CLA-2: RR:CR:GC 966027 DBS
Mr. Doron Dekel
8447 De Soto Ave., #5
Canoga Park, CA 91304
RE: Smokeless inhaler; NY 875303 revoked
Dear Mr. Dekel:
On June 17, 1992, the Customs National Commodity Specialist Division, New York, issued to you NY Ruling Letter 875303, which classified “Flowers Menthol,” a smokeless inhaler, under the Harmonized Tariff Schedule of the United States (HTSUS), as other medicaments, put up in measured doses or in forms or packings for retail sale, of subheading 3004.90.60, HTSUS (now 3004.90.91, HTSUS). We have reconsidered the classification of this article and now believe NY 875303 is incorrect.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), 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), notice of the proposed revocation of the above identified ruling was published on December 4, 2002, in the Customs Bulletin, Volume 36, Number 49. No comments were received in response to the notice.
FACTS:
The facts as stated in NY 875303 are as follows:
"Flowers Menthol" are smokeless, substitute cigarettes, constructed from plastic and cotton, which utilize menthol crystals as a mild flavoring agent.
These "cigarettes", which are never lit, are used as a deterrent to smoking by helping to curb the urge to smoke regular cigarettes. One would simply substitute a "Flowers Menthol" "cigarette" for a regular cigarette when the urge to smoke arises. Each substitute cigarette is individually packaged in a blister pack.
ISSUE:
Whether smokeless inhalers are classifiable as medicaments of heading 3004, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that 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 understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
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 (including those in the form of transdermal administration systems) or in forms or packing for retail sale:
3004.90 Other:
3004.90.91 Other
* * *
3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included.
3824.90 Other:
Other:
Other:
Other:
3824.90.91 Other
GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note.
In the HTSUS, "medicaments" are medicinal preparations for use in the internal or external treatment or prevention of human or animal ailments (i.e., therapeutic or prophylactic uses). HQ 084102, dated November 24, 1989. “Therapeutic use” has been described by the courts in Austin Chemical Co. v. United States, 659 F. Supp. 229 (CIT 1987), aff’d by Austin Chemical Company, Inc. v. United States, 835 F.2d at 1426 (CAFC 1987). The court first noted that "therapeutic" means "of or relating to the treatment of disease or disorders by remedial agents or methods; CURATIVE, MEDICINAL." Id. at 231 (citing Webster's Third New International Dictionary (1966)). The court stated that the term "therapeutic use" indicates that a substance, by itself, is in a condition ready for use as a curative. See Austin, 659 F. Supp. at 231-32.
Nicotine dependency is a medical ailment for purposes of heading 3004, HTSUS. See HQ 961666, dated April 14, 1998 (classifying a nicotine transdermal delivery system which aids in breaking the nicotine dependency associated with smoking in heading 3004, HTSUS). However, unlike the nicotine transdermal delivery system, which contains the drug nicotine, the instant smokeless inhalers do not contain medicinal preparations used to treat or prevent nicotine dependency.
Rather, the instant product offers sensory stimuli intended to curb or satiate the smoker’s behavioral desires associated with smoking, such as the oral fixation or the “calming effect” of drawing on a cigarette and inhaling the vapors. An article may be a substitute for another, where it takes the place of the other and has similar characteristics and uses. See Tai Lung Co. v. United States, 18 CCPA 35, 37; T.D. 44004. “However, the mere fact … that a substance is used in lieu of another does not … establish that it is …a substitute….” Rudolph Faehndrich et al. v. United States, 49 Cust. Ct. 1, 5; C.D. 2351 (1962). The instant article is intended to be used in lieu of smoking, but is neither a “substitute” for tariff purposes (e.g., tobacco substitute of heading 2403, HTSUS), nor a medicament, because it lacks medicinal value. Accordingly, heading 3004, HTSUS, does not cover the instant smokeless inhalers. Thus, NY 875303 is in error.
We now must determine the appropriate classification of this product. “Flowers Menthol” is in part a plastic article, in part cotton, and in part a mixture containing menthol crystals. As no single heading describes the article as a whole, the smokeless inhaler is not classifiable according to GRI 1, but is a composite good according to GRI 3. Therefore, we must apply GRI 3(b), which provides that composite goods are to be classified according to the component that gives the good its essential character.
EN VIII to GRI 3(b) explains that "[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods." Recent court decisions on the essential character for 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Better Home Plastics Corp. v. U.S., 916 F. Supp. 1265 (CIT 1996), aff’d 119 F. 3d 969 (CAFC 1997); Mita Copystar America, Inc. v. U.S., 966 F.Supp. 1245 (CIT 1997), rehear’g denied, 994 F. Supp. 393 (1998); Vista Int’l Packing Co. v. U.S., 890 F. Supp. 1095 (CIT 1995). See also Pillowtex Corp. v. U.S., 893 F. Supp. 188 (CIT 1997), aff’d 171 F. 3d 1370 (CAFC 1999).
We find the flavor mixture predominates over the plastic and cotton components, as it is the inhalant portion of the inhaler that establishes the good’s essential character, providing the appeal and purpose of the product. Therefore, “Flowers Menthol” is classifiable as a chemical preparation not elsewhere specified or included under heading 3824, HTSUS.
HOLDING:
“Flowers Menthol” smokeless inhalers are classified in subheading 3824.90.91, HTSUS, which provides for, “Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; other: other: other: other.”
EFFECT ON OTHER RULINGS:
NY 875303, dated June 17, 1992, is hereby REVOKED. In accordance with 19 U.S.C 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Acting Director
Commercial Rulings Division