CLA-2 RR:CR:GC 957394 RTR
Mr. John M. Poole
John A. Steere Co.
28 South Second Street
Philadelphia, Pennsylvania 19106
RE: "Fisherman's Friend" Mentholated lozenges; headings 1704,
3004; subheadings 1704.90, 1704.90.25, 1704.90.35,
3004.90.30; chapter note 17.11; EN 30.04; NY 837090 revoked
Dear Mr. Poole:
This is in reference to NY 837090, which was issued to you
on February 28, 1989, in response to your request of February 13,
1989, regarding the tariff classification of "Fisherman's Friend"
mentholated lozenges under the Harmonized Tariff Schedule of the
United States (HTSUS).
Pursuant to section 625(c)(1)), Tariff Act of 1930 (19
U.S.C. 1625(c)(1), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act, Pub L. . 103 - 182, 107 Stat. 2057, 2186
(1993), notice of proposed revocation of NY 837090 was published
on June 7, 1995, in the Customs Bulletin, Volume 29, Number 23.
FACTS:
The merchandise is known commercially as "Fisherman's
Friend" mentholated lozenges, and is composed of menthol
(0.900%), eucalyptus oil (0.153%), tincture of capsicum (0.020%),
licorice (7.317%), gum tragacanth (0.330%), dextrin (2.250%),
sugar (87.000%), and water (2.030%). It is manufactured in the
U.K. by Lofthouse of Fleetwood, Ltd.
ISSUE:
Whether a mentholated lozenge, which lacks a substance with
medicinal properties, is classifiable in heading 1704, HTSUS, or
in heading 3004, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitutes the official interpretation
of the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
The tariff provisions under consideration are as follows:
1704 Sugar confectionary (including white chocolate),
not containing cocoa:
1704.90 Other:
Confections of sweetmeats ready for
consumption:
Other:
1704.90.25 Cough drops
1704.90.35 Other
* * * *
3004 Medicaments (excluding goods of heading 3002, 3005
or 3006) consisting of mixed or unmixed products
for therapeutic or prophylactic uses, put up in
measured doses or in forms or packings for retail
sale
3004.90.30 Other
* * * *
Chapter 17 Note 11
For purposes of subheading 1704.90.25, "cough drops " must
contain a minimum of 5 mg per dose of menthol, of
eucalyptol, or of a combination of menthol and eucalyptol.
* * * *
EN 30.04 at page 469
"However, preparations put up as throat pastilles or cough
drops, consisting essentially of sugars (whether or not with
other food stuffs such as gelatin, starch or flour) and
flavouring agents (including substances having medicinal
properties, such as benzol alcohol, menthol, eucalyptol, and
tolu balsam) fall in Heading 1704. Throat pastilles
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."
On February 28, 1989, Customs issued NY 837090, classifying
"Fisherman's Friend" mentholated lozenges in subheading
3004.90.30, HTSUS, which provided for medicaments... consisting
of mixed or unmixed products for therapeutic or prophylactic
uses, put up in measured doses or in forms or packings for retail
sale: other. Subsequently, the definition of cough drops, or
throat pastilles, contained in the Explanatory Notes were revised
to read: "However, preparations put up as throat pastilles or
cough drops, consisting essentially of sugars (whether or not
with other food stuffs such as gelatin, starch or flour) and
flavouring agents (including substances having medicinal
properties, such as benzol alcohol, menthol, eucalyptol, and tolu
balsam) fall in Heading 1704. Throat pastilles 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."
EN 30.04 at page 469.
In view of the ENs, "Fisherman's Friend" mentholated
lozenges could no longer be classified as a medicament of chapter
30, HTSUS, because they lack a medicinal substance.
Additionally, the flavoring agents, menthol and eucalyptus oil,
are not classifiable as medicaments in heading 3004, HTSUS.
Therefore, on June 7, 1995, a notice of proposed revocation of NY
837090 was published in the Customs Bulletin, Volume 29, Number
23. The only comment received in response to the notice was
subsequently withdrawn.
"Fisherman's Friend" mentholated lozenges are classifiable
in subheading 1704.90, HTSUS, which provides for sugar
confectionary (including white chocolate), not containing cocoa:
other. Mentholated lozenges containing a minimum of 5 mg per
dose of menthol, eucalyptol, or of a combination of both, are
cough drops classifiable in subheading 1704.90.25, HTSUS,
covering Sugar confectionary (including white chocolate), not
containing cocoa: Other: Confections of sweetmeats ready for
consumption: Other: Cough drops. Mentholated lozenges which do
not contain at least 5 mg per dose of these ingredients are
classifiable in subheading 1704.90.35, HTSUS, for Sugar
confectionary (including white chocolate), not containing cocoa:
Other: Confections of sweetmeats ready for consumption: Other:
Cough drops; Other.
HOLDING:
Pursuant to GRI 1, HTSUS, "Fisherman's Friend" mentholated
lozenges are classifiable in subheading 1704.90, HTSUS, which
provides for sugar confectionary (including white chocolate), not
containing cocoa: other. Mentholated lozenges containing a
minimum of 5 mg per dose of menthol, eucalyptol, or of a
combination of both, are cough drops classifiable in subheading
1704.90.25, HTSUS, covering Sugar confectionary (including white
chocolate), not containing cocoa: Other: Confections of
sweetmeats ready for consumption: Other: Cough drops.
Mentholated lozenges which do not contain at least 5 mg per dose
of these ingredients are classifiable in subheading 1704.90.35,
HTSUS, for Sugar confectionary (including white chocolate), not
containing cocoa: Other: Confections of sweetmeats ready for
consumption: Other: Cough drops; Other.
EFFECT ON OTHER RULINGS:
NY 837090, dated February 28, 1989, is revoked. In
accordance with 19 U.S.C. 1625(C)(1), this ruling will become
effective 60 days after its publication in the Customs Bulletin.
Publication of rulings or decisions pursuant to 19 U.S.C.
1625(C)(1) does not constitute a change of practice or position
in accordance with section 177.10(c)(1), Customs Regulations (19
CFR 177.10(c)(1)).
Sincerely,
John Durant, Director
Commercial Rulings Division