CLA-2 RR:CR:GC 958150 RTR
Mr. Tom Czubak
Warner Lambert International Operations
P.O. Box 577
Morris Plains, New Jersey 07950
RE: Hall's Vitamin C Drops; subheading 1704.90.35, HTSUS; NY
832151 revoked
Dear Mr. Czubak:
This is in reference to NY 832151, which was issued to you
on September 21, 1988, pursuant to your request for a binding
ruling as to the tariff classification of "Hall's Vitamin C
Drops" (hereinafter referred to as "HVCDs") under Harmonized
Tariff Schedule of the United States (HTSUS). In NY 832151,
Customs determined that HVCDs were classifiable in subheading
3004.50.5010, HTSUS, which provides for 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:... Other
medicaments containing vitamins or other products of heading
2936: Containing vitamins synthesized wholly or in part from
aromatic or modified industrial organic compounds: Other: For
veterinary use Other: Single vitamins: Combined with minerals or
other nutrients, 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), a notice of proposed revocation of NY 832151 was
published on February 18, 1998, in the Customs Bulletin, Volume
32, Number 7. One comment was received in response to this
notice.
FACTS:
The merchandise consists essentially of sucrose and glucose
sugar flavorings, and colorings, but also supplies 60 mg of
Vitamin C per drop. The manufacturer advertises this quantity as
being 100% of the U.S. Recommended Daily Allowance. The
merchandise is sold in a variety of flavors.
The provisions under consideration are as follows:
1704 Sugar confectionary (including white chocolate),
not containing cocoa:
1704.10 Chewing gum, whether or not sugar-coated
1704.90 Other:
Confections or sweetmeats ready for
consumption:
Other:
1704.90.25 Cough drops
1704.90.35 Other.
* * * *
2936 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:
Vitamins and their derivatives, unmixed:
2936.27.00 Vitamin C (Ascorbic acid) and its
derivatives
* * * *
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:...
3004.50 Other medicaments containing vitamins or other
products of heading 2936:
Containing vitamins synthesized wholly or in
part from aromatic or modified industrial
organic compounds:
3004.5050 Other
Other:
Single vitamins:
3004.5050.10 Combined with minerals or
other nutrients
ISSUE:
Whether sugar-based HVCDs are classifiable as "confections
or sweetmeats ready for consumption" of chapter 17, HTSUS, as
"vitamins" of chapter 29, HTSUS, or as "medicaments" of chapter
30, 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) constitute 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).
In NY 832151, Customs classified HVCDs in subheading
3004.50.5010, HTSUS, based upon the belief that Vitamin C
imparted therapeutic or prophylactic character to the
merchandise. Additional research indicates that Vitamin C has
not been shown in the U.S. to have substances which imbue it with
therapeutic or prophylactic properties or uses. Therefore, HVCDs
are not classifiable as medicaments of chapter 30, HTSUS, and NY
832151 must be revoked.
At its Eleventh Session on September 16, 1993, the
Harmonized System Committee (HSC) greatly limited the list of
ingredients which are considered to possess "therapeutic or
prophylactic" value. This change was adopted in the form of two
amendments to the ENs (Doc. 38.100)). For example, despite the
existence of significant scientific evidence indicating that
menthol possesses antitussive properties, according to the ENs to
chapter 3004, it is now considered a mere "flavoring agent", and
is not included among the goods classifiable in chapter 30,
HTSUS. Rather, the Vitamin C contained in HVCDs is akin to other
common lozenge additives which seem to possess curative
properties, but do not satisfy the new, higher standard for
"therapeutic or prophylactic" goods.
Additionally, EN 30.04, states, in pertinent part, that:
This heading includes pastilles, tablets, drops, etc.,
of a kind suitable only for medicinal purposes, such as
those based on sulphur, charcoal, sodium tetraborate,
sodium benzoate, potassium chlorate or magnesia.
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) (italics added)
fall in heading 17.04.
Pastilles, tablets, or drops, suitable only for medicinal
purposes, are normally dispensed with a doctor's prescription, or
are only purchased with the intention of curing an ailment.
HVCDs are sold in a variety of stores together with other sugar-confectionary products "over the counter" without a prescription.
Therefore, Customs remains of the opinion that the merchandise is
classifiable in heading 1704, HTSUS.
The commentor objected to this position and presented
different evidence in support of the therapeutic or prophylactic
character of Vitamin C. Citing a chemical dictionary and the
Merck Manual, the commentor suggests that Vitamin C "cures scurvy
and increases resistance to infection." However, the exterior
label on HVCDs states: "Hall's Vitamin C Drops are a delicious
way to give your family 100% of the Daily Value of Vitamin C...
They taste great and soothe your throat... Assorted Citrus Hall's
Vitamin C Drops are available in the following flavors: Lemon,
Sweet Grapefruit, and Orange." From this it is clear that,
although the merchandise may possess medicinal properties, it is
being marketed as much for its flavor as for its medicinal value.
Thus, it cannot be said that this merchandise is suitable only
for medicinal purposes.
Alternatively, the commentor contends that if the
merchandise is not classifiable as a medicament of chapter 30,
HTSUS, it is classifiable as a vitamin of chapter 29, HTSUS. We
disagree.
Subheading 2936.27.00, HTSUS, provides for 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: Vitamins and their derivatives, unmixed: Vitamin C
(Ascorbic acid) and its derivatives.
In addition to Vitamin C, HVCDs contain sugar, glucose
syrup, flavorings and colorings. According to the ENs to chapter
29, HTSUS, at page 342, "[s]eparate chemically defined compounds
containing other substances deliberately added during or after
their manufacture are excluded from this chapter. Accordingly, a
product consisting of saccharin mixed with lactose, for example,
to render the product suitable for use as a sweetening agent is
excluded." The lactose-saccharin product envisioned in the EN,
excludable from chapter 29 due to the presence of a sweetener, is
analogous to HVCDs. They are excluded from classification in
chapter 29, because they contain other substances (sugars,
flavorings and colorings) deliberately added during their
manufacture.
Subheading 1704.90.25, HTSUS, covers sugar confectionary
(including white chocolate), not containing cocoa: Chewing gum,
whether or not sugar-coated; Other: Confections or sweetmeats
ready for consumption: Candied nuts; Other: Cough drops; Other.
Subheading 1704.90.35, HTSUS, is a subsequent basket provision
for merchandise not classifiable under subheading 1704.90.25,
HTSUS.
Chapter 17 Note 11, HTSUS, provides as follows: for purposes
of subheading 1704.90.25, HTSUS, "cough drops " must contain a
minimum of 5 mg per dose of menthol, of eucalyptol, or of a
combination of menthol and eucalyptol. Since they contain no
menthol or eucalyptol, HVCDs are not "cough drops" for HTSUS
purposes.
The decision in NY 832151 was based on Customs belief that
HVCDs had therapeutic or prophylactic properties. Since this is
not the case, the merchandise cannot be classified in chapter 30,
HTSUS. Likewise, the presence of sugars, flavorings and
colorings renders them ineligible for classification in chapter
29, HTSUS. Therefore, HVCDs are classifiable as sugar
confections of chapter 17, HTSUS. The lack of menthol,
eucalyptol, or a combination thereof in the merchandise prevents
its classification in subheading 1704.90.25, HTSUS. Sugar-based
drops containing Vitamin C, but no menthol or eucalyptol, are
therefore classifiable in the basket provision, subheading
1704.90.35, HTSUS, which provides for sugar confectionary
(including white chocolate), not containing cocoa: Chewing gum,
whether or not sugar-coated; Other: Confections or sweetmeats
ready for consumption: Candied nuts; Other: Cough drops; Other.
HOLDING:
Pursuant to GRI 1, HVCDs are classifiable in subheading
1704.90.35, HTSUS, covering sugar confectionary (including white
chocolate), not containing cocoa: Chewing gum, whether or not
sugar-coated; Other: Confections or sweetmeats ready for
consumption: Candied nuts; Other: Cough drops; Other; Other. The
rate of duty of duty is 6.1% ad valorem (1998). Accordingly, NY
832151 is revoked.
EFFECT ON OTHER RULINGS:
NY 832151, dated August 12, 1992, 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