CLA-2 RR:CR:GC RTR
TARIFF NO: 2105.00.25; 2105.00.30; 2105.00.40
Scott D. Johnson,
Operations Manager
GHY USA, Inc.
P.O. Box 155
Pembina, ND 58271
Re: Frozen Ice Cream Cakes
Dear Mr. Johnson:
This is in response to your letter, dated August 24, 1998, referring to your letter to the Customs National Commodity Specialists Division, New York, dated July 28,1998, on behalf of Sargent Frozen Desserts, Ltd., regarding the tariff classification of frozen ice cream cakes under the Harmonized Tariff Schedule of the United States (HTSUS). We regret the delay.
FACTS:
The merchandise is described as follows: “Ice cream cakes. Take one home today. Your cake consists of luscious layers of vanilla ice cream with a center of thick, creamy fudge and fantasy chocolate cookie crunch...”
In a supplemental submission, dated January 26, 1999, you indicated that the merchandise has three layers, the first layer being cake, the second layer being ice cream (the ice cream content varies, sometimes including cherry pie filling, chocolate chips or cookie crumbs), and the third (top layer) being another layer of cake. You also indicated that the merchandise is imported in a frozen state and is displayed in frozen food cases at supermarkets. In order that the cake will thaw for ease of serving, your client’s instructions direct the consumer to remove the merchandise from the freezer and place it in the refrigerator prior to serving (based on the following information, we assume that the ice cream remains in a frozen state). Finally, during a telephonic discussion of January 27, 1999, with a member of my staff, you indicated that “leftovers” (partially consumed merchandise) cannot be stored in the refrigerator, but must be returned to the freezer. The ice cream within leftovers not stored in the freezer melts into a liquid or semi-liquid state.
ISSUE:
Whether frozen ice cream cakes are “frozen cakes” of heading 1905, HTSUS, or “ice cream novelties” of heading 2105, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6. Pursuant to GRI 3(b), goods which are prima facie classified in two or more headings, and are equally specific in relation to one another, shall be classified as if they consisted of the material or component which gives them their essential character.
The provisions under consideration are as follows:
1905Bread, pastries, cakes, biscuits, and other bakers’ wares, whether or not containing cocoa; communion wafers, empty capsules of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products:
1905.90Other:
1905.90.10Bread, pastry, cakes, biscuits and similar baked products, and puddings, whether or not containing chocolate, fruit, nuts or confectionary
Frozen:
1905.90.1041Pastries, cakes and similar sweet baked products; puddings
* * * *
2105.00Ice cream and other edible ice, whether or not containing cocoa:
Other:
Dairy products described in additional U.S. note 1 to chapter 4:
2105.00.25Described in general note 15 of the tariff schedule and entered pursuant to its provisions
2105.00.30Described in general note 10 to chapter 4 and entered pursuant to its provisions
2105.00.40Other
* * * *
In the letter dated July 28, 1998, you indicated that local Customs had previously advised you that the merchandise was subject to our decision in HQ 088914, dated May 9, 1991. In HQ 088914, we ruled that coconut-flavored ice cream bars were classified in former subheading 2105.00.0015, HTSUS (now subheadings 2105.00.25; 2105.00.30; 2105.00.40, HTSUS), which provides for “ice cream and other edible ice, whether or not containing cocoa: Other.” You contend that this ruling is not applicable because ice cream is not the central component of the merchandise. Rather, the merchandise is “cake a la mode, with ice cream used as a flavor enhancer,” and is, therefore, a “frozen cake” of subheading 1905.90.1041, HTSUS. In support, you have provided a breakdown of the ice cream content, as a percentage of the total merchandise (see below), and, to distinguish the merchandise from the coconut-flavored ice cream bars of HQ 088914, you have indicated that the ice cream cakes are eaten with a fork, rather than a spoon. Also, whereas these cakes are large enough to serve multiple portions, the coconut-flavored ice cream bars only serve a single portion.
SARGENT FROZEN ICE CREAM CAKES
Item
Percentage of Ice Cream
in Total Product
6" Vanilla or chocolate
28.14%
8" Chocolate / vanilla / strawberry logs
.14%
Arctic pizza gummy / peanut brittle
.00%
Chocolate cake / vanilla IC
.93%
Vanilla cake / vanilla IC
.93%
1/4 Slab chocolate
.23%
1/4 Slab vanilla
.23%
9" Vanilla / chocolate
.10%
Oreo cake
.98%
Black forest cake
32.98%
Neopolitan
.93%
Vanilla cake / vanilla IC
.93%
Chocolate cake / chocolate IC
.93%
Average Percent of Ice Cream in Cakes
.42%
HEADING 1905, HTSUS
We disagree with your contention that the merchandise is classified in subheading 1905.90.1041, HTSUS. The facts that the cakes are large enough to serve numerous portions, and are intended to be eaten with a fork are not relevant. You have not cited any Customs ruling which classified products containing ice cream in heading 1905, HTSUS. We draw your attention to NY A89419, dated December 4, 1996, in which we classified frozen cakes and tarts containing layers of cake or pastry filled or topped with fruit mousse or sweet creams (heading 1905, HTSUS), catalanes (a vanilla-flavored mousse made from skim milk, vegetable fat, egg yolks, flavoring, gelling and acidifying agents, and coloring put up in a ceramic baking dish) (heading 1901, HTSUS), and profiteroles (puff pastries filled with ice cream) (heading 2105, HTSUS). All of the articles were imported frozen and, with the exception of the profiteroles, were edible only after thawing. After serving, any remaining cake was to be refrigerated, but not placed in the freezer. The fact that the profiteroles, which contained ice cream, had to be eaten in a frozen state distinguished them from the cakes and tarts. This was a major factor in our decision to classify the profiteroles independently in heading 2105, HTSUS. Therefore, part of the holding in NY A89419 is that cakes intended to be consumed in a frozen state are classified within heading 2105, HTSUS.
Like the profiteroles, the subject Sargent frozen cakes contain ice cream and are eaten in a frozen state. For this reason, they are not classified in heading 1905, HTSUS.
HEADING 2105, HTSUS
In HQ 088914, dated May 9, 1991, we determined that both ice cream and ice cream novelties were goods of heading 2105, HTSUS. We described “ice cream novelties” as “frozen food preparations consisting essentially of ice cream in combination with other food components to make a variety of specialty items, such as, chocolate covered ice cream bars, ice cream sandwich [sic], ice cream cake, coated ice cream cones, e.g. ‘Drumsticks,’ and similar frozen confections” (Emphasis added). We further found that goods of heading 2105, HTSUS, revert to a liquid or semi-liquid state at an ambient temperature of about zero degrees Celsius, and that articles of heading 2105, HTSUS, are eaten in a frozen state. Finally, we expressly dismissed the notion that products of heading 2105, HTSUS, must contain fifty percent or more of ice cream. We classified the ice cream novelties in the predecessor to the “other [than ice cream]” provision in heading 2105, HTSUS, in subheading 2105.00.0015, HTSUS.
The Sargent goods are frozen preparations containing approximately 1/3 ice cream and 2/3 cake and other ingredients which must be imported, stored and eaten, with the ice cream in a frozen state. If allowed to stand for a prolonged period at an ambient temperature of zero degrees Celsius or higher, or even if merely refrigerated, the ice cream will turn to liquid or semi-liquid, rendering the entire confection inedible (i.e., the goods are intended to be eaten with the ice cream in a frozen state). They are “ice cream cakes,” which are classified in heading 2105, HTSUS.
HOLDING:
The ice cream cakes are classified in subheading 2105.00.25, 2105.00.30, or 2105.00.40, HTSUS, as “(i)ce cream and other edible ice, whether or not containing cocoa:... (o)ther: (d)airy products described in additional U.S. note 1 to chapter 4: [d]escribed in general note 15 of the tariff schedule and entered pursuant to its provisions[;] [d]escribed in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions[;] or [o]ther....”
Sincerely,
John Durant, Director
Commercial Rulings Division