CLA-2 RR:CR:GC 961909ptl
Mr. Warren E. Coe
Amway Corporation
7575 E. Fulton Road
Dept.52-2A
Ada, Michigan 49355
RE.: Children’s liquid vitamin; HQ 082193, 083895, 088622, 952278, 960544.
Dear Mr. Coe:
This is in response to your letter of April 22, 1998, to the Customs National Commodity Specialist Division in New York requesting a ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a children’s liquid vitamin (SKU No. A4506). Your letter was forwarded to this office for response. We regret the delay.
FACTS:
The merchandise under consideration is described as a Children’s Liquid Vitamin which will be imported in 200 ml bottles. The liquid vitamin provides 12 essential vitamins and 3 minerals and is designed to supplement the nutritional needs of infants and small children. The main vitamins and minerals that are to be included in the vitamin supplement are identified as: Vitamin A, Vitamin D-3, Vitamin C, Vitamin E, Folate, Biotin, and Niacin.
ISSUE:
What is the classification of liquid vitamin supplement?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The liquid vitamin is intended to be consumed by infants and small children as a nutritional supplement. There is no claim or indication of usage that the product is intended to treat any specific condition or ailment. The proportions of vitamins and other nutrients reflect nutritional rather than therapeutic uses.
The HTSUS headings under consideration are as follows:
2106 Food preparations not elsewhere specified or included:
Other:
Other:
Other:
Other:
Other:
2106.90.99 Other:
2106.90.9998 Other.
2202 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009:
2202.90 Other.
2202.90.90 Other.
2202.90.9090 Other
3003 Medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of two or more constituents which have been mixed together for therapeutic or prophylactic uses, not put up in measured doses or in forms or packings for retail sale:
3003.90.0000 Other.
3004 Medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale:
3004.90 Other.
3004.90.90 Other.
3004.90.9090 Other.
Chapter 30, HTSUS, covers pharmaceutical products. Of special significance to the instant analysis is note 1(a) to chapter 30, which states: “This chapter does not cover: (a) Foods or beverages (such as dietetic, diabetic or fortified foods, food supplements, tonic beverages and mineral waters) (section IV)”. Chapter notes are part of the legal text of the HTSUS, and are to be considered statutory provisions of law for all purposes. Because the chapter notes are mandatory authority for classification, merchandise described by note 1(a) to chapter 30 is excluded from classification in that chapter.
The exclusion of the instant products from chapter 30 is reinforced by the ENs to both headings 30.03 and 30.04 which provide that:
Further this heading excludes food supplements containing vitamins or mineral salts which are put up for the purpose of maintaining health or well being but have no indication as to use for the prevention or treatment of any disease or ailment. These products which are usually in liquid form but may also be put up in powder or tablet form, are generally classified in heading 21.06 or Chapter 22.
The only heading in chapter 22 which merits consideration in the instant analysis is heading 2202, HTSUS. Because the product is not “[w]aters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored,” to be classified in this heading, it must fit the description of an “other nonalcoholic beverage.”
Other than the definition in Note 3, Chapter 22, HTSUS (which defined nonalcoholic beverage in terms of the maximum allowable alcohol content), the terminology "nonalcoholic beverages" is not specifically defined in the HTSUS. Guidance concerning what constitutes a "nonalcoholic beverage" for purposes of classification under heading 2202, however, can be found in the ENs to this heading:
This heading covers non alcoholic beverages ... not classified under other headings, particularly heading 20.09 or 22.01.
(A) Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured.
This group includes, inter alia:
(1) Sweetened or flavoured mineral waters (natural or artificial).
(2) Beverages such as lemonade, orangeade, cola, consisting of ordinary drinking water, sweetened or not, flavoured with fruit juices or essences, or compound extracts, to which citric or tartaric acid are sometimes added. They are often aerated with carbon dioxide gas, and are generally presented in bottles or other airtight containers.
(B) Other non-alcoholic beverages, not including fruit or vegetable juices of heading 20.09.
This group includes, inter alia:
(1) Tamarind nectar rendered ready for consumption as a beverage by the addition of water and sugar and straining.
(2) Certain other beverages ready for consumption, such as those with a basis of milk and cocoa.
The term "beverage" has a broad meaning in general English language usage. See Webster's Ninth New Collegiate Dictionary 146 (1989) (a beverage is "a drinkable liquid"); Webster's Third New International Dictionary 210 (1986) (a beverage is a "liquid for drinking; esp: such liquid other than water (as tea, milk, fruit juice, beer) usu. prepared (as by flavoring, heating, admixing) before being consumed"); Webster's II New Riverside University Dictionary 169 (1984) (a beverage is "[a] liquid for drinking, usu. excluding water"); The Random House Dictionary of the English Language 143 (1983) (a beverage is "a drink of any kind other than water, as tea, coffee, beer, milk, etc."). It is clear, however, that from a review of the HTSUS and the ENs thereto the terminology "nonalcoholic beverages" for purposes of classification of merchandise under heading 2202 is limited and not intended to include all drinkable liquids not having a certain alcoholic content. First, certain other drinkable liquids that could qualify as "nonalcoholic beverages" in general English language usage are specifically provided for in the terms of other headings: plain and unadulterated water in heading 2201 and fruit juices and vegetable juices in heading 2009. Second, the article description for heading 2202 has non exhaustive language (i.e., "waters...containing added..., and other nonalcoholic beverages, not including..." rather than language such as "and all other beverages"). Third, the ENs to heading 2202, as indicated above, implicitly recognize a limitation as to the types of "nonalcoholic beverages" that are to be classified under heading 2202 (i.e., "[c]ertain other beverages ready for consumption..."). Fourth, and of special significance to this classification analysis, the ENs to headings 3003 and 3004 both explicitly state that there are certain drinkable liquids which may or may not contain alcohol that may be classified in other than chapter 22 (i.e., "food supplements ... in liquid form ... are generally classified in heading 21.06 or Chapter 22").
In light of the above, particularly as concerns the article description for heading 2202 and the ENs to this heading and the ENs to headings 3003 and 3004, it is apparent that heading 2202 does not contemplate and encompass as "other nonalcoholic beverages" products like the instant product. Liquid vitamin products intended to supplement one's dietary or nutritional needs are not properly classified under heading 2202.
The final chapter in which the product may be potentially classified is chapter 21. This chapter covers miscellaneous edible preparations. As the product is a food preparation and has not been found to be specified or included elsewhere in the HTSUS, a heading in chapter 21 providing for such a product would need to be given consideration as a potential heading for classification of the product. The only heading in chapter 21 that appears to provide for the product is heading 2106 which provides for "food preparations not elsewhere specified or included." Guidance concerning the coverage of heading 2106 can be found in the ENs to this heading:
(16) Preparations, often referred to as food supplements, based on extracts from plants, fruit concentrates, honey, fructose, etc. and containing added vitamins and sometimes minute quantities of iron compounds. These preparations are often put up in packagings with indications that they maintain general health or well being. Similar preparations, however, intended for the prevention or treatment of diseases or ailments are excluded (heading 30.03 or 30.04).
In fact, this EN is consistent with the previously discussed ENs to headings 3003 and 3004, wherein heading 2106 is specifically identified as a potential heading for the classification of vitamin or mineral salt fortified, liquid foods. In the instant case, the product clearly fits the above description. We conclude that the instant product is properly classified under heading 2106, HTSUS.
It should be noted that in HQ 082193 dated February 2, 1989; 083895 dated June 21, 1989; 088622 dated May 24, 1991; 952278 dated January 26, 1993 and 960544 dated April 10, 1998, products substantially similar to the instant product (i.e., nutritional supplements or food products capable of being ingested or administered orally or by a feeding tube) were found to be properly classified under heading 2106, HTSUS.
HOLDING:
Children’s liquid vitamin (SKU No. A4506) is classified in subheading 2106.90.9998, HTSUS, which provides for food preparations not elsewhere specified or included, other, other, other, other, other, other, other, other.
Sincerely,
John Durant, Director
Commercial Rulings Division