CLA RR:CR:GC 966448 MG
Dr. Dennis Jones
Zhishin, LLC
PO Box 65069
Burlington, Vermont 05406
Re: Request for reconsideration of NY Ruling I86920 Affirmed; Advantra Z® bitter orange extract.
Dear Dr. Jones:
This letter is in reply to your letter of March 12, 2003, and subsequent communication with our National Commodity Specialist Division in which you request reconsideration of NY Ruling I86920, dated February 20, 2003. Your request has been referred to this office for direct response. We have reviewed the classification in this ruling and have determined that it is correct. This ruling sets forth the correct classification.
FACTS:
The product, marketed under the trade name Advantra Z®, is a material in powder form derived from the fruit of the bitter orange, Citrus aurantium. NY Ruling I86920 described Advantra Z® (i.e., Advantra Z 6% and Advantra Z 30%) and its production process as drying and grinding the immature fruits to powder, mixing with water, heating, filtering, concentrating by vacuum evaporation, precipitating with alcohol, filtering and concentrating a second time, spray drying with maltodextrin, and packing into foil pouches or drums.
According to your letter, Advantra Z® is used as an ingredient in more than 200 retail formulated products which are sold domestically as dietary supplement aimed at weight loss and sports performance markets. You further state that the product is generally combined with other herbs or herbal extracts in the form of capsules or tablets and may also be incorporated as an ingredient in food products such as nutritional bars, powders and drinks.
Advantra Z 6% and Advantra Z 30% samples were analyzed by the Customs and Border Protection (“CBP”) Laboratory. According to the Laboratory reports, Advantra Z 6% contains 6 percent alkaloids, an unstated quantity of maltodextrin, and 5.5 percent ash. Advantra Z 30% contains 30 percent alkaloids, an unstated amount of maltodextrin, and 3.3 percent ash. The laboratory reports further describe the goods as having been purified by alcohol precipitation and cation resin isolation.
NY I86920 properly classified the product in subheading 2106.90.9998, HTSUSA, as a "[F]ood preparations not elsewhere specified or included: [O]ther: [O]ther: [O]ther: [O]ther." You submit that Advantra Z® should be classified under subheading 2939.99.0000, HTSUSA, as a “[V]egetable alkaloids, natural or reproduced by synthesis, and their salts, ethers, esters, esters and other derivatives (con.): [T]heophylline and aminophylline (theophylline-ethylenediamine) and their derivatives; salts thereof: [O]ther.” We note that your letter provides no new information concerning the products’ composition, method of production, or use.
ISSUE:
Is Advantra Z® classified as a vegetable alkaloid, sap, or extract, or as a food preparation under the HTSUS?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation.
The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to GRIs 1 through 5.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) represent the official interpretation of the Harmonized System at the international level and facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The following HTSUS provisions are relevant to the classification of this product:
Food preparations not elsewhere specified or included:
Other
2106.90.99 Other
2106.90.9998 Other
* * * * *
2939 Vegetable alkaloids, natural or reproduced by synthesis, and their salts, ethers, esters and other derivatives (con.): Theophylline and aminophylline (theophylline-ethylenediamine) and their derivatives; salts thereof:
2939.99.00 Other
* * * * *
Vegetable saps and extracts; pectin substances, pectinates and pectates; agar-agar and other mucillages and thickeners, whether or not modified, derived from vegetable products: Vegetables saps and extracts:
* * * * *
To be classified in heading 2936, you must meet the terms of note 1 to Chapter 29. In this regard, Chapter 29, note 1(a) states that: “…the headings of this Chapter apply only to separate chemically defined organic compounds.” Also, Chapter 29, note 1(b) states that “…the headings of this Chapter apply to mixtures of two or more isomers of the same organic compound.” Given the chemical composition of Advantra Z®, the same is precluded from classification in Chapter 29 as it is neither a separate and chemically defined organic compound, nor a mixture of the same organic compound. Because Advantra Z® does not consist solely of the naturally occurring alkaloids found in the fruit of Citrus aurantium, but contains a great deal of other plant constituents, heading 2939, HTSUS, does not apply.
Classification as a vegetable extract under heading 1302 is also under consideration. According to the laboratory report, we find that the treatment used to remove some of the components found in the crude extract constitutes further processing (manipulation) of the basic extract. In this regard, we find that Advantra Z® is excluded from classification as a vegetable extract in heading 1302, HTSUS. We note that the Explanatory Notes to heading 1302, HTSUS only speak to the addition of inert substances to certain extracts so that they can be more easily reduced to powder. In the case of Advantra Z 30%, subjecting the basic extract to liquid column chromatography (a technique for separating and quantifying the constituents of a mixture) constitutes further processing and manipulation of the basic extract, further resulting in its exclusion from classification in heading 1302, HTSUS. We further note that the laboratory report for Advantra Z 6% makes mention of “cation resin isolation,” which appears to be the same type of chromatography procedure carried out for Advantra Z 30%. As stated above, the use of this chromatographic procedure in the preparation of these products exclude them from classification as vegetable extracts in heading 1302, HTSUS.
Food supplements, classified in heading 2106, HTSUS, encompass an expansive group of items. They simply must be prepared for human consumption. As such, these products are packaged for oral ingestion only as a capsule, tablet, powder or liquid. They are put up in packaging with indications that they maintain general health or wellbeing. See HQ 966527, dated October 21, 2003.
Additional U.S. Rule of Interpretation 1(a) requires that "a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use."
When applying a "principal use" provision, the Court must ascertain the class or kind of goods which are involved and decide whether the subject merchandise is a member of that class. See supra Additional U.S. Rule of Interpretation 1 to the HTSUS. In determining the class or kind of goods, the Court examines factors which may include: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels of trade in which the merchandise moves; (4) the environment of the sale (e.g. the manner in which the merchandise is advertised and displayed); (5) the usage of the merchandise; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377, cert. denied, 429 U.S. 979, 50 L. Ed. 2d 587, 97 S. Ct. 490 (1976); see also Lenox Coll., 20 C.I.T., Slip Op. 96-30, at page 5. [Hereinafter cited as "Carborundum factors."]
See, E. M. Chemicals v. United States, 20 C.I.T. 382, 923 F. Supp. 202 (1996 Ct. Intl. Trade). Therefore, the determinative issue is whether Advantra Z®, as imported in powder form and put up for retail sale, labeled and advertised as a dietary supplement which regulates appetite, body weight (weight loss), improves athletic performance and increases muscle mass, is of the class or kind of good that is principally prepared or used as a dietary supplement.
In applying the Carborundum factors set forth supra, Advantra Z® tablets and capsules are presently used in the U.S. as a food supplement aimed at weight loss and sports performance markets. The merchandise is available over the counter in pharmacies and health food stores as a dietary supplement, which regulates appetite, body weight (weight loss), and improves athletic performance and increases muscle mass. Therefore, economic practicality, standards in the trade, and the sale of the product generally place Advantra Z® squarely under the tariff provisions for food supplements. See also HQ 964673 (February 4, 2002).
We have often ruled that products are classified in heading 2106, HTSUS, when extracts are encapsulated and when it becomes apparent from the promotional literature of the product that the intent is to market the finished food product as a food supplement. Therefore, whether imported in powder, tablet or capsule form, Advantra Z is classified in heading 2106, HTSUS, as a food supplement. See HQ 962388 (February 23, 2000). Based on the above analysis and the lack of additional information, we affirm CBP’s finding in NY I86920.
HOLDING:
Advantra Z® is classified in subheading 2106.90.9998, HTSUSA, which provides for: "[F]ood preparations not elsewhere specified or included: [O]ther: [O]ther: [O]ther: [O]ther."
Articles classified under this tariff provision have a column one, general rate of duty of 6.4 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY I86920 is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Director Commercial Rulings Division