CLA-2 CO:R:C:F 955752 K
Kenneth S. Horowitz, Esq.
Gibney, Anthony, & Flaherty
Attorneys At Law
665 Fifth Ave.
New York, New York 10022-5305
RE: Ecuadorian Tropical Products Inc., And Classification of
"Cerelac"
Dear Sir:
Your letters of September 15, and October 6, 1993, and March
1, 1994, concern your request for a ruling as to the
classification of a product from Educator known as "Nestle
Cerelac". A sample was submitted. Our decision follows.
FACTS:
The product known as "Nestle Cerelac" (Cerelac), is a dry,
pale yellow, powder-like substance, stated to be composed of 54
percent wheat flour, 23 percent sucrose, 21 percent milk, 1
percent salt, and 1 percent lisin. The sample of Cerelac,
contained in a metal canister containing 500 grams, is packed for
retail sale. The values of the ingredients were not stated. The
labelling on the sample is in Spanish and an English translation
was not provided.
The labelling describes the product as a nutritious food,
easily digestible, delicious taste, that is composed of
pasteurized milk, wheat flour, vitamins, minerals, lisin and
slightly flavored with vanilla. The product is described as a
milky cereal for infants and children starting at six months of
age and as a breakfast, a snack, a light meal or as a cold shake
by adolescents and adults. The labelling contains a caution that
the product should not be the only source of nutrition for a
child.
No cooking is required. The product is prepared by merely
adding a liquid [water] to the proper amount of Cerelac to make a
cold or hot cereal or drink. The labelling indicates that since
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Cerelac already contains milk, it is not necessary to add
anyunless a higher nutritional value is desired for adolescents
and adults. The directions contain the amounts of Cerelac and
water to prepare a milky cereal for infants and children starting
at the age of six months. Fruits may be added to the cereal.
The directions also contain the amounts of Cerelac, water and/or
milk to prepare a breakfast cereal or cold shake for adolescents
and adults. The labelling depicts an infant (or young child)
wearing a bib and a young boy eating a bowl of cereal and a
mother with a drink of Cerelac in her hand.
ISSUE:
The issue is whether the product, Cerelac, as described,
above, is a food preparation of headings 0401 to 0404, not
elsewhere specified or included, a preparation for infant use,
put up for retail sale, containing over 10 percent by weight of
milk solids, classified in subheading 1901.10.1000, Harmonized
Tariff Schedule of the United States (HTSUS).
LAW AND ANALYSIS:
Essentially, counsel's position is that Cerelac is a food
for adults, adolescents, and children over 4 months (the
labelling prescribes directions for infants starting at age 6
months), that there is no evidence that the product is
principally used in the United States for infants, and,
therefore, the product cannot be classified as a preparation for
infant use. Accordingly, counsel concludes that the product is
classifiable in accordance with its essential character and since
the one ingredient which appears in a percentage which exceeds
all other ingredients combined is the flour, the product is
classifiable in the basket provision of subheading 1901.90.9060,
HTSUS, as other food preparations of flour, put up for retail
sale, and not subject to the milk quotas of heading 9904.10.60,
HTSUS.
Rule 3(b), General Rules of Interpretation, HTSUS, states
that "mixtures, composite goods consisting of different
materials...[in this case, milk and flour] which cannot be
classified by reference to [rule] 3(a), shall be classified as if
they consisted of the material...which gives them their essential
character, insofar as this criterion is applicable." The
percentages and values of the mixtures may be elements to be
considered for determining essential character but those elements
are not controlling, and are not found in Rule 3(b). The
percentages of content and values of mixtures alone do not
resolve essential character.
The values of ingredients for Cerelac were not stated.
Cerelac contains a significant amount, 21 percent, of milk
solids. The directions for preparing the product requires the
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addition of water which serves to reconstitute the milk. The
labelling of the product refers to it as "milky wheat". Thus,
the labelling indicates the importance of the milk content. The
Encyclopedia Americana (1980), Volume 19 at page 113, states that
"milk is considered nature's most perfect food because it
contains nearly all the substances essential for nutrition." We
are aware that milk is one of the basic food products for infants
and that Cerelac provides this necessary food product for infants
with the addition of wheat flour. We conclude that the milk
solids constitutes the essential character of Cerelac.
Subheading 1901.10.1000, HTSUS, provides for food
preparations of goods of headings 0401 to 0404...not elsewhere
specified or included, that are preparations for infant use, put
up for retail sale, containing over 10 percent by weight of milk
solids. The subheading is a use provision. Additional U.S.
Rules of Interpretation, 1(a), HTSUS, states that
in the absence of special language or context which
otherwise requires--
a tariff classification controlled by use (other than
actual use) is to be determine in accordance with the
use in the United States at, or immediately prior to,
the date of importation, of goods of the class or kind
to which the imported goods belong, and the controlling
use is the principal use.
No technical documentation has been submitted concerning the
principal use of the product in the United States. Therefore,
based on the facts as developed above, we conclude that the
principal use of the product is as a food preparation for infants
and classified in subheading 1901.10.1000, HTSUS, notwithstanding
that the product also may be for use by adolescents and adults.
HOLDING:
The product known as Cerelac, as described above, is
classified in subheading 1901.10.1000, HTSUS, as a food
preparation for infant use, put up for retail sale, containing
over 10 percent by weight of milk solids, with duty at the
general rate of 17.5 percent ad valorem, and subject to quota
under heading 9904.10.60, HTSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division