CLA-2 OT: RR: CTF: TCM H027858 RM
Ms. Ann Waymouth
Kellogg Company
325 Porter Street
Battle Creek, MI 49014
RE: Revocation of New York Ruling Letter H86740, dated February 21, 2002; Classification of Marbits
Dear Ms. Waymouth:
This is in reference to New York Ruling Letter (NY) H86740, issued to you on behalf of the Kellogg Company on February 21, 2002. In that ruling, U.S. Customs and Border Protection (CBP) determined that the subject “marbits” were classified under heading 2106, Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY H86740 and found it to be 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 H86740, CBP described the subject marbits as:
[C]ylindrical-shaped, dried marshmallow pieces measuring approximately 3/8 inch tall and 1/4 inch in diameter. They consist of sugar (over 10 but less than
65 percent, by dry weight), corn syrup, cornstarch, dextrose, gelatin, vanilla flavor, and sodium hexamet. The marbits are used as an ingredient in the production of a retail-packed cereal product.
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:
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 H86740, dated February 21, 2002, is hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division