CLA-2 CO:R:C:F 951145 ALS
Mr. Pennfield Smith
International Barbeque Time LTD.
(107) 8811 River Rd.
Richmond, B.C., Canada V6X 1Y6
RE: Flavored Barbecue Wood Chips Containing a Mixture of Wood
Shavings and a Mixture of Herbs and Spices in a Gelatin Base
Dear Mr. Smith:
This is reference to your letter of January 9, 1992, to our
New York Seaport Area Office requesting a binding ruling on the
classification of the subject product. Your request along with
the 3 samples included therewith have been referred to this
office for further consideration.
FACTS:
The product under consideration is used to flavor foods when
barbecuing them. The product is composed of wood chips and
combinations of herbs and spices in a gelatinous base. The
product is made in several flavorings. Each product unit
contains a combination of a type of wood and a mixture of herbs
and spices depending on the flavoring result desired. The
gelatinous base, which when wet weighs 1/2 ounce and when dry
weighs 1/4 ounce, is placed on a 3 ounce bed of wood shavings and
packed in a 1 inch by 5 inch aluminum pan. The pan is covered
with a paper/aluminum combination lid which is held in place by
the edges of the pan which fold over the edge of the lid. There
are 9 holes in the lid, approximately 1/8 inch in diameter, which
are covered by a label which identifies the company and the - 2 -
herb/spice contents in French and English. The product is used
for backyard barbecues. In order to use the product the user
peels off the label to expose the holes and places the aluminum
pan with its contents on the hot coals or lava rocks where it is
heated. When so heated the product smolders and smokes causing
the herb and spice flavoring and the smoke flavoring of the wood
to be carried through the exposed holes to the food on the grill.
ISSUE:
What is the classification of the product which is composed
of 2 different component materials which when heated emit 2
different flavorings which are imparted to food?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) 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 relevant section and chapter notes. If GRI 1 fails to
classify the goods and if the heading and legal notes do not
otherwise require, the remaining GRI's are applied taken in
order.
In reviewing the facts in this case, we did not find a
subheading which specifically covered the product. The product,
depending on whether it was considered a mixed seasoning, a food
preparation, a mixture of odoriferous substance, a chemical
preparation or a wood product could be classified in Chapters 21,
33, 38 or 44, HTSUSA, respectively.
We note that, while the product does contain herbs and
spices and imparts those flavorings along with a smoke flavoring
from the wood to the food being grilled, none of the components
of the product actually touches the food being grilled. This
product thus differs from herbs, spices and vegetables, which are
normally used to impart flavoring to food in that it is not
topically applied to the food. Historically, this has been
considered a prerequisite for classifying merchandise in Chapter
21, HTSUSA. Also, based on a discussion with the Food and Drug
Administration (FDA), we understand that such a product would not
meet the requirements of section 321(f), title 21, United States
Code (21 U.S.C. 321(f)) and would not be considered a food item
under the jurisdiction of the FDA.
- 3 -
We considered the possible application of Heading 3302,
HTSUSA, regarding mixtures of odoriferous substances. Although
at least some samples of the product appear to meet some of the
basic requirements of that heading, i.e. mixtures of essential
oils, mixtures of resinoids, the product at hand is a finished
product, ready to be used in barbecues and, thus, does not meet
the provision of Heading 3302, HTSUSA, which specifies that such
substances are "of a kind used as raw materials in industry." In
other words, products falling under this provision are
intermediate products which are used to make finished products
and are not themselves finished products.
We next considered the possible application of Heading 3823,
HTSUSA, which generally provides for products of the chemical
industry. We noted that the products of Chapter 38, HTSUSA, with
few exceptions, were generally of the type utilized in industry
and not the type related to food components. This is in line
with our aforementioned conclusion that the product does not come
within the scope of food or foodstuffs. While the provisions of
this chapter are very broad and could possibly cover the product,
it is not clear that the product is properly classifiable in this
chapter. Accordingly, we felt that further classification
possibilities should be explored.
Accordingly, we next considered the provisions of Chapter 44
related to articles of wood. In this regard we noted that the
purpose of the product is to flavor food. There are two
components that flavor the food, a gelatinous base containing
herbs and spices and wood. There does not appear to be any
quantitative distinction as to the degree to which either
component imparts its flavor to the food. In considering the
weight of the components of the product, we note that over 80
percent of flavoring components in the product is wood, i.e. 3
ounces of a 3-1/2 ounce total. In physically examining the
components one notes that the wood is the most prominent thereof.
In considering the possible headings under which the product
might be classified we have, based on the above reasoning,
concluded that the product should be classified under either
Heading 3823 or Heading 4421. Since neither heading specifically
describes the product, classification in accordance with GRI 1 is
not possible. Accordingly, we referred to GRI 2 which provides
that the classification of goods consisting of more than one
material or substance shall be according to the principles of
GRI 3. Since each of the competing headings only refer to a part
of the product and one is not more specific than the other, - 4 -
classification under GRI 3(a) is not possible. We next referred
to GRI 3(b) which provides that composite goods consisting of
different materials shall be classified according to the product
which gives them their essential character. Since both the herbs
and spices and the wood provide flavoring, the primary purposes
of the article, we cannot say that essential character of the
product is either of those components even though the wood, by
weight, makes up most of the product. Accordingly, we turned to
GRI 3(c) which provides that when goods cannot be classified by
reference to GRI 3(a) or (b), they shall be classified under the
heading which occurs last in numerical order among those which
equally merit consideration. Thus, the product would be
classified in Chapter 44, HTSUSA.
HOLDING:
Barbecue smoking chips of wood which are combined with a
gelatinous base containing herbs and spices to provide flavoring
to food being grilled are classifiable under subheading
4421.90.9040, HTSUSA, as Other articles of wood, other, other and
are dutiable at a general rate of duty of 5.1 percent ad valorem.
The subject barbeque smoking chips, if the product of
Canada, are , in accordance with General Note 3(c)(vii)(B),
HTSUSA, eligible for a reduced rate of duty, upon compliance with
the provisions of the United States - Canada Free Trade Agreement
(CFTA) and section 10.301 et seq., Customs Regulations (19 CFR
10.301 et seq.).
Sincerely,
John Durant, Director
Commercial Rulings Division