CLA-2 RR:CR:GC 959886K
Port Director
U.S. Customs Service
111 W. Huron St.
Buffalo, New York 14202-2378
RE: Application For Further Review of Protest No. 0901-96-101436;
Custom Pharmaceuticals;
OXY Moisturizing Face Wash
Dear Port Director:
The following is our response to the referral by your
office, dated October 24, 1996, of the request for further review
of the above-referenced protest.
FACTS:
The three consumption entries covering the imported
merchandise from Canada, were liquidated on June 14, 1996, under
the provision for other bath preparations, in subheading
3307.30.5000, Harmonized Tariff Schedule of the United States
(HTSUS), with duty at the 1996 special rate of 0.9 percent ad
valorem. A timely protest under 19 U.S.C. 1514 was received on
June 17, 1996. The protestant requested reliquidation of the
entries under the provision for other 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 packing for retail: ...other
dermatological agents and local anesthetics, in subheading
3004.90.9045, HTSUS, with a free general rate of duty. The port
officials suggest an alternative classification under the
provision for soap, in other forms, in subheading 3401.20.000,
HTSUS, with a special free rate of duty.
The OXY Moisturizing Face Wash is put up in a 2 ounce retail
plastic dispenser bottle and it is described on the label as an
antibacterial face wash (with Triclosan) with three proven
cleaners and an oil free moisturizer. It is stated to thoroughly
clean away dirt and kill germs with a dermatologist tested
antibacterial ingredient, help protect skin from dryness while
cleaning and, when used up to three times daily, help leave skin
soft, moist and oil free. The listed ingredients are triclosan
0.6 percent, cocamidopropyl betane, diazolidinyl, urea, FD&C Blue
# 1, glycerin, sodium chloride, sodium cocoyl isethinoate, sodium
lauryl sulfate (a synthetic non-aromatic surface-active agent)
and water.
ISSUE:
The issue is whether OXY Moisturizing Face Wash, as
described above, is classified as a medicament.
LAW AND ANALYSIS:
Heading 3004, HTSUS, covers 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. There
is no evidence that "OXY" is used or is principally used as a
medicament for therapeutic or prophylactic uses. Although the
product contains 0.6 percent triclosan, a bacteriostat that has
both antiseptic and disinfectant properties, its principal
function is as a face wash. Therefore, it is precluded from
classification under the provisions of heading 3004, HTSUS.
Subheading 3307.30.5000, HTSUS, provides for other bath
preparations. However, the product is not a foam bath
preparation or a product used in the bath and is not classified
in this subheading.
Heading 3402, HTSUS provides for organic surface-active
agents (other than soap);
surface-active preparations, washing preparations (including
auxiliary washing preparations) and
cleaning preparations, whether or not containing soap, other than
those of heading 3401. Heading 3401, HTSUS, provides for soap;
organic surface-active products and preparations for use as soap,
in the form of bars, cakes, molded pieces or shapes, whether or
not containing soap; paper, wadding, felt and nonwovens,
impregnated, coated or covered with soap or detergent. OXY
Moisturizing Face Wash is not a soap as described in heading
3401. However, it is a washing and cleaning preparation (other
than soap) having the basis of soap or other organic surface-active agents, and is classified under heading 3402, HTSUS.
We conclude that the product as described is classified as
an other organic surface-active agent, in subheading
3402.20.5000, HTSUS (1996), with a general free rate of duty.
HOLDING:
The merchandise, described as OXY Moisturizing Face Wash, is
classified as an other organic surface-active preparation,
washing and cleaning preparations, put up for retail sale, in
subheading 3402.20.5000, HTSUS (1996), with a general free rate
of duty
You are instructed to deny the protest concerning the
request to reliquidate the entries under subheading 3004.90.9045,
HTSUS. However, the protestant should have the benefit of
liquidation of the entries, in accordance with this decision,
under subheading 3402.20.5000, HTSUS, with a general free rate of
duty.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, Revised Protest Directive, dated August 4, 1993, a
copy of this decision attached to Customs Form 19, Notice of
Action, should be provided by your office to the protestant no
later than 60 days from the date of this decision and any
reliquidations of entries in accordance with this decision must
be accomplished prior thereto. Sixty days from the date of this
decision the Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Divison
Office of Regulations and Rulings