CLA-2 CO:R:C:F 952278 LPF
Area Director
U.S. Customs Service
Room 423
6 World Trade Center
New York, NY 10048
RE: Decision on application for further review of Protest No.
1001-91-108125, filed November 14, 1991, concerning
classification of herbal and multivitamin food supplements;
Heading 2106, HTSUSA, food preparations not elsewhere
specified or included; Not 1302, vegetable saps and
extracts; Not 2103, sauces and preparations therefor, mixed
condiments and seasonings; Not 2936, provitamins and
vitamins; Not 3004, medicaments; HRL 083000
Dear Sir:
This is a decision on a protest filed November 14, 1991,
against your decision in the classification of certain
merchandise liquidated on August 16, 1991, September 6, 1991, and
October 25, 1991.
FACTS:
The subject merchandise, described as Floradix or Floravital
brand herbal and vitamin products, is imported from Germany by
Miracle Exclusives, Inc. The protestant has grouped the various
products into three categories: iron and herb products,
multivitamins, and the herbal rest product. Sample packages of
all the products were submitted to this office.
The iron and herb products include Floradix iron and herbs
liquid extract formula, Floradix iron and herbs in tablet form,
and Floravital iron and herbs liquid formula. The products
consist primarily of an aqueous herbal extract and fruit juice
concentrates in addition to iron and various vitamins, including
B1, B2, B6, and B12. The Floradix products also contain a
significant amount of yeast. The iron and herb tablets are
described as a natural dietary supplement which helps prevent
dietary iron deficiency. The protestant entered the iron and
herb products under subheading 2103.90.40, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), as "Sauces and
preparations therefor; mixed condiments and mixed seasonings;
mustard flour and meal and prepared mustard: Other: Nonalcoholic
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preparations of yeast extract (other than sauces)," at a duty
rate of 5 percent ad valorem.
The multivitamin products include the Floradix multivitamin
liquid extract formula and children's liquid multivitamin
formula. The former consists primarily of an aqueous liquid herb
extract and fruit juice concentrate in addition to vitamins A,
B1, B6, C, D, and niacinamide. The latter consists of an herbal
extract, herbal malt yeast extract, orange juice and pear juice
concentrate in addition to vitamins A, C, B1, B6, folic acid,
niacinamide, vitamin E, vitamin D, calcium, phosphorus and
magnesium. The Floradix multivitamin is described as a liquid
dietary supplement, while the children's formula is stated to
provide the nutrients essential for natural growth and to aid the
formation of healthy bone structure and tooth formation in
infants. The protestant entered the multivitamin products under
subheading 2936.90.00, HTSUSA, as "Provitamins and vitamins,
natural or reproduced by synthesis (including natural
concentrates), derivatives thereof used primarily as vitamins,
and intermixtures of the foregoing, whether or not in any
solvent: Other, including natural concentrates," at a duty rate
of 4 percent ad valorem.
The herbal rest product consists of extracts from various
herbs and includes flavoring agents as well as other substances.
It is described as an herbal dietary supplement which provides a
natural aid to relaxation and promotes deep sleep. The
protestant entered the product under subheading 1302.19.90,
HTSUSA, as "Vegetable saps and extracts...: Other: Other," at a
duty free rate.
The protestant submits that if the iron and herb products
and multivitamin products are not classifiable in subheadings
2103.90.40 or 2936.90.00, respectively, they are classifiable,
alternatively, in subheading 3004.50.50 as medicaments consisting
of mixed or unmixed products for therapeutic or prophylactic
uses, other, or in subheading 1302.19.90 as vegetable saps and
extracts, other.
You classified all the products under subheading 2106.90.60,
as "Food preparations not elsewhere specified or included: Other:
Other: Other: Other: Other," at a duty rate of 10 percent ad
valorem.
ISSUE:
Whether the iron and herb, multivitamin, and herbal rest
products are classifiable in heading 2103 as sauces, condiments
or seasonings; 2936 as vitamins or vitamin derivatives; 1302 as
vegetable saps or extracts; 3004 as medicaments; or 2106 as food
preparations.
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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. Most 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.
Iron and Herb Products
The protestant submits that the iron and herb products are
classifiable in subheading 2103.90.40, as sauces, mixed
condiments and mixed seasonings, other, nonalcoholic preparations
of yeast extract. Although two of the three products contain
yeast, this is not dispositive of the products' classification
within heading 2103. We reiterate that pursuant to GRI 1, an
article is first classified according to the terms of its
appropriate four digit heading, then according to its six and
eight digit subheading. Because these products are not sauces,
condiments or seasonings classifiable within heading 2103, they
are not classifiable in a subheading falling within 2103.
Alternatively, the protestant submits that the products are
classifiable within heading 3004, as medicaments. As evidence of
classification in 3004, the protestant states that because these
products contain sufficient iron to prevent anemia, or iron
deficiency, when taken in daily doses, the products are taken for
therapeutic or prophylactic purposes. The protestant adds that
the EN's to 2106 indicate that the heading, "excludes products
where an infusion constitutes a therapeutic or prophylactic dose
of an active ingredient specific to a particular ailment (heading
30.03 or 30.04)."
On the contrary, the EN's to 3004 indicate that the heading
excludes:
...food supplements containing vitamins or mineral
salts which are put up for the purpose of
maintaining health or well-being but have no indication
as to use for the prevention or treatment of any
disease or ailment. These products which are usually
in liquid form but may also be put up in powder or
tablet form, are generally classified in heading
21.06 or Chapter 22.
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We agree with the Customs National Import Specialist that
the presence of iron is no more compelling an argument for
classification in 3004 than is the presence of other vitamins or
minerals in quantities exceeding the Recommended Daily Allowance
(RDA). Many food supplements or food products when taken daily
ensure against a deficiency of certain minerals or vitamins which
could result in disease. However, this does not indicate that
such products are classifiable in 3004.
Customs has maintained that 3004 excludes products which are
put up for the purpose of maintaining health or well-being, but
which have no indication as to use for the prevention or
treatment of any disease or ailment. See Headquarters Ruling
Letter (HRL) 083000, issued September 19, 1990. These products
are natural dietary supplements which prevent dietary iron
deficiency (i.e, promote general health) and have no indication
as to use for the prevention of anemia or any other specific
disease or ailment.
As a final alternative, the protestant suggests
classification in heading 1302 as vegetable saps and extracts.
The EN's to 1302 state that:
[t]he vegetable saps and extracts of this heading
are generally raw materials for various manufactured
products. They are excluded from the heading when,
because of the addition of other substances, they have
the character of food preparations, medicaments, etc.
The protestant accurately states that, pursuant to Notes 1(d) and
1(f) to Chapter 13, HTSUSA, the chapter excludes vegetable saps
or extracts constituting alcoholic beverages or compound
alcoholic preparations as well as medicaments. However, these
products are but several exemplars of "food preparations"
excluded from 1302, as referred to in the EN's.
In fact, EN (16) to 2106, providing for food preparations,
states that the heading includes:
[p]reparations, often referred to as food supplements,
based [on] extracts from plants, fruit concentrates,
honey, fructose, etc. and containing added vitamins
and sometimes minute quantities of iron compounds.
These preparations are often put up in packagings
with indications that they maintain general health
or well-being....
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Although the protestant states that the products include more
than "minute quantities or iron," this does not preclude
classification in 2106. The fact that the products primarily
consist of herbal extracts and fruit concentrates, contain added
vitamins, and maintain general health or well-being indicates
that the products are classifiable in 2106. The appropriate
subheading is 2106.90.6099.
Multivitamins
The protestant submits that the multivitamin products are
classifiable in subheading 2936.90.00 as provitamins and
vitamins, derivatives thereof, other. However, EN (d) to 2936
states, in pertinent part, that the heading includes:
...products diluted in any solvent...provided that
the quantity added or the processing in no case
exceeds that necessary for their preservation or
transport and that the addition or processing does
not alter the character of the basic product and
render it particularly suitable for specific use
rather than for general use.
It is Customs position that the significant quantity of herbal
extract, fruit concentrate, and other non-vitamin ingredients
included in the products, indicates that they are not simply
vitamins or admixtures of such vitamins. We disagree with the
protestant's position that the added ingredients are merely
present to facilitate ingestion and render the multivitamins more
palatable to adults and children. The multivitamins must be
classified elsewhere.
For the reasons discussed above, the multivitamins are not
classifiable in either 3004 or 1302, but are properly classified
as food preparations in subheading 2106.90.6099.
Herbal Rest
The protestant submits that the herbal rest product is
classifiable in subheading 1302.19.90 as vegetable saps and
extracts. We note, however, that the product primarily contains
flavoring agents and other substances, in addition to various
herbs, and appears to be a dietary supplement. For the reasons
discussed above, and particularly because 1302 excludes products
which have the character of food preparations, the product is not
classifiable in 1302, but is properly classified as a food
preparation in subheading 2106.90.6099.
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HOLDING:
The iron and herb, multivitamin and herbal rest products are
classifiable in subheading 2106.90.6099, HTSUSA, as "Food
preparations not elsewhere specified or included: Other: Other:
Other: Other: Other, Other: Other: Other: Other." The general
column one rate of duty is 10 percent ad valorem.
Since the rate of duty under the classification indicated
above is the same as the liquidated rate, you are instructed to
deny the protest in full. A copy of this decision with the Form
19 should be sent to the protestant.
Sincerely,
John Durant, Director