CLA-2 CO:R:C:G: 084708 DPS 830372
Mr. Henri Berthe
H & D Importers
25 Ridgeway
Greenwich, Connecticut 06831
RE: HTSUSA classification of fermented malt beverages
described as "Wildberry" and "Raspberry French Sparklers."
Dear Mr. Berthe:
Your letter of May 18, 1989, regarding the tariff
classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), of fermented malt beverages
from France, labelled "French Sparkler," has been referred to
this office for a ruling. Samples were included with your
letter.
Your inquiry requested "reconsideration" of New York Ruling
830372, dated June 24, 1988. That ruling addressed classification
of the beverages under the Tariff Schedules of the United States
(TSUS), which, since January 1, 1989, has been superceded by the
HTSUSA. New York ruling 830372 further advised you of the
classification of the beverages under the HTSUSA, subheading
2206.00.9000, the provision for "other fermented beverages:
other," with a reservation of its applicability, pending changes
in the HTSUSA prior to enactment. We now confirm the earlier New
York ruling.
FACTS:
The subject merchandise requiring classification consists of
300 ml. bottles of fermented malt beverage, described as
"Wildberry" and "Raspberry." The label of each bottle includes
the words "French Sparkler." These products are manufactured in
France and sold under the "Jean Laurent" and "Rene La France"
brand names.
The importer asserts that the beverages at issue are
nothing more than flavored beer and should be classified under
the general beer category, subheading 2203.00.0000, HTSUSA. Our
New York office classified the merchandise under the "other
fermented beverages: other" category, subheading 2206.00.9000,
HTSUSA. This inquiry has been submitted to Headquarters for a
final ruling on the matter.
ISSUE:
Whether the fermented malt beverages described as
"Wildberry" and "Raspberry French Sparkler," are properly
classifiable as beer made from malt under subheading
2203.00.0030, HTSUSA; or as other fermented beverages, other,
under subheading 2206.00.9000, HTSUSA.
LAW AND ANALYSIS:
The General Rules for the Interpretation of the Harmonized
System (GRI's) govern classification under the Harmonized Tariff
Schedule. According to GRI 1, the primary consideration in
determining whether merchandise should be classified in a heading
should be given to the language of the heading and any relevant
chapter or section notes. The subheadings at issue in this case
are:
(a) 2203.00.0030, HTSUSA, beer made from malt, in
containers each holding not over 4 liters: in
glass containers; and
(b) 2206.00.9000, HTSUSA, other fermented
beverages: other.
If the "French Sparkler" products are considered to be beer, as
the importer argues, then subheading 2203.00.0030 would apply.
If not, then subheading 2206.00.9000 is proper. The importer
asserts that because the method of manufacturing is similar to
the process used in making beer, the "French Sparklers" should be
classified as beer.
The method of manufacturing the subject merchandise is
stated to begin with the fermentation of degenerated malt cereals
and hops to reduce foaming and natural bitterness. Sugar is
added to bring the alcohol content to 6 percent. The product is
agitated, and then goes through "ultra-filtration." It is stored
in 20,000 liter tanks, and then fructose, colorant red #40 and
quest flavor #RD54689 are added. The tartaric and citric acid
are adjusted, and sodium benzoate is added as a preservative.
Carbon dioxide is then adjusted and the product undergoes
EK 70 filtration, filling/bottling, tunnel pasteurization and
labelling.
The Explanatory Notes to the HTSUSA constitute the official
interpretation of the tariff at the international level. The
Explanatory Notes for heading 2203, HTSUSA, describe beer as an
alcoholic beverage obtained by fermenting a liquor (wort)
prepared from malted barley or wheat, water and hops. The Notes
further state:
Certain quantities of non-malted cereals may also
be used for the preparation of the liquor (wort).
The addition of hops imparts a bitter and
aromatic flavour and improves the keeping
qualities. Cherries or other flavouring
substances are sometimes added during
fermentation.(Emphasis added).
Sugar (particularly glucose), colouring matter,
carbon dioxide and other substances may also be
added.
The beverages at issue are produced using degenerated (old) malt
cereals and hops, which are not normally used in manufacturing
beer. Another distinguishing factor between beer and the "French
Sparkler" is the point at which flavoring is added. For beer,
flavorings are added during fermentation. This product is
produced by first manufacturing a bland malt product, and then
adding flavoring after fermentation.
With regard to appearance and marketing of beer, the
Explanatory Notes further provide:
Beer may be pale or dark, sweet or bitter, mild or
strong. It may be put up in barrels, bottles or in
airtight tins and marketed as ale, stout, etc.
The beverage at issue is bottled and labelled as "French
Sparkler," in an effort to compete in the wine cooler market. It
is distinct from beer. It does not have the taste, aroma,
character or appearance of beer. It is neither commercially, nor
commonly known as beer. Its market focus is on the wine cooler
market, not the beer market, as evidenced by its label,
appearance and packaging.
The factors discussed above are sufficient to distinguish
the subject merchandise from beer. The differences in
manufacturing, coupled with the product's unique commercial
identity, make classification under subheading 2206.00.9000
appropriate.
HOLDING:
The fermented malt beverages described as "Wildberry" and
"Raspberry French Sparkler" are properly classifiable under the
provision for other fermented beverages, other, in subheading
2206.00.9000, HTSUSA. Classification under this subheading
imposes a 100 percent ad valorem duty rate under item
9903.23.25, HTSUSA, because the product contains less than 7
percent alcohol by volume, and is a product of France, a member
of the European Community. If the importer can establish that
the goods at issue were shipped (exported from France) before
January 1, 1989, and that the goods were entered or withdrawn
from warehouse for consumption before February 1, 1989, then, the
particular importation would not be subject to the 100% ad
valorem tariff pursuant to 9903.23.25, HTSUSA. That tariff was
suspended, but, such suspension has since been terminated.
Accordingly, any subsequent importations of the goods at issue
here are subject to the 100% ad valorem tax. The exception
described above only applies if the two criteria, shipping before
January 1, 1989, and entry or withdrawal from warehouse for
consumption before February 1, 1989, are satisfied.
Due to the possibility of further suspensions of the
applicable tariff provision affecting selected imports from the
European Community, and the possibility of further developments
impacting such importations, local Customs offices should be
contacted prior to importing the merchandise to determine the
current applicability of 9903.23.25, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division