HQ 084864
October 10,1989
CLA-2 CO:R:G 084864 H
Tariff No.: 2008.92.90
Mr. Jeffrey H. Pfeffer
Fritz Companies, Inc.
40 Exchange Place, 12th Floor
New York,NY 10005
RE: Fruit Snacks
Dear Mr. Pfeffer:
Your letter of June 12, 1989, concerns New York Ruling
Letter (NYRL) 837674, dated March 12,1989, which involved the
tariff classification under the Harmonized Tariff Schedule of
the United States (HTSUS), of Okanagan Fruit Snacks.
FACTS:
The samples submitted were flat, rectangular semi-solid
forms, about 4 inches in length, 2-1/4 inches in width, and 1/2
ounce in weight, and packaged in cellophane wrapper. They are
said to be composed of an apple concentrate base, which is
flavored with apricot, peach, raspberry, strawberry, or sour
cherry paste, with added apple fiber and a small amount of
lemon flavor for tartness. The label advertises the snacks as
being "'All Fruit' No Sugar Added."
ISSUE:
Whether Okanagan Fruit Snacks are classifiable as sugar
confections in subheading 1704.90.20, HTSUS, or under the
heading for other mixtures of fruit, nuts, and other edible
parts of plants, otherwise prepared or preserved, whether or
not containing added sugar or other sweetening matter or
spirit, not elsewhere specified or included, in subheadings
2008.92.9090, HTSUS, or 2008.99.0500, HTSUS, depending on the
flavor.
-2-
LAW AND ANALYSIS:
While it is admitted that there is no added sugar in the
products, it is claimed that they are, nonetheless, sugar
confectionaries, because the apple concentrate supplies the
added sugar in the form of fructose.
Classification of merchandise under the HTSUS is governed
by the General Rules of Interpretation (GRI's). GRI 1 provides
that classification is determined first in accordance with the
terms of the headings and any relative Section and Chapter
Notes. The Explanatory Notes, which should be consulted for
guidance in the interpretation of the provisions of the HTSUS,
state, in regard to heading 1704, "Sugar Confectionary..", that
the heading covers most of the sugar preparations which are
marketed in solid or semi-solid form, generally suitable for
immediate consumption and collectively referred to as
sweetmeats, confectionary or candies. The products covered in
the heading are said to contain sugar or to be based on sugar.
In support of classification of a confectionary, Leaf Brands,
Inc., v. United States, 70 Cust. Ct. 66, ( C.D. 4409) (1973),
is cited. However, the product in issue in that case involved
one which was 95 percent dextrose with flavoring added.
In other words, the product was virtually all sugar. In
contrast, the fruit snacks do not contain added sugar, but
contain apple juice concentrate as the sweetening agent. Apple
juice concentrate is classifiable as apple juice in subheading
2009.70.00, HTSUS, and not as a flavored syrup in 2106.90.50,
HTSUS. Customs defines a fruit syrup as a fruit juice to which
50 percent sugar has been added and has at least 33-1/3 pure
fruit juice.
In addition it is claimed that another reason for
classifying the snacks in heading 1704 is that the Explanatory
Notes mention that fruit pastes put up in the form of a
confectionary are classifiable in that heading. The notes
describe fruit pastes as being evaporated purees of solid or
almost solid consistency. Fruit purees are prepared by boiling
sieved fruit pulp with or without sugar to a solid consistency.
There is no indication that the fruit snacks were initially
pureed. Regardless of whether or not they were, the
composition of the finished snacks takes them out of the
category of fruit pastes.
-3-
It is also argued that the snacks are not to be included
in heading 2008 because the products provided for in the
heading are usually in "whole, in pieces or crushed" and the
fruit snacks are in a semi-solid paste form. Included in the
examples of foods classifiable in heading 2008 is peanut
butter, which generally considered to be in a paste form.
Therefore, upon review of all of the classification
possibilities, heading 2008 appears the most specific.
HOLDING:
Okanagon Fruit Snacks are classifiable in heading
2008.92.90, HTSUS, except for apple cinnamon flavor which is
classifiable in subheading 2008.99.0500, HTSUS.
NYRL 837694 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division
6 cc: Area Dir., N.. Seaport
J. Hurley library/peh
084864