CLA-2 CO:R:C:F 950893
Mr. David B. Brown
Potter Anderson & Corroon
Delaware Trust Building
P.O. Box 951
Wilmington, DE 19899
RE: ActiBath Carbonated Bath Tablets; Bath Preparation in
heading 3307
Dear Mr. Brown:
This is in response to your letter of November 18, 1991,
submitted on behalf of your client, The Andrew Jergens Company.
Your inquiry requests the proper classification of carbonated
bath tablets under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). You submitted samples with your
request for a binding ruling.
FACTS:
The product, known as ActiBath Carbonated Bath Tablets,
imported from Japan, comes in four versions: Spring Floral, Blue
Forest, Moisture Treatment and Light & Fresh. It is marketed as
the world's first carbonated bath tablet which provides therapy
for the body and mind. The tablets are composed of either
succinic or fumaric acid, sodium bicarbonate, sodium carbonate,
Peg-150, fragrance, calcium silicate, cellulose gum, magnesium
oxide, sucrose stearate and FD&C Blue 1. The moisture treatment
Actibath is composed of succinic acid, dextrin, sodium
bicarbonate, sodium carbonate, cetyl octanoate, titanium dioxide,
Peg-150, steareth-6, fragrance, petrolatum, oleth-9, cholesteryl
isostearate, isostearic/myristic glycerides, polyquaternium-10,
FD&C Blue No. 1, tocopherol. When exposed to water, the acid
reacts with the sodium bicarbonate and sodium carbonate forming
carbon dioxide bubbles.
ISSUE:
Whether the ActiBath Carbonated Bath Tablets are
classifiable in subheading 3307.30.1000 as bath salts; or rather
in subheading 3307.30.5000 as other bath preparations.
-2-
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. The majority of imported goods are
classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule and any relative
section or chapter notes. Pursuant to GRI 6, the GRI's, section
notes and chapter notes pertain to subheadings in the same
fashion.
The product is classifiable according to the terms of
heading 3307 which provides, inter alia, for bath preparations.
However, at the subheading level 3307.30.1000 provides for bath
salts while 3307.30.5000 provides for other bath preparations.
Pursuant to GRI 6, the product is classifiable according to the
terms of the appropriate subheading. Thus, it is necessary to
clarify the term "bath salt" and determine whether the subject
product fits the definition. To this effect, the term is to be
given its common or commercial meaning. See 2 D. Serko, Import
Practice 79 (1991).
Bath salts may be formulated with either crystalline salts
such as rock salt and epsom salt, which effloresce, or may be a
product of sesquicarbonates, phosphates and borates. The latter
type functions, in part, as a water softener while the former
does not. Sodium carbonate serves as the water softening agent
not only in bath salts, but also in bath tablets which may be
formulated from crystals or sesquicarbonates as well. See 7
Kirk-Othmer, Encyclopedia of Chemical Technology 167 (1979) and
H.W. Hibbott, Handbook of Cosmetic Science 123 (1963).
However, as the inquirer properly provides, and research
confirms, sodium compounds or, more specifically, sodium
carbonate, are commonly employed in, but not unique to, bath
salts. Bath powders and water softeners are generally made with
either dried sodium carbonate or sesquicarbonate while bath pot-
pourri is generally made with borax crystals (a compound which
includes a hydrated sodium borate). See 3 W. Poucher, Perfumes,
Cosmetics and Soaps 3-18 (1960) and R. Harry, Cosmetics: Their
Principles and Practices 508-516 (1956). In addition, the
inquirer cites several bubble bath products which include either
sodium laureth sulfate or sodium bicarbonate and sodium
carbonate. In the past, it has been Customs' position that
bubble bath is not classifiable as a bath salt. See
Headquarter's Ruling Letter (HRL) 085166. Thus, the fact that
the product contains sodium carbonate or bicarbonate is not proof
that it is, in fact, a bath salt.
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Contrary to the inquirer's position, the product is not
distinguishable from a bath salt because of its soothing or
relaxing effect. Apparently, all of the bath products mentioned
above share this same quality. Likewise, for similar reasons,
the product's skin moisturizing capabilities are not probative in
this regard.
However, this product is distinguishable from a bath salt
due to its unique ability to release carbon dioxide when placed
in water, resulting from the chemical reaction between the
succinic (or fumaric) acid and the sodium bicarbonate and sodium
carbonate. Although bath salts, when placed in water, may
effloresce, they do not, nor are expected to, react with water
and release carbon dioxide bubbles producing the accompanying
effect. For these reasons, the product is not a bath salt and is
classifiable in subheading 3307.30.5000.
HOLDING:
The ActiBath Carbonated Bath Tablets are classifiable in
subheading 3307.30.5000, HTSUSA, as "Pre-shave, shaving or after-
shave preparations, personal deodorants, bath preparations...:
Perfumed bath salts and other bath preparations: Other." The
general column one rate of duty is 4.9 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division