CLA-2 RR:CR:GC 959099 ptl
Area Director of Customs
New York - JFK Area
Bldg #77
Jamaica, NY 11430
Re: IA 60/95; Ginkgo Biloba (Dimeric) Biflavonoid PHYTOSOME ,
Ginkgo Biloba PHYTOSOME , and Escin/ -sitosterol PHYTOSOME .
Dear Area Director:
This is in response to your memorandum of November 14, 1995
(CLA-2-K:TC:A2 KC), forwarding a request for Internal Advice (IA
60/95) submitted by counsel for Lipo Chemicals, Inc., concerning
the classification of the above products under the Harmonized
Tariff Schedule of the United States (HTSUS). Because all
entries which are the subject of this Internal Advice were made
in 1994, references in this decision will be to the 1994 HTSUS.
FACTS:
Ginkgo Biloba Dimeric Biflavonoid PHYTOSOME , Ginkgo Biloba
PHYTOSOME , and Escin/ -sitosterol PHYTOSOME are all
preparations imported to be used in cosmetics. The merchandise
was invoiced as botanical extracts and entered in subheading
1211.90.8090, HTSUS, as other plants or parts of plants of a kind
used primarily in perfumery, fresh or dried, whether or not cut,
crushed or powdered: other: other: other. Customs classified the
Ginkgo products under the provision for other chemical products
and preparations of the chemical or allied industries, not
elsewhere specified or included; other mixtures containing 5
percent or more by weight of aromatic or modified aromatic
substances: other, in subheading 3823.90.2700, HTSUS. The
Escin/ -sitosterol PHYTOSOME was classified under the provision
for other chemical products and preparations of the chemical or
allied industries, not elsewhere specified or included; other:
other: other, in subheading 3823.90.5050, HTSUS.
In addition to arguing in support of the invoiced
classification offered by the importer, counsel for the importer
is proposing three additional, alternative classifications for
the merchandise.
If Customs does not agree that the articles should be
classified in heading 1302, HTSUS, as vegetable saps and
extracts, counsel's next alternative classification is in heading
3003, HTSUS, as a medicament. Should that heading be improper,
counsel suggests that the articles be classified in heading 2938,
HTSUS, which provides for "Glycosides, natural or reproduced by
synthesis, and their salts, ethers, esters and other
derivatives:"
ISSUE:
Whether the merchandise is classifiable under the provision
for other plants or parts of plants of a kind used primarily in
perfumery, fresh or dried, whether or not cut, crushed or
powdered, other in subheading 1211.90.8090, HTSUS, or as other
vegetable saps and extracts; pectin substances, pectinates and
pectates; agar-agar and other mucilages and thickeners, whether
or not modified, derived from vegetable products; other vegetable
saps and extracts, in subheading 1302.19.9040, HTSUS, or
alternatively in heading 3003 or 3004, HTSUS, as medicaments or
products having therapeutic or prophylactic uses; or heading
2938, HTSUS, for glycosides; or as chemical products and chemical
or other preparations in heading 3823, HTSUS?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of
the HTSUS is such that virtually all 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. In the event that the goods cannot be classified
solely on the basis of GRI 1, and if the headings and legal notes
do not otherwise require, the remaining GRIs may then be applied
in order.
In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized. The Explanatory Notes (ENs), although not dispositive
or legally binding, provide a commentary on the scope of each
heading of the HTSUS, and are generally indicative of the proper
interpretation of these headings. See T.D. 89-80, 54 Fed. Reg.
35127, 35128 (August 23, 1989).
The following headings are under consideration:
1211 Plants and parts of plants (including seeds and
fruits), of a kind used primarily in perfumery, in
pharmacy or for insecticidal, fungicidal or similar
purposes, fresh or dried, whether or not cut, crushed
or powdered:
* * *
1211.90 Other:
* * *
1211.90.80 Other
* * *
1211.90.8090 Other.
* * * * *
1302 Vegetable saps and extracts; pectic substances,
pectinates and pectates; agar-agar and other mucilages
and thickeners, whether or not modified, derived from
vegetable products:
Vegetable saps and extracts:
* * *
1302.19 Other:
Ginseng; substances having anesthetic,
prophylactic or therapeutic properties:
* * *
1302.19.40 Other.
* * * * *
2938 Glycosides, natural or reproduced by synthesis, and
their salts, ethers, esters and other derivatives.
* * *
2938.90.00 Other.
* * * * *
3003 Medicaments (excluding goods of heading 3002, 3005 or
3006) consisting of two or more constituents which have
been mixed together for therapeutic or prophylactic
uses, not put up in measured doses or in forms or
packages for retail sale:
* * *
3003.90.00 Other.
* * * * *
3823 Prepared binders for foundry molds or cores; chemical
products and preparations of the chemical and allied
industries (including those consisting of mixtures of
natural products), not elsewhere specified or included;
residual products of the chemical or allied industries,
not elsewhere specified or included:
* * *
3823.90 Other.
Other.
Mixtures containing 5 percent or more by
weight of one or more aromatic or
modified aromatic substances:
* * *
3823.90.2700 Other.
* * *
3823.90.5000 Other.
* * *
3823.90.5050 Other.
At the time of importation, the importer claimed the
products were classified in heading 1211, HTSUS, other plants or
parts of plants of a kind used in perfumery, in pharmacy or
similar purposes. Because EN 12.11 states that "... the heading
excludes such products consisting of plants or parts of plants
... of different species ... or consisting of plants or parts of
plants of a single or different species mixed with other
substances, such as one or more plant extracts..." this
classification was rejected.
The first alternative offered by counsel is in heading 1302,
HTSUS, as vegetable extracts. Counsel asserts that the ENs to
heading 1302 allow for extracts of this type to be classifiable
under this heading, even if they are combined with inert
substances. Counsel also contends that the fact that the
extraction process results in a high level of purity does not
remove it from this classification. It is further argued that
GRI 2(b), allows for mixtures of this type to be classifiable in
heading 1302, HTSUS, because, it is claimed, that one of the
components of the Phytosome (the extract) is referred to in the
heading of chapter 13.
The manufacturer's materials provided by counsel claim that
the leaves of the Gingko biloba L. contain a complex mixture of
flavonoids and terpenes which are primarily responsible for its
pharmacological activity. In the PHYTOSOME form, they are
described as an original complex between the purified flavonoids
extracted from the gingko leaves and soybean phospholipids. The
Gingko Biloba PHYTOSOME is used in cosmetic gels and emulsions.
The extract is also said to be sold in tablet or solution form,
as the flavonoids are claimed to be used in the treatment of
vascular disease, and are said to possess vasokinetic/vasomotor
properties. A production flowchart for the Gingko Biloba
products shows that the Gingko Biloba leaves are ground, then go
through an acetone-water extraction and several concentration,
filtration, and dilution processes before being dried, milled,
mixed and sieved.
The manufacturer's materials in regard to Escin/ -sitosterol
PHYTOSOME , describe it as a ternary complex among Escin/ -sitosterol and soybean phospholipids. The Phytosome molecule is
said to be a chemical which enhances the effectiveness of Escin
on the skin. It is said to be normally used in gels and
emulsions. A production flowchart shows that Escin is dissolved
in ethyl acetate containing soybean phospholipids plus -sitosterol. The mixture is then heated, with the concentration
yielding a soft extract, which is then dried, milled, mixed and
sieved to arrive at the final product.
The Gingko Biloba PHYTOSOME molecule is a chemical complex
of the gingko flavonoids and the phospholipids. This complex is
claimed to enhance the functionality of the flavonoids, which are
aromatics, resulting in a product which is longer lasting, thus
increasing its effectiveness on the skin.
The ENs to heading 1302 state that the heading covers saps
and extracts (vegetable products usually obtained by natural
exudation or by incision, or extracted by solvents), provided
that they are not specified or included in more specific
headings. The ENs go on to state that extracts may be simple or
compound. Simple extracts are obtained by the treatment of only
one variety of plant. The vegetable extracts of this heading are
generally raw materials for various manufactured products. It is
pointed out that the extracts are excluded from this heading
when, because of the addition of other substances, they have the
character of food preparations, medicaments, etc.
As pointed out in the ENs to heading 1302, what is covered
in the heading are vegetable products obtained by natural
exudation or by incision or by solvent extraction. The products
in this case are the result of far more than simple processing.
They go through several extractions, refining processes, and even
centrifugation. The Gingko products are mixtures of flavonoids
and soybean phospholipids. The Escin/ -sitosterol PHYTOSOME
product is a mixture of saponin, -sitosterol and phospholipids.
In other words, the products cannot be classified in heading 1302
as extracts or mixtures of extracts. They are formulated
products far advanced from the extracts which would be classified
in chapter 13.
The next alternative proposed by counsel is that
classification in chapter 30, HTSUS, (medicaments) is appropriate
because, it is asserted, the extracts found in PHYTOSOME have
been recognized to exhibit anesthetic, prophylactic or
therapeutic properties. Escin, as well as the Gingko products,
are also said to exhibit such prophylactic or therapeutic
properties.
We are unable to find a basis for classifying these products
in chapter 30, HTSUS. There is no convincing proof that any of
these products are either prophylactic or therapeutic in nature.
The producer mentions that the gingko extract is useful for the
health food market. However, this is not sufficient for the
products to be considered medicaments, or to endow them with
therapeutic or prophylactic properties. In the materials
submitted by counsel, the products are described as being a base
which is used as a part of a final product. While these products
may be considered to enhance the effectiveness of the final
product, they do not treat or prevent any symptom or condition.
As such, they do not have the characteristics which are necessary
for classification in chapter 30.
Another possible classification for the articles suggested
by counsel is in heading 2938, HTSUS, for glycosides, on the
basis of GRI 3(c). GRI 3(c) provides that, in the case of goods
classifiable under two or more headings which cannot be
classified by reference to GRI 3(a) or 3 (b), the goods will be
classified under the heading which occurs last in numerical order
among those which equally merit consideration.
As to the question of classification as a glycoside in
heading 2938, HTSUS, the ENs to that heading state that "This
heading also covers natural mixtures of glycosides and their
derivatives (e.g., a natural mixture of digitalis glycosides
containing purpurea glycosides A and B, digitoxin, gitoxin,
gitaloxin, etc. ); but deliberate intermixtures or preparations
are excluded." (Emphasis in the original) As has been pointed
out, the products here - Phytosomes - are formulated
preparations, mixtures of the particular extract, flavonoids and
soybean phospholipids. As such, they are deliberate mixtures of
far more than vegetable extracts and are not eligible for
classification in heading 2938.
HOLDING:
Gingko Biloba (Dimeric) Bioflavonoid PHYTOSOME and Gingko
Biloba PHYTOSOME are mixtures of flavonoids and soybean
phospholipids and are classified in the provision for prepared
binders for foundry molds or cores; chemical products and
preparations of the chemical or allied industries (including
those consisting of mixtures of natural products), not elsewhere
specified or included; residual products of the chemical or
allied industries, not elsewhere specified or included: other:
other: mixtures containing 5 percent or more by weight of one or
more aromatic or modified aromatic substances: other, in
subheading 3823.90.27, HTSUS (subheading 3824.90.28 in 1998).
Escin/ -sitosterol PHYTOSOME , a mixture of Saponin, -sitosterol and soybean phospholipids, is classified in the
provision for prepared binders for foundry molds or cores;
chemical products and preparations of the chemical or allied
industries (including those consisting of mixtures of natural
products), not elsewhere specified or included; residual products
of the chemical or allied industries, not elsewhere specified or
included: other: other: mixtures containing 5 percent or more by
weight of one or more aromatic or modified aromatic substances:
other: other: other: other: other: other, in subheading
3823.90.5050, HTSUS (subheading 3824.90.50 in 1998).
You should mail this decision to the internal advice
applicant, through its counsel, no later than 60 days from the
date of this letter. On that date the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS and to the public
via the Diskette Subscription service, the Freedom of Information
Act, and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division