shortening...0 mg 25 mg 300 mg
spirulina..............0 mg 0 mg 500 mg
This product is marketed in capsules (with the capsules
apparently functioning merely as containers for the
liquid product and not intended to be consumed by the
animals).
(5) Regina Animal Magic Royale
dogs cats horses
pure honey............16.5 mg 6.6 mg 66 g
royal jelly...........1250 mg 500 mg 5 g
almond essence........375 mg 150 mg 1.5 g
Korean ginseng........250 mg 100 mg 1 g
damiana aphrodisiaca..250 mg 100 mg 1 g
serenoa serrulata.....250 mg 100 mg 1 g
capsicum............0.1875 mg 0.075 mg 0.75 mg
This product is apparently marketed in liquid form.
ISSUES:
(1) Whether nutritional preparations containing plant- or
animal-based extracts--including honey and royal jelly in
whatever proportional amounts--are classified under heading 2106
in the HTSUSA as food preparations not elsewhere specified or
included under other headings in the HTSUSA.
(2) Whether nutritional preparations containing plant- or
animal-based extracts--including honey and royal jelly in
whatever proportional amounts--and marketed, sold, or distributed
for use in animal feeding but consumable by humans are classified
under heading 2309 in the HTSUSA as food preparations of a kind
used in animal feeding.
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's). GRI 1 states,
in part, that "for legal purposes, classification shall be
determined according to the terms of the headings and any
relative section or chapter notes...."
Heading 2106 provides for food preparations not elsewhere
specified or included under other headings in the HTSUSA. The
Explanatory Notes to heading 2106 state that this heading
includes, inter alia, "[n]atural honey enriched with bees' royal
jelly [and] [p]reparations, often referred to as food
supplements, based extracts from plants, fruit concentrates,
honey, fructose etc....[,] [which] are often put up in packagings
with indications that they maintain general health or well-being"
(emphasis in original). See Explanatory Notes (5) and (16) to
heading 2106, HTSUSA. It is clear, then, that prepared food
substances (whether in liquid or solid or capsule form) not
elsewhere specified or included under other headings in the
HTSUSA, particularly substances containing, among other things,
plant- and animal-based extracts (e.g., honey and royal jelly in
whatever proportional amounts) and prepared specifically for
health or nutritional purposes, are classified under heading 2106
of the HTSUSA.
Heading 2202 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. The
Explanatory Notes to heading 2202 state that this heading covers
nonalcoholic beverages and includes, inter alia, "[b]everages
such as lemonade, orangeade, cola...[which] are generally
presented in bottles or other airtight containers...[and]
...[c]ertain other beverages ready for consumption, such as those
with a basis of milk and cocoa." It is evident, then, that
beverages, as the term is contemplated by this heading, consist
of drinkable liquid substances which are marketed, sold, or dis-
tributed in multi-ounce containers (e.g., bottles) for
consumption in significant (i.e., multi-ounce) and non-measured
(e.g., not marketed, sold, or distributed in dosage form or in
vials) quantities, and not necessarily consumed for strictly
health or nutritional purposes (e.g., colas). Accordingly, food
preparations in liquid form, containing, among other things,
honey and royal jelly (in whatever proportional amounts),
marketed, sold, or distributed in vials or other like containers
for consumption in small, measured, or dosage-form quantities,
and taken for nutritional or health purposes would, most
certainly, not be classified as "beverages" under heading 2202 of
the HTSUSA.
Heading 0410 provides for (1) edible products of animal
origin (i.e., animal products in an unprocessed or unprepared
state, e.g., turtles' eggs and salanganes' nests--see Explanatory
Notes to heading 0410) that are (2) not elsewhere specified or
included under other headings in the HTSUSA. Nutritional food
preparations containing various types of plant- or animal-based
extracts, including, among other things, honey and royal jelly
(in whatever proportional amounts), would not be classified under
heading 0410 because such items are, quite obviously, something
more than mere "edible products of animal origin" (as such items
are preparations that contain various ingredients--including,
among other things, edible products not of animal origin--some or
all of which have been processed or prepared).
In light of the above, it has been conclusively established
that the above-described products identified as Regina Royal
Five, Regina Royal Jelly Capsules, and Regina Royal Concorde
are classified under heading 2106, HTSUSA, as these products are
simply nutritional and healthful food preparations consumable by
humans and not elsewhere provided for or included under other
headings in the HTSUSA.
Heading 2309 provides for preparations of a kind used in
animal feeding. Explanatory Note (II)(C)(c) to heading 2309,
however, states that heading 2309 excludes "[p]reparations which,
when account is taken, in particular, of the nature, purity and
proportions of the ingredients, the hygiene requirements complied
with during manufacture and, when appropriate, the indications
given on the packaging or any other information concerning their
use, can be used either for feeding animals or for human
consumption...." Although apparently consumable by humans, the
above-described products identified as Regina Animal Magic
Capsules and Regina Animal Magic Royale are marketed, sold, and
distributed as food preparations for use in the feeding of dogs,
cats, and horses. These products are, then, of the type provided
for under heading 2309, and therefore should be classified under
that heading.
In your request, you invoke the concept of "essential
character" in your argument regarding the proper classification
of the above-identified products. Please be advised that this
concept is only applicable, pursuant to GRI 3, when (1)
classification cannot be determined according to the terms of
the headings and relative section or chapter notes, (2) the goods
(or products) are, prima facie, classifiable under two or more
headings, and (3) GRI 3(a) is not applicable (i.e., there exists
no heading that provides the most specific description of the
goods (or products) as among headings providing a more general
description). As has been established above, the above-
described products identified as Regina Royal Five, Regina Royal
Jelly Capsules, and Regina Royal Concorde are provided for under
heading 2106 and the above-described products identified as
Regina Animal Magic Capsules and Regina Animal Magic Royale are
provided for under heading 2309. Therefore, classification has
been determined according to the terms of the headings.
Consequently, each of the products is classifiable under only one
heading and not, prima facie or otherwise, under two or more
headings.
HOLDING:
The above-described products identified as Regina Royal
Five, Regina Royal Jelly Capsules, and Regina Royal Concorde are
classified under subheading 2106.90.6099, HTSUSA, which provides
for food preparations not elsewhere specified or included, other,
other, other, other, other. The rate of duty under this
subheading is 10% ad valorem.
The above-described products identified as Regina Animal
Magic Capsules and Regina Animal Magic Royale are classified (1)
under subheading 2309.10.0010, HTSUSA, which provides for
preparations of a kind used in animal feeding, dog or cat food,
put up for retail sale, in airtight containers, if marketed,
sold, or distributed for use in the feeding of dogs or cats and
(2) under subheading 2309.90.1045, HTSUSA, which provides for
preparations of a kind used in animal feeding, other, mixed feeds
or mixed feed ingredients, other livestock feed, prepared, if
marketed, sold, or distributed for use in the feeding of horses.
Products classified under subheadings 2309.10.0010 and
2309.90.1045 may be entered free of duty.
Sincerely,
John Durant, Director
Commercial Rulings Division