CLA-2 RR:CR:GC 966116ptl
Ms. Maria E. Celis
Neville Peterson, LLP
80 Broad Street
New York, NY 10004
Re: Modification of NY I87776; "Danette Flan"
Dear Ms. Celis:
This is in response to your request, dated December 10, 2002, that Customs reconsider New York Ruling Letter (NY) I87776, issued by the National Commodity Specialist Division in New York, on November 14, 2002, to your firm, on behalf of the Dannon Company regarding the classification of Danette Flan under the Harmonized Tariff Schedule of the United States (HTSUS). That ruling classified the Danette Flan in subheading 1901.90.4600, HTSUS, which provides for food preparations of goods of headings 0401 to 0404, not containing cocoa … not elsewhere specified or included … other … other dairy products described in additional U.S. note 1 to Chapter 4 … other ... described in additional U.S. note 10 to Chapter 4 and entered pursuant to its provision.
You contend that the product should be classified in subheading 1901.90.2500, HTSUS, which provides for puddings ready for immediate consumption without further preparation.
We have reviewed the ruling and determined that, based on the composition of the product, the classification was incorrect. The correct classification, as discussed below, is in subheading 1901.90.4200, HTSUS, which provides for food preparations of goods of headings 0401 to 0404, not containing cocoa … not elsewhere specified or included … other … other dairy products described in additional U.S. note 1 to
Chapter 4: dairy preparations containing over 10 percent by weight of milk solids: described in additional U.S. note 10 to Chapter 4 and entered pursuant to its provision. If the quantitative limits of additional U.S. note 10 to chapter 4 have been reached, the product will be classified in subheading 1901.90.4300, HTSUS, the over-quota subheading.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed revocation of NY I87776 was published on September 3, 2003, in the Customs Bulletin, Volume 37, Number 36. You submitted the only comment received. This letter responds to the points you raised in that comment.
FACTS:
The product under consideration, "Danette Flan," is a ready-to-eat, soft, yet moderately firm, light yellow colored product, put up in foil sealed plastic cups, each containing 100 grams, net weight. The product is said to contain the following ingredients: skim milk, cream, refined sugar, powdered eggs, carrageenan, skim milk powder, anhydrous tetrasodium pyrophosphate, vanillin flavor, color and caramel. Samples you provided were examined and disposed of because they were perishable.
ISSUE:
Whether a "flan" is a pudding of subheading 1901.90.25, HTSUS, or an "other preparation of goods of headings 0401 to 0404"?
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 most 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 the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS subheadings under consideration are as follows:
1901 Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food preparations of goods of headings 0401 to 0404, not containing cocoa or containing less than 5 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included:
* * *
1901.90 Other
* * *
1901.90.2500 Puddings ready for immediate consumption without further preparation
* * *
Other:
Dairy products described in additional U.S. note 1 to chapter 4:
Dairy preparations containing over 10 percent by weight of milk solids:
* * *
1901.90.4200 Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions
1901.90.4300 Other 1/
Other:
* * *
1901.90.4600 Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions
1901.90.4700 Other 2/
1/ See subheadings 9904.04.50-9904.05.01.
2/ See subheadings 9904.04.50-9904.05.01.
You contend that the proper classification of the product, "Danette Flan," is in subheading 1901.90.2500, HTSUS, which provides for puddings, ready for immediate consumption. You allege this is so because the product satisfies the common meaning of the term "pudding," and because it is made in "the same exact fashion and made to the same consistency" as another Dannon product which has been determined to be classified in the pudding subheading.
As an introduction to your argument that a "Flan" should be considered to be a "Pudding," you note that the term "pudding" is not defined in the HTSUS or the ENs. You state, and we agree, that in the absence of a definition of a term in the tariff or the ENs, the term's correct meaning is its common and commercial meaning. The meaning of a term may be ascertained from lexicographic authorities. (See Carl Zeiss v. United States, 195 F3d 1375 (Fed. Cir. 1999)) Your submission contains definitions of "pudding" from several sources. You state: "Pudding is also a species of food of a soft or moderately hard consistence, variously made, but often a compound of flour or meal, with milk and eggs, etc. According to the American Heritage Dictionary, pudding is either (1) a sweet dessert, usually containing flour or a cereal product, that has been boiled, steamed, or baked; or (2) a mixture with a soft, puddinglike consistence. Finally, pudding is a thick, soft dessert, typically containing flour or some other thickener, milk, eggs, a flavoring, as tapioca pudding." (Citations omitted)
You further argue that Customs has classified "similar" products as puddings. You cite NY 854493, dated August 2, 1990, where haupia, a cooked, sweet dessert made from coconut milk, sugar, water and corn starch, put up in cans for retail sale, was classified in subheading 1901.90.2500, HTSUS. You also cite NY 814294, dated November 14, 1995, where pudding products made from water, sucrose syrup, condensed milk, starch, salt, flavor and color were classified in subheading 1901.90.2500, HTSUS, as puddings ready for immediate consumption. Finally, you refer to the ruling you are asking us to reconsider, NY I87776, in which Danette custards, composed of skim milk, sugar, cream, starch, skim milk powder, gelatin, and tetrasodium pyrophosphate, were classified in subheading 1901.90.2500, HTSUS. You claim that because Customs classified these products under the subheading for puddings, your flan should be classified there also.
The definitions and case citations you have provided are consistent with Customs classification and treatment of puddings and flans. In fact, they support the classification of the Danette flans contained in NY I87776, as products that are not puddings. Customs has consistently followed a three-part evaluation process in determining whether products should be classified as puddings. The criteria used were the ingredient composition of the product, its method of preparation, and its form.
In NY 854493, which you cited, it is significant that a product, kulolo (taro pudding) which is prepared similarly to the haupia but with different ingredients, and containing no farinaceous substance, was not classified as a pudding, but in heading 2008.99.9090, HTSUS, the provision for other edible parts of plants, otherwise prepared or preserved … other … other.
A flan may be pudding-like, but it is not a pudding. A reading of the definitions of "pudding" that you provided, and the product ingredients in the cases you cited, will show that all "puddings" contain some starch or flour, meal, or cereal product with a farinaceous base. A flan does not. A flan is a milk-based, sweet dessert, prepared by cooking, but it has no farinaceous base. Traditionally, flans achieve their semi-solid form through the gelling action of the egg ingredients. The Danette flan contains both eggs (powdered) and carrageenan which will also cause gelling.
Puddings are described by that portion of heading 1901, HTSUS, which provides for food preparations of flour, groats, meal, starch, … not elsewhere specified or included. Flans, which do not contain flour, meal or starch, are described by that portion of the same heading which provides for food preparations of headings 0401 to 0404 … not elsewhere specified of included. Customs has consistently classified flans and other milk-based products that do not qualify for classification as puddings in the dairy subheadings of heading 1901, HTSUS. (See HQ 950624, dated February 20, 1992; HQ 958036, dated August 4, 1995) The actual subheading depends on the amount of milk solids in the product.
In a comment submitted in response to the notice of proposed modification of
NY I87776, in the Customs Bulletin, you raise some points not made in earlier submissions, and rephrase others.
The comment states that Congress clearly "intended that "puddings" of HTS Heading 1905, which are products of flour, be distinct from puddings of Heading 1901, which may or may not contain flour." We agree that by providing for puddings twice in the same chapter Congress did intend to distinguish between the two varieties. However, we disagree with the interpretation you offer. As you said, prior to the adoption of the Harmonized System, all puddings were classified in the provision for bread, pastry, … similar baked goods, and puddings. This provision was retained in the heading covering bakers wares (1905). The provision covering food preparations of flour, meal starch or malt extract (1901) provided Congress the opportunity to separate ready to eat dessert and snack puddings from those traditionally recognized as bakers wares. However, this new provision did not alter or change the tariff definition of the word "pudding." It did not expand the tariff definition of what had been considered puddings, but merely placed ready-to-eat puddings in a different heading. As stated elsewhere in this letter, it has consistently been Customs practice to classify products as puddings only when they contain, as an ingredient, a starch material.
The comment continues to state that the common meaning of the term "pudding" is now understood to encompass both types of products, and that heading 1901.90.25 is not limited to products "made from flour." In an effort to show that the current
understanding of the word "pudding" includes products which do not contain flour or other farinaceous substances, the comment provides dictionary definitions and internet recipes for several "newer" "dairy-based dessert-type puddings."
In response to the argument that "new" products are being created and being described as "puddings" by the marketer or chef and should therefore be considered "puddings" for classification purposes, Customs responds that products such as Dannon's have always existed and have been known as "Flans." "Flans" have always been known throughout culinary circles as being distinct from "puddings". We note that Dannon recognizes this distinction and that the product under consideration is not marketed as a "pudding," but rather as a "flan." Because they do not contain a farinaceous substance among their ingredients, flans have consistently been classified as other food preparations of goods of headings 0401 to 0404, in subheadings 1901.90.42 through 47, HTSUS, the provisions that do not include puddings.
When considering the product, Danette flan, one determines the total milk solids composition of the product by adding the milk solid percentage of the various milk component ingredients together. For this product, they are: skim milk – 73.95% (with a standard 9.5% milk solids) produces 7.02% milk solids; cream (40% fat content) – 8.7% produces 3.23% milk solids; and skim milk powder – 1.33 % produces 1.33% milk solids. Thus, the total percentage of milk solids in the product is: 7.02 + 3.23 +1.33 or 11.58%. Because this is greater than 10%, classification is in subheadings 1901.90.4200 or 1901.90.4300, HTSUS, depending on whether the quantitative limits of additional U.S. note 10 to chapter 4 have been reached.
In NY I87776, the Danette Flan was classified in the subheading for dairy preparations which do not contain over 10 percent by weight milk solids. As discussed above, the product does contain over 10 percent by weight milk solids. Therefore, this ruling modifies NY I87776 by correcting the classification of Danette flan to properly reflect its ingredient composition.
HOLDING:
Danette Flan, a ready-to-eat yellow-colored product in 100 gram foil-sealed plastic cups, is classified in subheading 1901.90.4200, HTSUS, which provides for food preparations of goods of headings 0401 to 0404, not containing cocoa … not elsewhere specified or included … other … other dairy products described in additional U.S. note 1 to Chapter 4: dairy preparations containing over 10 percent by weight of milk solids: described in additional U.S. note 10 to Chapter 4 and entered pursuant to its provision. If the quantitative limits of additional U.S. note 10 to Chapter 4 have been reached, the product will be classified in subheading 1901.90.4300, HTSUS, the over-quota subheading.
EFFECT ON OTHER RULINGS:
NY I87776, dated November 14, 2002, is modified in accordance with this ruling. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division