OT:RR:CTF:FTM H320380 TSM
Ms. Lori D’Ascenzo
Enlightened Feelings
24 Carolina Way
Port Rowan ON N0E 1M0
Canada
RE: Tariff classification of “Frequencies of Living Flowers”
Dear Ms. D’Ascenzo,
This is in response to your request, on behalf of Enlightened Feelings, dated August 9, 2021, for a binding ruling regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of a product described as “Frequencies of Living Flowers.”
FACTS:
The label for the “Frequencies of Living Flowers” product describes it as frequencies of living flowers captured in spring water, preserved with 5% grain alcohol (ethanol). The product is said to be created by capturing light photons emitted from living flowers in spring water with 5% grain alcohol. The stated purpose of the product is “restoring emotional and soul balance.”
To consume the product, the user typically adds 30 drops to a 4 oz. glass of water, and sips the mixture. Other formulations of the product include those designed to be held against the body, sprayed topically or throughout a room, or swilled in the mouth and spit out.
ISSUE:
What is the tariff classification of “Frequencies of Living Flowers”?
LAW AND ANALYSIS:
Classification decisions under the HTSUS are 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 2021 HTSUS provisions under consideration are as follows:
2208 Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages
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3303 Perfumes and toilet waters
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In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
General EN to Chapter 22 provides in relevant part as follows:
The products of this Chapter constitute a group quite distinct from the foodstuffs covered by the preceding Chapters of the Nomenclature.
They fall into four main groups:
(A) Water and other non-alcoholic beverages and ice.
(B) Fermented alcoholic beverages (beer, wine, cider, etc.).
(C) Distilled alcoholic liquids and beverages (liqueurs, spirits, etc.) and ethyl alcohol.
(D) Vinegar and substitutes for vinegar.
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EN 22.08 provides in relevant part as follows:
Spirits produced by distilling wine, cider or other fermented beverages or fermented grain or other vegetable products, without adding flavouring; they retain, wholly or partly, the secondary constituents (esters, aldehydes, acids, higher alcohols, etc.) which give the spirits their peculiar individual flavours and aromas.
Liqueurs and cordials, being spirituous beverages to which sugar, honey or other natural sweeteners and extracts or essences have been added (e.g., spirituous beverages produced by distilling, or by mixing, ethyl alcohol or distilled spirits, with one or more of the following : fruits, flowers or other parts of plants, extracts, essences, essential oils or juices, whether or not concentrated). These products also include liqueurs and cordials containing sugar crystals, fruit juice liqueurs, egg liqueurs, herb liqueurs, berry liqueurs, spice liqueurs, tea liqueurs, chocolate liqueurs, milk liqueurs and honey liqueurs.
All other spirituous beverages not falling in any preceding heading of this Chapter.
Provided that their alcoholic strength by volume is less than 80% vol, the heading also covers undenatured alcoholic spirits (ethyl alcohol and neutral spirits) which, contrary to those at (A), (B) and (C) above, are characterised by the absence of secondary constituents giving a flavor or aroma. These spirits remain in the heading whether intended for human consumption or for industrial purposes.
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EN 33.03 provides in relevant part as follows:
This heading covers perfumes in liquid, cream or solid form (including sticks), and toilet waters, designed to give fragrance primarily to the human body.
Perfumes and scents generally consist of essential oils, floral concretes, absolutes or mixtures of synthetic odoriferous substances, dissolved in highly concentrated alcohol. They are usually compounded with slightly perfumed adjuvants and a fixative or stabilizer.
Toilet waters, e.g., lavender water, eau de Cologne (not to be confused with the aqueous distillates and solutions of essential oils of heading 33.01) contain smaller proportions of essential oils, etc., generally in less concentrated alcohol than the perfumes described above.
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Based on the information that you provided, the “Frequencies of Living Flowers” product contains light photons emitted from living flowers, spring water, and 5 percent by volume grain alcohol (ethanol). With regard to light photons, we note that they are not tangible or physical, and are not described by any of the HTSUS headings. As such, light photons cannot be considered for tariff classification purposes. For tariff classification purposes, the product at issue contains spring water and 5 percent by volume grain alcohol. In other words, the product is diluted ethyl alcohol. Heading 2208, HTSUS, provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages.” EN 22.08 further provides in relevant part that “the heading also covers undenatured alcoholic spirits (ethyl alcohol and neutral spirits) which … are characterised by the absence of secondary constituents giving a flavor or aroma.” Consistent with EN 22.08, the product at issue does not contain any secondary constituents that would give it a flavor or aroma.
Based on the foregoing, we conclude that the “Frequencies of Living Flowers” product is classified under heading 2208, HTSUS, and specifically under subheading 2208.90.7500, HTSUSA (Annotated), which provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages: Other: Other: Spirits: Other.” See New York Ruling Letter (“NY”) A88238, dated October 10, 1996 (finding that a product containing 5 percent ethyl alcohol and water is classified under subheading 2208.90.7500, HTSUSA); and NY A89277, dated November 19, 1986 (finding that a product containing 0.5 percent ethyl alcohol and water is classified under subheading 2208.90.7500, HTSUSA).
In your submission, you also argued that the “Frequencies of Living Flowers” product is classified under heading 3303, HTSUS, which provides for “Perfumes and toilet waters.” Upon review, we disagree. Consistent with EN 33.03, perfumes, scents, and toilet waters, consist of essential oils and floral concentrates, and are designed to give fragrance to the human body. In contrast, the product at issue does not contain any oils or floral concentrates and is not designed to give fragrance to the human body. Therefore, it is not classified under heading 3303, HTSUS.
HOLDING:
By application of GRI 1 and 6, we find that the “Frequencies of Living Flowers” product is classified under heading 2208, HTSUS, and specifically under subheading 2208.90.7500, HTSUSA, which provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages: Other: Other: Spirits: Other.” The 2021 general, column one rate of duty is free. 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/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Yuliya A. Gulis, Chief Food, Textiles and Marking Branch