HQ 954615
December 10,1993
CLA-2 CO:R:C:F 954615 JGH
Peter S. Reichertz, Esq.
Arent Fox Kintner Plotkin & Kahn
1050 Connecticut Aveue, NW
Washington, D.C. 20036-5339
RE: Classification of Ricola Sugar Free Throat Drops
Dear Mr. Reichertz:
Your letter of June 14, 1993, concerns the classification
under the Harmonized Tariff Schedule of the United States (HTSUS)
of a throat drop product produced by Ricola Ag of Switzerland:
Ricola Sugar Free Throat Drops.
FACTS:
The product is said to be a lozenge designed to alleviate
sore throat pain, and to consist principally of isomalt (over 95
percent) and menthol. Isomalt is described as a sugar alcohol
substance, similar to sorbitol and mannitol, prepared by
enzymatic rearrangement of sucrose.
ISSUE:
Classification of sugar-free throat drops in the HTSUS.
LAW AND ANALYSIS:
It is your opinion that, based on the Explanatory Notes
(ENs) to Heading 1704, the product is classifiable as a
medicament in Heading 3004, HTSUS, rather than a confectionery in
Heading 1704, HTSUS. - 2 -
Recently, however, the Harmonized System Committee revised
the Explanatory Notes to Headings 1704 and 3004 to which you
refer. They now read as follows:
Heading 1704:
"(v) Preparations put up as throat pastilles or cough drops,
consisting essentially of sugars (whether or not with other
foodstuffs such as gelatin, starch or flour) and flavoring agents
(including substances having medicinal properties, such as benzyl
alcohol, menthol, eucalyptol and tolu balsam). However, throat
pastilles or cough drops which contain substances having
medicinal properties, other than flavouring agents, fall in
Chapter 30, provided that the proportion of those substances in
each pastille or drop is such that they are thereby given
therapeutic or prophylactic uses."
Heading 3004:
"However, preparations put up as throat pastilles or cough
drops, consisting essentially of sugars (whether or not with
other foodstuffs such as gelatin, starch or flour) and flavouring
agents (including substances having medicinal properties, such as
benzyl alcohol, menthol, eucalyptol and tolu balsam) fall in
Heading 1704. Throat pastilles or cough drops containing
substances having medicinal properties, other than flavouring
agents, remain classified in this heading when put up in measured
doses or in forms or packings for retail sale, provided that the
proportion of those substances in each pastille or drop is such
that they are thereby given therapeutic or prophylactic uses."
Therefore, in view of the revised definitions in the ENs of
cough drops or throat pastilles, a drop containing a sweetener
and a flavouring agent, such as the one here, since it lacks a
medicinal substance, in addition to a flavouring agent, would not
be classifiable as a medicament in Heading 3004.
Since the lozenges contain over 95 percent of a sugar
substitute, they are not classifiable as a sugar confectionery in
heading 1704, since Chapter 17 covers sugars other than the
chemically pure sugars (other than sucrose, lactose, glucose or
fructose) or sugar substitutes.
Thus, drops or lozenges of this type, since they are not
classifiable in Headings 1704 or 3004, are classifiable as other
food preparations, not elsewhere specified or included, in
subheading 2106.90.6599, HTSUS.
- 3 -
HOLDING:
Ricola Sugar Free Throat Drops, described above, are
classifiable in subheading 2106.90.6599, HTSUS. The rate of duty
is 10 percent ad valorem.
Sincerely,
John Durant, Director