CLA-2 RR:TC:FC 958870K
Port Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island, California 90731
RE: Application For Further Review of Protest No.2720-95-101409;
Ginkgo Biloba Powder and
Hawthorn Berries
Dear Port Director:
The following is our response to the referral by your
office, dated February 5, 1996, of the request for further review
of the above-referenced protest.
FACTS:
The consumption entry covering the imported merchandise was
liquidated on October 20, 1995, under the provision for other
vegetable saps and extracts, substances having anesthetic,
prophylactic or therapeutic properties, in subheading
1302.19.4040, Harmonized Tariff Schedule of the Unites States
(HTSUS) (1995), with duty at the general rate of 1.4 percent ad
valorem. A timely protest under 19 U.S.C. 1514 was received on
December 18, 1995. The protestant requested reliquidation of
the entry under the provision for other vegetable saps and
extracts (not having anesthetic, prophylactic or therapeutic
properties), in subheading 1302.19.9040, HTSUS, with a
free rate of duty. A further submission was submitted dated July
22, 1996.
The merchandise consists of extracts of Hawthorne Berries
and Ginkgo Biloba leaves.
.
ISSUE:
The issue is whether the extracts have therapeutic
properties.
LAW AND ANALYSIS:
The protestant opines that at the time of importation of the
extracts of Ginkgo Biloba leaves and Hawthorne Berries, the
protestant, as the importer, does not make any therapeutic
claims. Claims may be made at the retail level but not at the
time of importation and there is no U.S. Government documentation
to substantiate the technical information obtained by Customs
which indicates that the extracts have therapeutic properties.
Accordingly, the protestant concludes that the extracts should be
classified in subheading 1302.19.9040, HTSUS, as other vegetable
extracts (not having therapeutic properties).
The Merck Index, An Encyclopedia of Chemicals, Drugs, And
Biologicals (1989), at page 402, lists a therapeutic category for
Hawthorn Berries, flowers, and leaves as "Cardiotonic, coronary
vasodilator" and at page 693, it lists a therapeutic category for
Ginkgo Biloba Extracts as "In cerebral and peripheral circulatory
disturbances". It is immaterial whether such claims are made or
not made by the importer or others. Subheading 1302.19.4040,
HTSUS, provides for other vegetable saps and extracts, substances
having therapeutic properties, and there is sufficient technical
information stating that such extracts have therapeutic
properties.
HOLDING:
Vegetable extracts of Ginkgo Biloba leaves and of Hawthorne
Berries are classified in subheading 1302.19.4040, HTSUS, as
other vegetable extracts, substances having therapeutic
properties, with a 1995 general rate of duty of 1.4 percent ad
valorem.
You are directed to deny the protest in full.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division