CLA-2 RR:CR:GC 962398ptl
Port Director
U.S. Customs Service
40 South Gay Street
Baltimore, MD 21202
RE: Protest 1303-98-100142; Ginkgo biloba extract; HQ 953679, 960607, 085492, 962323.
Dear Port Director:
The following is our decision on Protest 1303-98-100142, against your classification of a product described as “Ginkgo biloba extract” under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The merchandise under protest, variously described as “Gingko Biloba Vegetable Extract” and “Gingko Biloba Extract” is said to contain “an extract of the leaves of the Ginkgo biloba tree” which has been put up in the form of 40 or 60 mg tablets. The protestant states that no additional extracts, vitamins, minerals or other nutritional ingredients have been mixed with the Ginkgo biloba extract. Protestant further states that “[T]he fillers, binders and coatings included in the tablets are incidental and are used only to add substantial form and to allow the extract to be formed into tablets.”
The entries covering the imported merchandise were liquidated on May 1, 1998 and June 19,1998, under the provision for food preparations, not elsewhere specified or included, …, other, in subheading 2106.90.9998, HTSUS. A timely protest under
19 U.S.C. 1514 was received on July 30, 1998. The protestant requests reliquidation of the entry under the provision for Vegetable saps and extracts, …, other,…, other, in subheading 1302.19.4040, HTSUS. Should that subheading be rejected, the protestant requests classification in subheading 3004.40.0040, HTSUS, which provides for medicaments … consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale, …, other, …, other.
ISSUE:
What is the classification of Ginkgo biloba extract in tablet form?
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 headings under consideration are as follows:
1302 Vegetable saps and extracts; pectic substances, pectinates and pectates; agar-agar and other mucilages and thickeners, whether or not
modified, derived from vegetable products:
Vegetable saps and extracts:
1302.19 Other:
Ginseng; substances having anesthetic, prophylactic or therapeutic properties:
* * *
1302.19.40 Other.
1302.19.4040 Other.
2106 Food preparations not elsewhere specified or
included:
* * *
Other:
Other :
Other:
Other:
Other:
Other:
2106.90.9998 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:
* * *
3004.40.00 Containing alkaloids or derivatives thereof
but not containing hormones, other products
of heading 2937 or antibiotics.
* * *
Other:
* * *
3004.40.0040 Other.
Protestant initially contends that the merchandise should be classified in heading 1302, HTSUS, based upon the language of the heading which reads: “Vegetable saps and extracts … whether or not modified, … .” In support of this position, protestant cites several Customs rulings in which extracts of vegetable matter have been classified in that heading. However, the rulings cited by protestant (NY 818882, February 23, 1996; NY B80155, December 17, 1996; NY A83392, May 13, 1996; and HQ 958870, August 8, 1996) all covered extracts which were being imported in bulk form and which had not been subjected to further processing which changed the character of the articles. The article under protest was not imported in its raw condition, but has been tabletized.
Customs agrees with the protestant that extracts need not be in their raw or natural state to be classified in heading 1302. The 1302 ENs state that “Inert substances are sometimes added to certain extracts so that they can be more easily reduced to powder.” However, the ENs further state that “The vegetable saps and extracts of this heading are generally raw materials for various manufactured products. They are excluded from the heading when, because of the addition of other substances, they have the character of food preparations, medicaments, etc.” Therefore, it is not the addition of substances to extracts, but, rather the condition of the final product which is determinative of classification.
In HQ 960607, dated July 31, 1998, in which encapsulated ginseng extract was classified in heading 2106, HTSUS, Customs stated: “In HQ 953679, dated February 3, 1994, Customs noted that ‘[A]lthough the ENs to heading 2106 mention that many food supplements are often based on plant extracts containing added vitamins and ‘sometimes minute quantities of iron compounds’, such products do not have to contain vitamins and/or minerals to be considered food supplements; the very nature of these products - herb extracts mixed with other substances, even without the promotional literature, are considered food supplements. Essentially chapters 12 and 13 cover raw vegetable materials; products to be further processed. Here, in contrast, the extracts are encapsulated, usually with an added excipients such as natural cellulose, roots, or berries; and, what is apparent from the promotional literature, the intent is to have finished food products which are marketed as food supplements. Such products are classifiable in heading 2106.’ In HQ 085492, dated October 20, 1989, Customs ruled that the powdered root of Brazilian ginseng which was free of additives and imported in gelatin capsule form for use as a food supplement was classified in heading 2106, HTSUS.” The subject Ginkgo biloba extract is a plant extract that has been tabletized as a food product and is not a raw material for further processing. Accordingly, it is not classified in heading 1302, HTSUS.
With regard to protestant’s alternate classification of heading 3004, HTSUS, Customs notes that in HQ 962323, dated February 3, 2000, Customs classified Ginkgo biloba herbal supplements in heading 2106, HTSUS. As part of that ruling, Customs rejected counsel’s contention that the product was a medicament of heading 3004, HTSUS, stating “Because the product contains parts of plants mixed with other substances and is used to promote general health and well-being, in accordance with the language of EN 30.04, it is not a medicament of heading 3004, HTSUS, but rather a food supplement of heading 2106, HTSUS.” Protestant has provided no evidence that the article being classified is intended to be used for therapeutic or prophylactic purposes, a requirement for classification in heading 3004, HTSUS. Accordingly, we cannot classify the article in heading 3004.
For the above reasons, the Ginkgo biloba extract is properly classified in subheading 2106.90.9998, HTSUS, as a food preparation not elsewhere specified or included, …, other.
HOLDING:
Ginkgo biloba extract in tablet form 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.
The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division