HQ 953679
February 3 1994
CLA-2 CO:R:C:F 953679 JGH
District Director of Customs
P.O. Box 789
300 Second Avenue South
Great Falls, Montana 59405
Re: Decision on Application for Further Review of Protest No.
3303-92-100044, on the Classification of Certain Plant
Extracts and Parts.
Dear Sir:
The imported extracts and powders from Italy were imported
by Solaray, Inc., of Ogden, Utah, in July 1992.
FACTS:
The merchandise consists of a variety of plant extracts and
encapsulated plant parts put up for retail sale as food
supplements. Package descriptions of the various products were
submitted:
Bilberry Extract, described as an herb extract in capsule
form, was said to contain 15 percent anthocyanosides in a base of
natural cellulose.
Hawthorn Extract, described as an herb extract in capsule
form, said to contain 100 mg. of hawthorn extract and 1.8 mg.
Vitexin-2-rhamnoside in a base of wild Hawthorn berries.
Ginkgo Biloba Extract, described as an herb extract,
consisting of a capsule of 24 percent ginkgo flavoglycosides in
vegetable cellulose.
Ginseng Root was said to be capsules of powdered ginseng
root in vegetable cellulose.
Echinacea Angustifolia Extract, described as an herbal
extract, a capsule of echinacosides angustifolia in a vegetable
cellulose. - 2 -
Madagascar Centella Asiatica, described as a capsule of
powdered form of the herb with 10 percent triterpenes in natural
cellulose.
Tumeric Extract, described as being a capsule of 95 percent
Curcumin.
Valerian Root Extract, described as a capsule of valeric
acids in a base of wild East Indian Valerian root.
St. John's Wort Extract, described as capsules of St. John's
Wort extract containing 14 percent hypericin in a base of
hawthorn berries.
Pygeum Africanum Extract, described as a capsule of the
powdered bark extract.
Milk Thistle Extract, described as a capsule of silymarin in
a base of natural cellulose.
ISSUE:
Whether the ginseng root capsule is classifiable as ginseng
root in subheading 1211.20.00, HTSUS, and the other extracts as
vegetable extracts in subheading 1302.19.40, HTSUS; or whether
all of the products should be classifiable as food preparations
in subheading 2106.90.60, HTSUS.
LAW AND ANALYSIS:
In behalf of the importer it is contended that the products
should be classified as raw materials; that they are only
considered as food products when they contain other additives
such as vitamins or iron compounds.
The Explanatory Notes (ENs) to heading 1211, HTSUS, state
that the vegetable products covered are in the form of fresh,
dried, whole, cut, crushed, ground, or powdered. The ENs to
heading 1302 state that the materials classified in that heading
are generally raw materials for various manufactured products;
products are excluded from that heading when, because of the
addition of other substances, they have the character of food
preparations.
The ENs go on to state in regard to heading 1211 that the
vegetable products covered in the heading are excluded if they
are mixed with other substances. Here the ginseng roots and
centella asiatica have been mixed with vegetable cellulose. They
are not to be used as raw materials in the manufacture of other
products but are put up as food supplements. - 3 -
Although the ENs to heading 2106 mention that many food
supplements are often based on plant extracts containing added
vitamins and "sometimes minute quantities of iron compounds",
such products do not have to contain vitamins and/or minerals to
be considered as food supplements; the very nature of these
products - herb extracts mixed with other substances, even
without the promotional literature, are considered food
supplements. Essentially chapters 12 and 13 cover raw vegetable
materials; products to be further processed. Here, in contrast,
the extracts are encapsulated, usually with an added excipients
such as natural cellulose, roots, or berries; and, what is
apparent from the promotional literature, the intent is to have
finished food products which are marketed as food supplements.
Such products are classifiable in heading 2106.
HOLDING:
The encapsulated herb and plant extracts described above are
classifiable as other food preparations not elsewhere specified
or included in subheading 2106.90.60, HTSUS.
You are directed to deny the protest in full. A copy of
this decision should be furnished the protestant with the Form 19
Notice of Action.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days form the date of this letter.
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision. Sixty
days from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to
Customs personnel via the Customs Rulings Module in ACS and the
public and the public via the Diskette Subscription Service,
Lexis, Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director