CLA-2 CO:R:C:G: 086744 RFC
Mr. Ken Yeung
Prince of Peace Enterprises, Inc.
3450 Third Street, Suite 3G
San Francisco, CA 94124
RE: Nutritional food preparation
Dear Mr. Yeung:
This ruling letter is in response to your request of
February 23, 1990, on behalf of Prince of Peace Enterprises,
Inc., concerning the tariff classification under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) of a
nutritional food preparation. The product is imported from China
and samples were submitted for examination.
FACTS:
The product is identified as Chinese Red Panax Ginseng
Extractum with Royal Jelly. It contains water (60%) and the
following plant- and animal-based extracts: ginseng (5%), royal
jelly (5%), and honey (30%). The product is sold in vials and is
marketed as a nutritional health supplement.
ISSUE:
Whether a nutritional preparation containing plant- or
animal-based extracts--including honey, royal jelly, and ginseng
in whatever proportional amounts--is classified under heading
2106 in the HTSUSA as food preparations not elsewhere specified
or included under other headings in the HTSUSA.
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, royal jelly, and
ginseng 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, royal jelly, and ginseng (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, royal jelly, and
ginseng (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, we conclude that the above-described
product is classified under heading 2106, HTSUSA, as this product
is a simply nutritional and healthful food preparation consumable
by humans and not elsewhere provided for or included under other
headings in the HTSUSA.
HOLDING:
The above-described product is 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.
In your request you state that there are products similar to
the above-described product being imported into the United
States at a rate of duty less than that listed above. If you
are aware of a comparable product which to the best of your
knowledge is being misclassified, we would appreciate learning
the name of the product, the name of the importer, the subheading
under which the product is being entered, and the districts in
which the product is being imported. This information should
help Customs meet its legal obligation of charging uniform duties
on products wherever imported.
Sincerely,
John Durant, Director
Commercial Rulings Division