HQ 951907
September 1,1992
CLA-2 CO:R:C:F 951907 JGH
Timothy C. Stanceu, Esq.
Hogan & Hartson
555 Thirteenth St. N.W.
Washington, D.C. 20004-1109
RE: Classification of a chocolate-flavored malt product from
Jamaica
Dear Mr. Stanceu:
Your letter of April 28, 1992, concerns the tariff
classification of a chocolate-flavored malt product of Jamaica,
under the Harmonized Tariff Schedule of the United States
(HTSUS).
FACTS:
The chocolate-flavored malt drink, is a granular product,
put up in 14.1-ounce retail containers, to be mixed with hot or
cold milk to make a beverage. In composition, it is said to
contain over 30 percent malt extract, about 20 percent non-fat
milk solids, over 10 percent cocoa powder, with lesser amounts of
sweeteners and other ingredients.
ISSUE:
Classification of a chocolate-flavored malt product with over
10 percent by weight of cocoa powder.
LAW AND ANALYSIS:
In behalf of the importer it is urged that the malt product
can not be classified under heading 1901, HTSUS, since it has
over 10 percent cocoa powder, so that it is not a food
preparation of headings 0401 to 0404, described in subheading - 2 -
1901.90.30 and, in any event, it lacks the essential character of
an article of milk or cream. In addition, classification as a
preparation of malt in subheading 1901.90.9060, HTSUS, is not
deemed appropriate, since the essential character was felt to be
the cocoa powder not the malt. Accordingly, it is urged that the
product be classified under subheading 1806.90.0078, HTSUS, as a
food preparation containing cocoa.
Note 1 to Chapter 18, HTSUS, states that the chapter does
not cover preparations of various headings of food stuffs in
1901. As for preparations of malt extract, the Explanatory Notes
indicate that this heading relates, in part, to food preparations
of malt extract, not containing cocoa powder or containing cocoa
powder in a proportion by weight of less than 50 percent.
Examples of the preparations covered in the provision, include
those which are a mixture of egg powder, milk powder, malt
extract and cocoa powder.
Thus, as a matter of relative specificity, based on the
composition of the product, heading 1901 is more specific than
chapter 1806. The principle ingredients are the malt extract and
milk, with the malt extract far outweighing the milk. As pointed
out, the explanatory notes define malt preparations as
preparations including egg, milk and cocoa powders. Therefore,
the import, even though chocolate flavored, is a product whose
essential character is imparted by the malt extract.
HOLDING:
The product with the formulation set out above is
classifiable as a food preparation of malt extract containing
cocoa powder in a proportion by weight or less than 50 percent,
not elsewhere specified or included, in subheading 1901.90.9060,
HTSUS. The rate of duty in the General column is 10 percent ad
valorem. However, products classifiable in this subheading
produced in a beneficiary country of the CBERA (which includes
Jamaica) would be entitled to duty free status, if they meet all
of the requirements.
Sincerely,
John Durant, Director