HQ 951488
Dec 17,1992
CLA-2 CO:R:C:F 951488 JGH
Michael K. Tomenga, Esq.
McKenna & Cuneo
1575 Eye Street, NW
Washington, D.C. 20008
RE: Classification of cake decorations that contain dairy
ingredients.
Dear Mr. Tomenga:
This is in reference to your interest in the tariff
classification, under the Harmonized Tariff Schedule of the
United States (HTSUS), of products referred to as "white cake
glaze" or "white confectioner's coating." Although
reconsideration of certain rulings was requested, in addition
your client, Mr. Schott, is interested in obtaining a ruling on a
similar product. A meeting was held on this issue on July 9,
1992.
Specifically, five rulings concerning this type of product
were mentioned. Since your client was not the recipient of any
of those decisions, Customs is precluded from reviewing the
decisions on that basis. See 19 CFR 177.
FACTS:
The product which you are interested in obtaining a ruling
on is called "C2045 White Glaze", which is said to be used by
bakers and confectioners to coat and decorate cakes and
confections. It is composed of:
Ingredient Percentage
Sugar 46
Vegetable Fat 41.7
Skim Milk Powder 11.6
Under the prior tariff law, it is asserted, the glaze was
classified as an edible preparation in item 183.05, TSUS, and as - 2 -
it was regarded as a "cake decoration", it was not subject to
quota. It is asserted that the corresponding provision in the
Harmonized Tariff Schedule (HTSUS) is the one for Food
Preparations in subheading 2106.90.50, HTSUS, and not subheading
1901.90.30, as a food preparation of heading 0401 to 0404, which
makes the decorations subject to the dairy quota.
ISSUE:
Classification of cake decorations under the HTSUS.
LAW AND ANALYSIS:
Although the glaze in question may have been classified
under the TSUS in a provision which was not subject to quota
restrictions, for the purposes of classification under the HTSUS,
there are new tariff provisions which Customs has to consider
in classifying the imported merchandise.
As to this product, it is claimed that the skim milk powder
is the ingredient in least amount and, therefore, while it may
impart flavor, it does not give the glaze its essential
character. Glazes and decorations in general, it is claimed,
contain sugar, vegetable fats and flavorings, so it is felt that
the small amount of milk powder present should not determine the
classification. However, it is our opinion that it is the milk
which makes the difference between this glaze and those which you
refer to, the ones which do not contain milk. Considering the
amount of milk present, (over 11 percent), it is believed that
the milk gives the product its sheen, flavor and to some extent
its texture. Thus, there is no reason to resort to GRI 3(c), in
regard to competing tariff provisions, but rather this is a food
preparation which, because it has over 11 percent milk powder, is
one based on goods of heading 0401 to 0404.
It is also suggested that the product should be classified
in heading 1704 as a sugar confectionary. However, the
Explanatory Notes point out that this heading, while including
pastes made of sugar, they are limited to those that contain
little or no fat. The product in issue is said to contain over
40 percent fat. - 3 -
HOLDING:
The white glaze described is classifiable as a food
preparation of goods of headings 0401 to 0404, in subheading
1901.90.30, dutiable at 17.5 percent ad valorem. It is also
subject to the quota restrictions of 9904.10.60, HTSUS.
Sincerely,
John Durant, Director