CLA-2 CO:R:C:F 951849 LPF
2103.90.6070
Ms. Twyla J. Hanes
Grupo Dilcomer, S.A. de C.V.
Carretera Mexico-Queretaro Km. 37.5
Condominio Industrial Cuamatla Bodega No. 9
Cuautitlan Izcalli, Estado de Mexico, Mexico 54730
RE: Soft and liquid candies in 1704, HTSUSA, as sugar
confectionery; powdered drink mixes in 1701, HTSUSA, as cane
or beet sugar; powdered dip mixes in 2103, HTSUSA, as mixed
condiments and mixed seasonings; picante sauce in 2103,
HTSUSA, as sauces and preparations therefor. Country of
origin marking exception 19 CFR 134.32(d); ultimate
purchaser under 19 CFR 134.1(d).
Dear Ms. Hanes:
This is in response to your letter of May 4, 1992 submitted
on behalf of Grupo Dilcomer. Your inquiry requests the proper
classification and marking of a variety of food products under
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA). You submitted samples and ingredient breakdowns with
your request for a binding ruling.
FACTS:
The products include soft candies, liquid candies, powdered
drink mixes, powdered dip mixes and picante sauces. You state
that you intend to send boxes, from Mexico, containing the
various products to prospective U.S. companies, hoping they will
request that Dilcomer produce similar products. The U.S.
companies will package the products under their private label, in
English. These samples, labeled in Spanish, are not for sale or
resale but only are to be used in demonstrating the quality of
your products.
The soft candies, called "Swits", contain sugar, corn syrup,
water, comestible vegetable fat, citric acid, maltodextrin,
grenadine and artificial colors and flavors. The flavors will
include grape, orange, strawberry, pineapple and peach/mango.
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The liquid candy brands, "Abejitas" and "Bug Juice", contain
sugar, corn syrup, water, maltodextrin, corn starch, citric acid,
artificial colors and flavors. The flavors are lime, grape,
orange, strawberry and pineapple.
The powdered drink mixes, called "Flavoraid", all contain
sugar and citric acid as main ingredients. The drink mixes are
semi-sweetened tamarind and Jamaica flavored and unsweetened
strawberry, grape, orange and pineapple flavored.
The powdered dip mixes are called "Dip Sabritas." Bacon-
cheese flavor contains powdered cheese, corn flour, modified
starch, iodized salt, hydrolyzed vegetable proteins, sugar,
monosodium glutamate, parsley and artificial liquid essence for
seasoning dressings. Green-onion flavor contains dehydrated
onion, iodized salt, sugar, hydrolyzed vegetable proteins,
monosodium glutamate and spices. Chile chipotle flavor contains
corn flour, powdered chipotle chile pepper, powdered milk,
iodized salt, guar gum, powdered dehydrated onion, hydrolyzed
vegetable proteins, monosodium glutamate, dehydrated parsley and
white pepper.
The liquid picante sauce, called "Sabritas Salsa Picante,"
has a salsa chile chipotle flavor. It contains purified water,
vinegar, chipotle chile pepper, lime juice, refined sugar,
iodized salt, spices and 0.1 percent sodium benzoate as a
preservative.
ISSUES:
Whether the food products entering the U.S., sent directly
to companies as samples for soliciting business orders, and not
for sale or resale, are dutiable pursuant to their applicable
HTSUSA subheadings; and whether, when entered in boxes marked
with the country of origin, the products are excepted from
individual marking under 19 CFR 134.32(d).
LAW AND ANALYSIS:
Classification of food products
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. The Explanatory Notes (EN's) to the
Harmonized Commodity Description and Coding System, which
represent the official interpretation of the tariff at the
international level, facilitate classification under the HTSUSA
by offering guidance in understanding the scope of the headings
and GRI's.
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The food products all are classifiable by applying GRI 1,
that is, according to the terms of the applicable heading.
Heading 1704 provides for sugar confectionery not containing
cocoa. The EN's to 1704 indicate that the heading includes,
inter alia, caramels and candies. Accordingly, the soft and
liquid candies are classifiable in 1704.
Heading 1701 provides for cane or beet sugar in solid form.
EN(1) to 2106 explains that powders which have the character of
flavored or colored sugars used for the preparation of lemonade
and the like, are included in either heading 1701 or 1702. The
powdered drink mixes, thus, are classifiable in 1701.
Heading 2103 provides for sauces and preparations therefor;
mixed condiments and mixed seasonings. The EN's to 2103 indicate
that the heading covers preparations, generally of a highly
spiced character, used to flavor certain dishes and made from
various ingredients. Accordingly, the liquid picante sauce is
classifiable in heading 2103. Additionally, the EN's state that
the heading includes mixed condiments and mixed seasonings which
contain one or more flavoring or seasoning substances of Chapters
other than Chapter 9, such that the mixture no longer has the
essential character of a spice within the meaning of Chapter 9.
This being the case, the powdered dip mixes also are classifiable
in heading 2103.
Country of origin marking
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304) provides that, unless excepted, every article of foreign
origin imported into the United States shall be marked in a
conspicuous place as legibly, indelibly and permanently as the
nature of the article (or container) will permit, in such a
manner as to indicate to the ultimate purchaser in the United
States the English name of the country of origin of the article.
This statute was enacted so that the ultimate purchaser would
know where the imported goods were produced, in the event that
such marking would influence the purchaser's decision to buy the
merchandise. Part 134, Customs Regulations (19 CFR 134),
implements the country of origin marking requirements and
exceptions of 19 U.S.C. 1304.
Included among the exceptions to country of origin marking
is 19 U.S.C. 1304 (a)(3)(D), also provided for in section
134.32(d), Customs Regulations (19 CFR 134.32(d)). Pursuant to
this provision, Customs may except from individual marking those
articles for which the marking of their containers will
reasonably indicate the articles' country of origin. This
exception may apply if the articles are imported in properly
marked containers and if Customs officials at the port of entry
are satisfied that the "ultimate purchasers" will receive the
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articles in their original, unopened and properly marked
containers. See HRL 734494, issued February 24, 1992.
The "ultimate purchaser" is defined, generally, as the last
person in the United States who receives the article in the form
in which it is imported. Section 134.1(d), Customs Regulations
(19 CFR 134.1(d)). Based on the information provided, and in
light of the fact that the food product samples will not be for
sale or resale, it appears the U.S. companies to which the
samples will be distributed are the last parties to receive the
articles and, therefore, are the ultimate purchasers.
Accordingly, 19 CFR 134.32(d) applies, and the food products may
be excepted from individual country of origin marking as set
forth below.
HOLDING:
Classification
The soft candies ("Swits") and liquid candies ("Abejitas"
and "Bug Juice") are classifiable in subheading 1704.90.20 as,
"sugar confectionery (including white chocolate), not containing
cocoa: Other: Other." The general column one rate of duty is 7
percent ad valorem.
The powdered drink mixes ("Flavoraid") are classifiable in
subheading 1701.91.4000 as, "cane or beet sugar and chemically
pure sucrose, in solid form: Other: Containing added flavoring or
coloring matter: Containing added flavoring matter whether or not
containing added coloring." The general column one rate of duty
is 6 percent ad valorem.
The powdered dip mixes ("Dip Sabritas"), if containing over
10 percent sugar, are classifiable in subheading 2103.90.6062
as, "sauces and preparations therefor; mixed condiments and mixed
seasonings;...Other: Other, Mixed condiments and mixed
seasonings: Provided for in subheading 9904.60.60." Presently,
subheading 9904.60.60 provides for a quota quantity limit of
76,203 metric tons. If the powdered dip mixes contain less than
10 percent sugar, they are classifiable in subheading
2103.90.6063 as, "sauces and preparations therefor; mixed
condiments and mixed seasonings;...Other: Other, Mixed condiments
and mixed seasonings: Other." In both cases, the general column
one rate of duty is 7.5 percent ad valorem.
The liquid picante sauce ("Sabritas Salsa Picante") are
classifiable in subheading 2103.90.6070 as, "sauces and
preparations therefor; mixed condiments and mixed
seasonings;...Other: Other, Other: Containing cane and/or beet
sugar." The general column one rate of duty is 7.5 percent ad
valorem.
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It should be noted, however, that products classifiable in
any of these subheadings are eligible for duty-free treatment
under the Generalized System of Preferences (GSP) provided they
meet the requirements of General Note 3(c)(ii), HTSUSA.
Marking
The food products may be excepted from individual country of
origin marking pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR
134.32(d), as long as they are imported in a properly marked
container and Customs officials at the port of entry are
satisfied that the products will be used only in the manner
described above and the ultimate purchasers will receive the
merchandise in their original, unopened and properly marked
containers.
Sincerely,
John Durant, Director
Commercial Rulings Division