CLA-2 RR:CR:GC 963684ptl
Mr. Christian Emmanuel, President
Cemma International Inc. and
Mr. Dimitri Fraeys de Veubeke
Advisor-Regulatory Affairs
Groupe Lactel
4829 avenue Rosedale
Montreal (Quebec)
Canada HAV 2H3
RE: Whole Bovine Colostrum
Dear Messrs. Emmaunuel and Fraeys de Yeubeke:
Your letters of September 28 and November 9, 1999, on behalf of Le Groupe Lactel, Boucherville, Quebec, requesting a classification ruling for product # 100243, whole bovine colostrum, under the Harmonized Tariff Schedule of the United States (HTSUS), were referred by the Director, Customs National Commodity Specialist Division, N.Y, to Customs Headquarters for a direct response. You suggest that the product is classified as extracts of glands or other organs or their secretions, for organotherapeutic uses, in subheading 3001.20.00, HTSUS.
FACTS:
The merchandise, #100234, is described as whole bovine colostrum from first and second milking, in the form of spray dried powder, for human consumption. It will be imported into the United States from Canada and/or the European Union, and it will be sold to health food manufacturers as a
natural, dietary supplement in 20 25 kilogram bags. The product will be used as an active ingredient in the manufacture of tablets and/or capsules of bovine colostrum. The whole bovine colostrum from first and second milking contains 19% fat, and it is rich in immunoglobulin G (IgG). It contains by weight 61.5% nitrogenous matter, 22% IgG, 19% fat, 10% lactose, 5% moisture, and 4.5% ash. First milking colostrum contains, on a dry basis, 44% soluble protein (of which 26% isglobulin), 21% casein, 20% fat, 10% lactose, and 5% ash; it contains, on an "as is" basis, 42% soluble protein (of which 25& is globulin), 20% casein, 19% fat, 10% lactose, and 5% ash.
ISSUE:
Whether the product as described is a dairy product consisting of natural milk constituents classified as other dairy products not elsewhere specified or included, in subheading 0404.90.70, HTSUS.
LAW AND ANALYSIS:
The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI’s, taken in their appropriate order. Accordingly, we first have to determine whether the articles are classified under GRI 1. We are satisfied that based on the following that the product is classified under GRI 1.
Subheading 3001.20.00, HTSUS, provides for extracts of glands or other organs or their secretions, for organotherapeutic uses. This is a “use” provision. Additional U.S. Rules of Interpretation 1. (a), HTSUS, defines a “use” provision as “a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use”. In Headquarters Ruling Decision 957738, dated July 19, 1996, Customs noted that Webster's Third New International Dictionary, unabridged (1968) defines the term "organotherapeutic" as "of, relating to, or used in organotherapy". The term "organotherapy" is defined as "a treatment of disease by the administration of animal organs or of their extracts". Other dictionaries contain similar definitions. You indicate that the subject colostrum will be used as a natural food supplement with general beneficial properties. There is no indication that the product will be used for treatment of a specific disease. Accordingly, the product is precluded from classification in subheading 3001.20.00, HTSUS.
Heading 0402, HTSUS, provides for milk and cream, concentrated or containing added sugar or other sweetening matter. We note that colostrum is different from the product that is commercially marketed as milk. For example, Lincoln M. Lampert, Modern Dairy Products (New York; Chemical publishing company, 1975, at page 14) defines colostrum thus: "Colostrum is the secretion of the mammary glands during the first few days of lactation after giving birth. It differs from normal milk in composition,
flavor, and odor. The odor is strong and the flavor bitter....Normal composition of the milk occurs about five days after parturition ...Colostrum is very rich in globulins which serve as the carrier of antibodies which protect the suckling animal against disease producing organisms."
J.M. Frandsen, Dairy Handbook and Dictionary (Pennsylvania: Nittany Printing and Publishing Company, 1958), at page 457 reiterates Lampert's statement that colostrum differs from milk in composition, flavor, and odor thus: "Colostrum is thick and yellow, has a strong odor, a bitter taste, and contains a very high percentage of globulin…. In two to ten days colostrum milk usually changes to normal milk. Colostrum is believed to be especially rich in antibodies which protect the calf from diseases to which it would otherwise offer little or not resistance." The U.S. Food and Drug Administration, in its standards of identity for milk, articulates the definition of milk thus: "Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows" (21 CFR 131.110(a)).
We conclude that colostrum is not the product that is commonly known and commercially sold as "milk" and therefore is precluded form classification in Heading 0402, HTSUS, which provides for milk and cream, concentrated or containing added sugar or other sweetening matter.
Heading 0404, HTSUS provides for whey, whether or not concentrated or containing added sugar or other sweetening matter; products consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included. In our opinion, colostrum is not milk that is commercially sold as milk. It is composed entirely of natural milk constituents and it is not elsewhere specified or included in the tariff. Therefore, it is classified under GRI 1 in subheading 0404.90.70, as other, other natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included. See HQ 964528 of this date concerning similar products.
HOLDING:
The merchandise, # 100234, described above as whole bovine colostrum from first and second milking, in the form of spray dried powder, for human consumption, is classified by virtue of GRI 1 in subheading 0404.90.70, HTSUS, as other, other natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included.
Sincerely,
John Durant, Director
Commercial Rulings Division