CLA-2 CO:R:C:F 956890 ALS
TARIFF NO. 2106.90.6999
Mr. John M. Mayhall, Jr.
President
Omega Pharmaceutical, Inc.
1000 Urban Center Parkway
Birmingham, AL 35243
RE: Modification of New York Ruling Letters (NYRL) 848070 and 848458, Concerning Food Supplements Alternately Known as PCM-4,
Polymega and Polyerga II
Dear Mr. Mayhall:
In NYRL 848070, issued December 21, 1989, you were advised
that a food supplement known as Polyerga II was classified in
subheading 3823.90.5050, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). In NYRL 848458, issued January 22,
1990, you were advised that a food supplement known as Polymega
was classified in subheading 3823.90.5050, HTSUSA. We have
reviewed those rulings and NYRL 864642, issued July 12, 1991, in
which you were advised that a food supplement known as PCM-4 was
classified in 2106.90.6097 or 2106.90.6099, HTSUSA, depending on
whether it was in tablet or capsule form. (The current HTSUSA
subheading number is 2106.90.6999, HTSUSA). We have concluded
that the correct classification for all of these food supplements
is as follows.
FACTS:
These food supplements are in tablet and capsule form. The
primary ingredient in the tablets are polypeptides derived from
bovine spleen extract. Other ingredients include sucrose, talc,
and corn starch. The main ingredients in the capsules are
lactose, gelatin, vegetable oils and polypeptides derived from - 2 -
bovine spleen extract. The products are put up in retail
packages containing 15 capsules or 90 tablets. The information
and documents submitted for these products indicate that the
composition and use of the food supplements is virtually
identical. The "flow chart" describing the manufacturing process
is essentially the same for all the products and the ingredient
listings are interchangeable.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, (Pub. L. 103-182, 107 Stat. 2057, 2186
(1993)), (hereinafter section 625), notice of the proposed
modification of NYRL 848070 and NYRL 848458 was published on
October 19, 1994, in the Customs Bulletin, Volume 28, Number 42.
ISSUE:
Are the products classifiable as food supplements in
subheading 2106.90.6999, HTSUSA, or in subheading 3823.90.5050,
HTSUSA, as a chemical mixture?
LAW AND ANALYSIS:
Classification of merchandise under the 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.
In considering the appropriate classification of the food
supplement tablets and capsules we note that the ingredients of
all the tablets and all the capsules are essentially the same
regardless of the name applied to the product. The active
ingredients of each tablet, regardless of name, are the same.
Similarly, the active ingredients of each capsule, regardless of
name, are the same. The quantity of each ingredient is
essentially the same in each tablet and, likewise, the quantity
of each ingredient is essentially the same in each capsule.
All the products are finished and ready to consume. They
are sold in health food stores as food or nutritional
supplements. No claims regarding their therapeutic or
prophylactic properties are made by the importer.
- 3 -
The product, sold as a food supplement under the PCM-4
label, has for certain purposes been designated OP-1 by the
importer.
Since the product has the ingredients of a food supplement,
is marketed as a food supplement, and there are no claims of
therapeutic or prophylactic properties, we have concluded that
these products should be considered food supplements. We
consulted the Explanatory Notes to the Harmonized System (EN)
which represents the opinion of the international classification
experts. EN 21.06(B)(16) provides that "Preparations, often
referred to as food supplements,..." are included in this
heading.
HOLDING:
Food supplements in tablet and capsule form and known as
Polyerga II, Polymega and PCM-4 are classifiable in subheading
2106.90.6999, HTSUSA, and are subject to a general rate of duty
of 10 percent ad valorem.
NYRL 848458 and NYRL 848070 are hereby modified.
In accordance with section 625, this ruling will become
effective 60 days from its publication in the CUSTOMS BULLETIN.
Publication of rulings or decisions pursuant to section 625 does
not constitute a change of practice or position in accordance
with section 177.10(c)(1), Customs Regulations (19 CFR
177.10(c)(1)).
Sincerely
John Durant, Director
Commercial Rulings Division