CLA-2 CO:R:C:F 956858 RC
D. Brooks Pavilack, Esq.
Miller & Company P.C.
2320 Commerce Tower
911 Main Street
Kansas City, Missouri 64105
RE: Classification of Boost Beverage Product
Dear Mr. Pavilack:
This is in response to your letter dated August 5,
1994, requesting the proper classification of Boost
Beverage Product ("Boost"), under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). You
submitted samples of the strawberry variety with your
request for a binding ruling.
FACTS:
Boost is a moderate-calorie, high-protein, ready-
to-drink beverage consumed by active people and those
desiring a good source of energy and nutrients. It is
a non-alcoholic water-based beverage containing sugar,
corn syrup solids, milk protein concentrate, vegetable
oils, vitamins, minerals, flavorings, emulsifiers and
other ingredients. Boost contains the three essential
macronutrients (protein, fat, and carbohydrate) and all
the essential vitamins and minerals for it to be
considered "nutritionally complete." Each eight ounce
can provides at least 20 percent of the U.S. RDAs for
protein and all vitamins and minerals. Boost will be
imported from Canada and sold primarily in four-packs.
Boost will be supplied in the following four flavors:
chocolate, mocha (coffee), vanilla, and strawberry.
ISSUE:
Whether Boost is classifiable as a beverage or a
nutritional food supplement.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken
in their appropriate order provide a framework for
classification of merchandise under the HTSUS. 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 (ENs) to the Harmonized
Commodity Description and Coding System, which
represent the official interpretation of the tariff at
the international level, facilitate classification
under the HTSUS by offering guidance in understanding
the scope of the headings and GRIs.
Upon review of the various HTSUSA chapters, it
appears that the product is potentially classified in
either chapter 22, 21 or 19. Chapter 22 provides for
beverages, spirits and vinegar. The Explanatory Notes
explain that the products of Chapter 22 constitute a
group quite distinct from the foodstuffs covered by the
other HTSUSA chapters. Chapter 22 includes products
falling into four main groups: water and other
nonalcoholic beverages; fermented alcoholic beverages;
distilled alcoholic liquids and beverages; and vinegar.
For tariff purposes, a beverage is a product which
is drinkable in its condition as imported. Strohmeyer
& Arpe Co. v. United States, 28 CCPA 34, C.A.D. 121.
However, this does not indicate that all potable
liquids are necessarily considered beverages under the
HTSUSA. The delineation of the main groups of products
which constitute a beverage in Chapter 22 corroborates
this point.
If we classify the product as a beverage in
Chapter 22 , heading 2202 would appear to be the
appropriate provision. It provides for waters,
including mineral and aerated waters, with sugar,
sweetening matter or flavored and other nonalcoholic
beverages, not including fruit or vegetable juices.
Pursuant to GRI 1, we classify the product according to
the terms of the heading. The product is not merely a
water as described in 2202, since it contains milk
protein concentrate and a substantial number of
vitamins. Thus, it must either fit the description of
an "other nonalcoholic beverage" of subheading 2202.90,
or be classified elsewhere. The Explanatory Notes to
2202 explain that the heading covers non-alcoholic
beverages such as: lemonade, orangeade and cola;
tamarind nectar; and certain other beverages ready for
consumption, such as those with a basis of milk and
cocoa.
Boost is an "other non-alcoholic beverage." The
Explanatory Notes specify types of "non-alcoholic
beverages" included in 2202, inter alia, "certain"
other beverages ready for consumption.
In HRL 950299 (December 30, 1991), Customs
classified an infant formula in heading 1901. In that
case, Customs noted that the formula was ingested in
prescribed daily dosages intended to supply an infant
with a vital food and nutrient source. Boost, instead,
is a beverage, a liquid for drinking. Although it is
stated to contain 25 percent vitamins and minerals,
Boost is not intended to be a regular diet or ingested
in lieu of meals. It is merely a beverage to satisfy
the empty feeling of an active adult who may miss a
meal because of that person's busy lifestyle.
HOLDING:
We find that Boost is classified as an other
nonalcoholic beverage under subheading 2202.90.9090,
HTSUSA. The general column one rate of duty is 0.3
cents per liter.
Sincerely,
John Durant, Director
Commercial Rulings
Division