CLA-2 OT: RR: CTF: TCM H027857 RM
Mr. Clark D. Bien
Great Lakes Ingredients, LLC
2037 Geddes Avenue
Ann Arbor, MI 48104
RE: Revocation of New York Ruling Letter J80284, dated February 3, 2003; Classification of Marbits
Dear Mr. Bien:
This is in reference to New York Ruling Letter (NY) J80284, issued to you on behalf of Great Lakes Ingredients, LLC, on February 3, 2003. In that ruling, U.S. Customs and Border Protection (CBP) determined that the subject “marbits” were classified under subheading 2106.90.9400, Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY J80284 and determined that the tariff classification of the marbits 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 modification was published on June 25, 2008, in the Customs Bulletin, Volume 42, No. 27. No comments were received in response to this notice.
FACTS:
In NY J80284, CBP described the marbits at issue as:
[A]n extruded marshmallow product, imported in bulk containers, and used as an ingredient in breakfast cereals. The samples were in the form of dry, brittle, multi-colored pieces approximately 1/2 inch wide and 3/16 inch thick, shaped like the head of Mickey Mouse. The products are said to be composed of 70 percent sugar, 11 percent corn starch, 9 percent corn syrup, 7 percent dextrose, 2 percent gelatin, and 1 percent flavor, color, and sodium hexamet.
ISSUE:
What is the proper tariff classification of the marbits under the HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows:
1704 Sugar confectionery (including white chocolate), not containing cocoa:
Other:
Confections or sweetmeats ready for consumption:
Other:
Other …
1704.90. 3590 Other …
2106 Food preparations not elsewhere specified or included:
Other:
Other:
Other:
Other:
Other:
Articles containing over 65 percent by dry weight of sugar described in additional U.S. note 2 to chapter 17:
2106.90.94 Other 2/
CBP previously classified the marbits in heading 2106, HTSUS, as food preparations not elsewhere specified or included. For the reasons set forth below, we now find that the merchandise does not meet the terms of the heading because it is “elsewhere specified or included” as sugar confectionery of heading 1704, HTSUS.
Heading 1704, HTSUS, provides for sugar confectionery. The HTSUS does not contain a statutory definition for the term “confectionery.” However, CBP has adopted the meaning of the term given by the Court of International Trade (CIT) in Leaf Brands, Inc. v. United States, (“Leaf Brands”) 70 Cust. Ct. 66 (1973). The Court defined “confectionery” as the “many kinds of sweet-tasting articles which are eaten as such for their taste and flavor without further preparation and which are usually sold in confectionery outlets.” Id. at 71. Further, the Court found that whether an article is confectionery is determined by its chief use as a confection, which may be evidenced by its character and design and the manner in which it is sold (i.e., through candy brokers, in confectionery outlets), rather than by its shape and texture. Id. at 72. Following Leaf Brands, CBP has consistently taken the position that a confection is a product that, in its condition as imported, is ready for consumption at retail as a confectionery and is marketed as such; it is not an ingredient of another food product. See, for example, HQ 086101, dated February 27, 1990 (peanut flavored chips), HQ 085206, dated February 23, 1990 (white chocolate in 5 kg blocks), HQ 955580, dated July 30, 2002, and HQ 965211, dated August 1, 2002 (chocolate fish).
In this instance, it is undisputed that marbits are small marshmallows (they are composed of the standard ingredients of marshmallows, specifically, sugar, water, corn syrup, dextrose, corn starch, gelatin, artificial flavoring, and sodium hexamet, and have a similar consistency). Moreover, in their condition as imported, they are ready for consumption without further preparation, as marshmallows, and are goods of the kind usually sold in confectionery outlets.
CBP has previously established that marshmallows meet the definition of confectionery because they are eaten for their sweet taste without further preparation and are usually sold at confectionery outlets. See, e.g., NY 817105, dated December 8, 1995, NY M84135, dated July 3, 2006, and NY M86169, dated September 27, 2006. Because marbits are marshmallows, we find that they belong to the same class or kind as the goods classified as confectioneries. Indeed, marbits are analogous to the mini marshmallows used as toppings for hot chocolate mixes which CBP has classified as confectioneries of heading 1704, HTSUS. See HQ N010617, dated June 1, 2007, NYM86167, dated September 27, 2006, NY M85240, dated July 26, 2006, and NY M84135, dated July 3, 2006.
HOLDING:
By application of GRI 1, marbits are correctly classified under heading 1704, HTSUS, in subheading 1704.90.3590, as “Sugar confectionery (including white chocolate), not containing cocoa: Other: Confections or sweetmeats ready for consumption: Other: Other: Other.” The 2008 column one, general rate of duty is 5.6 percent ad valorem.
This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY J80284, dated February 3, 2003, is hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division