CLA-2 CO:R:C:F 950917 JGH
Roger L. Hiatt, Esq.
Miller & Steuart
2320 Commerce Tower
911 Main Street
Kansas City, Missouri 64105
RE: Classification of Alactamil, infant formula
Dear Mr. Hiatt:
Your inquiry of December 9, 1991, concerns the tariff
classification, under the Harmonized Tariff Schedule of the
United States (HTSUS), of Alactamil, a product of Canada,
imported by Bristol-Myers Squibb.
FACTS:
Alactamil is said to be designed for infants who exhibit a
lactose intolerance, and is intended as a complete nutritional
source, or as a breast milk supplement, from birth to age one.
It is described as a blend, by weight, of 54% corn syrup solids,
12.71%- milk proteins, 15.50%- coconut oil, 12.70%- soy oil,
2.50%- vitamins, minerals and emulsifiers, 1.06%- potassium
citrate and 1.44%- calcium phosphate. The milk protein is said
to be obtained from a casein product. It is to be packaged in
14- and 16-ounce cans of powder, 13-ounce cans of concentrated
liquid, 8-and 32-ounce cans of ready-to-use liquids, and 4-ounce
ready-to-use nursettes for hospital use.
ISSUE:
Whether Alactamil is classifiable in the provision for
preparations for infant use, put up for retail sale, in
subheading 1901.10.00, HTSUS; other nonalcoholic beverages, in
subheading 2202.90.9090,HTSUS; or other food preparations no
elsewhere specified or included, in subheading 2106.90.6099,
HTSUS.
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LAW AND ANALYSIS:
It is your position that Alactamil is not classifiable in
heading 1901, since it is not an article of milk. It is
contended that as the product contains vegetable oil in place of
milk fat, corn syrup solids in place of lactose, and less than
half the amount of milk protein as cow's milk, it can not be
considered a preparation based on milk. It is stated that the
product is designed for the infant who is lactose intolerant;
intended as a complete nutritional supplement, supplying the
infant's protein, carbohydrate, vitamin and mineral
requirements.
The Explanatory Notes to heading 1901, HTSUS, point out
that food preparations based on headings 0401 to 0404, used as
infant food, would be included in subheading 1901.10.00, HTSUS.
Alactamil is a milk substitute product which contains a milk
derivative. However, the milk protein is not derived from whole
milk but created from something further down the line: A casein
product. Therefore, since the protein is not obtained directly
from whole milk, Alactamil is not considered a product based on
goods of headings 0401 to 0404, HTSUS.
Furthermore, since Alactamil is intended as a food product,
one to be used to supplement or supplant an infant's normal diet,
it is something more than a beverage. It is a food. Therefore,
heading 2202, HTSUS, would not apply.
The Explanatory Notes to Chapter 30, HTSUS, which concerns
the classification of pharmaceuticals and medicaments, state that
the chapter does not cover foodstuffs which are considered
dietetic, diabetic or fortified foods; those preparations which
contain only nutritional substances. The Notes go on to state
that the major nutritional substances in food are proteins,
carbohydrates and fats. It is indicated that these products
would be classifiable as food preparations.
HOLDING:
Alactamil is classifiable under the provision for other food
prepartions not elswhere specified or included, in subheading
2106.90.60, HTSUS. If product qualifies as a Canadian product,
under the appropriate regulations, the rate of duty is 6 percent
ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division