CLA-2 CO:R:C 555619 RA
Mr. Jack D. Mlawski
Galvin, Haroian & Mlawski
425 Park Avenue, 29th Floor
New York, New York 10022
Re: Applicability of sample provision in subheading
9811.00.60, HTSUS, to pharmaceutical tablets
Dear Mr. Mlawski:
This is in response to your letter of March 23, 1990,
requesting a ruling on the eligibility for free entry under
subheading 9811.00.60, Harmonized Tariff Schedule of the
United States (HTSUS), of sample prescription pharmaceutical
tablets.
FACTS:
You state that the tablets will be imported in bulk and
repackaged for distribution to physicians who will give them
to their patients free of charge. The tablets will be
repacked in vials or in blister packs in varying amounts and
the containers will state that the contents are complimentary
and not for sale. The purpose of distributing the sample
tablets through physicians is to create a demand for the
foreign products. You indicate that, upon importation,
either each tablet will be marked "Sample" or the bulk
container will be marked "Samples."
ISSUE:
Whether the imported tablets will be entitled to free
entry as samples for soliciting orders for foreign products
under subheading 9811.00.60, HTSUS.
LAW AND ANALYSIS:
Subheading 9811.00.60, HTSUS, provides for the free entry
of any sample valued not over $1.00 each, or marked, torn,
perforated, or otherwise treated so that it is unsuitable for
sale or for use otherwise than as a sample, to be used in the
U.S. only for soliciting orders for products of foreign
countries.
- 2 -
You believe that your case is similar to that involved in
Italian Drug Importing Co. v. U.S., 46 Cust. Ct. 243, C.D.
2263 (1961), where the court allowed the free entry claim
under a precursor provision to subheading 9811.00.60, HTSUS,
for vitamins imported and distributed to physicians for use as
samples. However, as you noted, the samples in that case were
not imported in bulk and repackaged after importation as your
client intends to do. In our opinion, if the tablets are
imported in bulk and not individually marked or treated in
some way to distinguish them from standard merchandise, they
cannot be considered to fall within the scope of the term
"samples." The mere marking of the outer container of the
bulk merchandise would not be sufficient to ensure that the
tablets are rendered, unsuitable for sale or for use otherwise
than as a sample" since the tablets could be distributed
through regular commercial channels and not used as samples
for taking orders.
However, if the tablets in their condition as imported
are individually marked "Sample," they could be treated as
samples and, under the principle of the Italian Drug case,
eligible for free entry under subheading 9811.00.60, HTSUSA,
upon proof that the tablets will be distributed to physicians
to give to their patients in order to stimulate future orders
of the foreign product.
HOLDING:
Pharmaceutical tablets individually marked "Sample" and
imported to be repackaged and distributed to physicians who
will supply them free of charge to patients are entitled to
free entry under subheading 9811.00.60, HTSUS, upon submission
of proof of the intended use.
Sincerely,
John Durant, Director,
Commercial Rulings Division