CLA-2 CO:R:C:F 950326 ALS
Mr. Ruben T. Pangilinan
Panalpina, Inc.
One Whitehall Street
New York, New York 10004
RE: Dog Treat Biscuits Made from Grains, Meat and Animal
Byproducts, Sugar, Oils and Fats, and Minerals
Dear Mr. Pangilinan:
This is in reference to your letter of August 22, 1991,
requesting a binding ruling on dog treats manufactured in Holland
or, alternatively, Great Britain or Germany. Your request has
been referred to this office for consideration.
FACTS:
The ruling request covers 3 types of dog treats. The dog
treats have the following composition:
Animal Lovers Koekie and Happy Happer
Grain (wheat and corn) 760 gm 718 gm
Meat & animal byproducts 160 gm 208 gm
Sugar 29 gm 23 gm
Oils and Fats 22 gm 20 gm
Minerals 29 gm 31 gm
1000 gm 1000 gm
The dog treats will be imported in a 10 kilogram (22 pound)
box.
You state that the dog treats will be imported in a 22 pound
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box which the inquiry refers to as a "master carton". The
inquiry indicates that the box will be sent to an occupational
center for the elderly or disabled subsequent to importation
where the contents thereof will be repackaged into plastic jars
with screw on lids or small boxes and a label with the country of
origin applied. After that processing the dog treats will be
returned by truck to the importer.
A sample of the box, which will apparently be used for each
of the referenced dog treats and for another treat labelled
"Junior" which is not referenced in the inquiry, has been
provided. A sample of the plastic jar and one variety of the dog
treats have been provided.
The box has a picture of a dog and a horse on its front and
back panels, the words "Animal Lovers" written across a heart in
the center of such panels, as well as pictures of 3 different
types of treats whose names are printed in the corners of these
panels. There is wording on these panels which appears to
indicate that the contents of the box are manufactured for dogs
and horses but such use is not elsewhere specified. The side
panels of the box contain the following information in 4
different languages:
1. Information that it is best to use the product before a
date to be specified.
2. Under a heading "For Your Faithful Canine Companion" it
provides the Average Analysis and Composition of each
product. It also states that the products should be
stored in a cool and dry room.
3. The side panels also contain the information that the contents are marrow filled biscuits for all kind (sic)
of dogs, they have calcium for strong bones and a
healthy pair of teeth and bran for an excellent
digestion. The biscuits are also noted to be free of
colorants and preservatives.
4. The weight of the contents, 10 kg, is also specified on
the side panels of the box.
The jars utilized for repackaging will contain approximately
2 pounds of the product according to information telephonically
received from the inquirer who similarly indicated that the
product might be repackaged into one pound boxes.
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ISSUE:
1. Are the products mixed feeds or mixed-feed
ingredients consisting of not less the 6 percent by
weight of grain or grain products?
2.Are the products dog food put up for retail sale?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the goods,
and if the heading and legal notes do not otherwise require, the
remaining GRI's are applied taken in order.
We first considered whether the products under consideration
were mixed feeds or mixed-feed ingredients consisting of not less
than 6 percent by weight of grain or grain products. According
to Additional U.S. Note 1 to Chapter 23, HTSUSA, such term
"embraces products...which are an admixture of grains (or
products, including byproducts, obtained in milling grains)
with molasses, oilcake, oil-cakemeal or feedstuff, and which
consist of not less than 6 percent by weight of grain or grain
products." We note that each of the products contain an
admixture of wheat and corn and that such grains account for over
70 per cent of each product. We thus believe that the products
are mixed feeds or mixed-feed ingredients as specified in the
referenced Note.
We next considered whether the products are dog food put up
for retail sale. In Headquarters Rulings Letter (HRL) 086640,
dated June 12, 1990, we noted that the provision for food
includes both meals and snacks.
Thus, the only issue remaining is whether the products are
packaged for retail sale. In this regard we note that the
importer intends to repackage the contents of the imported
package into smaller containers which will be labelled to show
the country of origin, ingredients and brand name. While we do
not question the importer's intention to repackage the product
into small retail packages and not to sell it in the box in which
it is imported, we must consider the product in its condition and
as packaged at the time of importation. The importer's intention
subsequent to importation, while of assistance in making this
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determination, is not governing.
In examining the "master carton" we note that it contains
much information as to the product. This includes the average
analysis, composition, that it contains marrow, calcium and bran
and how they are good for dogs. The "master carton" contains
further information indicating that the product is free of
colorants and preservatives. It is also noted thereon that the
treats are "For Your Faithful Canine Companion", that they should
be stored in a cool and dry room and that they should be used
before a date to be specified. There is no information on the
"master carton" identifying the manufacturer of the product or
the importer. The country of origin is not noted on this
package. It is not clear as to whether the wording "Animal
Lovers" appearing on the front and rear panels of the box is a
brand name or if it serves some other purpose.
Although it is the importer's stated intention to repackage
the product into smaller containers and not sell the product in
the "master carton", we believe that the above described "master
carton", in which the product is imported, is a retail package.
We note that the side panels of the box specify that the product
is "For Your Faithful Companion". This appears to be directed at
the dog owner rather than a party who will be repackaging the
product. We also believe that the other information on the side
panels is directed toward the dog owner. Information such as the
product contains marrow for all kinds of dogs, calcium for strong
bones and a healthy pair of teeth, and bran for excellent
digestion is data that would be known by a wholesaler of the
product without specific notation thereof. Likewise information
as to the average analysis, the absence of colorants and
preservatives would seem to be informational items directed at
the retail consumer. This is to be contrasted with our finding
in HRL 088165, dated February 5, 1991, wherein we concluded that
plain unmarked cartons containing 22 or 27.5 pounds of dog
treats, which would be repackaged into smaller containers
subsequent to importation, would be considered bulk packages.
We believe that the information on the "master carton"
herein would be available through advertising literature supplied
to the wholesaler by the manufacturer. It would appear that the
importer would be aware of this information before ordering the
product and that this information may have been the basis for
ordering this product vis a vis a similar product. Although the
"master carton" contains a sizeable quantity of the product we do
not believe that is conclusive as to the intended disposition of
the product. We note that dog food may normally be purchased at
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the retail level in 40 pound bags. While the subject product is
to be used as a treat, not as a meal food, and presumably
consumed at a lower rate, we do not believe this conclusively
confirms that the "master carton" is not intended for the retail
purchaser in light of the previously referenced items which we
believe indicates that the "master carton" is intended for the
retail consumer.
HOLDING:
The dog treats under consideration which consist of not less
than 6 per cent by weight of grain or grain products fall within
the term mixed feed and mixed-feed ingredient as defined in
Additional U.S. Note 1 to Chapter 23, HTSUSA. Such articles,
when imported in 22 pound boxes with information thereon directed
at the retail consumer shall be considered as put up for retail
sale. The articles in their condition as imported are considered
as put up for retail sale and the fact the importer intends to
repackage the articles prior to placing them in the retail
marketing chain is not relevant. Such articles would be
classifiable under subheading 2309.10.00, HTSUSA, and subject to
free general rate of duty.
Such articles, if the product of the European Economic
Community, as in this case, are classifiable under the provisions
of subheading 9903.23.35, HTSUSA, and subject to a general rate
of duty of 100 per cent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division