CLA-2 RR:CR:GC 964114K
Mr. Robert Domey
Fritz Companies, Inc.
P.O. Box 2874
Champlain, N.Y. 12919
RE: Reconsideration of New York Ruling Letter (NYRL) F84926; “NutriSens” Diet
Shake
Dear Mr. Domey:
In a letter dated May 16, 2000, on behalf of NutriSens Inc., you requested that we reconsider NYRL F84926 dated April 11, 2000. The ruling held that various flavored “NutriSens” diet drinks were classified in the quota provisions of subheadings 1901.90.4600 and 1901.90.4700, Harmonized Tariff Schedule of the United States (HTSUS), as other food preparations, dairy products described in Additional U.S. Note 1 to Chapter 4, HTSUS, not containing over 10 percent by weight of milk solids. You opine that the diet drinks are classified in subheading 2106.90.9900, HTSUS, as other can food preparations, not elsewhere specified or included, a non-quota provision. Our decision follows.
FACTS:
The diet drinks were described in NYRL F84926 as French vanilla, strawberry, and chocolate flavored liquid foods labeled as “NutriSens Diet Shake” and packaged for retail sale in cans containing 11 fluid ounces. The French vanilla and strawberry flavored drinks contain approximately 83% water, 7% skimmed milk powder, 6% sugar, 1.5% of a vitamin and mineral premix, emulsifiers and stabilizers, and less than 1% of vegetable oil, flavors, and colors. The milk chocolate flavored drink is similar containing 82.8% water, 7% skimmed milk powder, 5.9% sugar, 1.5% of a vitamin and mineral premix, emulsifiers and stabilizers, and less than 1% of vegetable oil, cocoa, flavors, and colors.
ISSUE:
Whether the product described as “NutriSens” diet drinks contain food preparations of headings 0401 to 0404, HTSUS, which gives the drinks its essential character and therefore classified in subheadings 1901.90.4600 and 1901.90.4700, 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.
Heading 1901, HTSUS, provides, in part, for food preparations of goods of headings 0401 to 0404, not containing cocoa or containing less than 5 percent by
weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included. Subheadings 1901.90.46 and 1901.90.47 (tariff rate quota provisions), HTSUS, provides for other food preparations of headings 0401 to 0404, not containing cocoa or containing less than 5 percent by weight of cocoa on a totally defatted basis, not elsewhere specified or included, other dairy products described in Additional U.S. Note 1 to Chapter 4, HTSUS, not containing over 10 percent by weight of milk solids.
Additional U.S. Note 1, Chapter 4, HTSUS, states the following;
1.For the purposes of this schedule, the term "dairy products described in additional U.S. note 1 to chapter 4" means any of the following goods: malted milk, and articles of milk or cream (except (a) white chocolate and (b) inedible dried milk powders certified to be used for calibrating infrared milk analyzers); articles containing over 5.5 percent by weight of butterfat which are suitable for use as ingredients in the commercial production of edible articles (except articles within the scope of other import quotas provided for in additional U.S. notes 2 and 3 to chapter 18); or, dried milk, whey or buttermilk (of the type provided for in subheadings 0402.10, 0402.21, 0403.90 or 0404.10) which contains not over 5.5 percent by weight of butterfat and which is mixed with other ingredients, including but not limited to sugar, if such mixtures contain over 16 percent milk solids by weight, are capable of being further processed or mixed
with similar or other ingredients and are not prepared for marketing to the ultimate consumer in the identical form and package in which imported. (Emphasis added.)
Headings 0401 to 0404, HTSUS, provide for milk and each of the diet drinks contains 7% skimmed milk powder and therefore the drinks contain “goods” of these headings. The 7% skimmed milk powder as compared with the other ingredients, 82.8 to 83% water, and 5.9 to 6% sugar, gives the drinks its essential character. (See a discussion of this issue in Headquarters Ruling Letters (HRL) 956315 and 955752 dated November 29, 1994, and 960688 dated September 10, 1997.
HRLs 088622 dated May 24, 1991 and, 960544 dated April 10, 1998, were cited to support classification of “NutriSens Diet Drinks” in heading 2106, HTSUS. However, neither of those decisions list in the ingredients, food preparations of subheadings 0401 to 0404, HTSUS. Accordingly, classification in subheadings 1901.90.46 and 1901.90.47, HTSUS, was not an issue. The “milk protein concentrate” listed in HRL 960544, is not a food preparation of subheadings 0401 to 0404, HTSUS. Milk protein concentrate is provided for in heading 3501, HTSUS.
You also opine that the drinks do not contain over 5.5% butterfat and are finished goods for retail trade and therefore precluded by Additional U.S. Note 1, Chapter 4, HTSUS from classification in subheadings 1901.90.46 and 1901.90.47, HTSUS. Additional U.S. Note 1 describes three different types of goods and three different quotas. The “NutriSens” diet drinks contain “articles of milk” and therefore satisfy the requirement of the Note for quota purposes.
Heading 2106, HTSUS, provides for food preparations not elsewhere specified or included. Heading 1901, HTSUS, provides, in part, for “food preparations of goods of headings 0401 to 0404, …not elsewhere specified or included. Although the two headings provide for food preparations not elsewhere specified or included, heading 1901 is more specific than heading 2106. Having determined that heading 1901 provides for the “NutriSens” diet drinks, there is no need to resort to a less specific heading such as heading 2106. See HRLs 950299 dated December 30, 1991, and 952109 dated September 4, 1992. We are satisfied that the drinks are classified by virtue of GRI 1 in subheadings 1901.90.46 and 1901.90.47, HTSUS.
HOLDING:
The NutriSens” diet drinks as described above and in NYRL F84926, are classified in subheading 1901.90.4600, HTSUS, as other food preparations, dairy products described in Additional U.S. Note 1 to Chapter 4, HTSUS, not containing over 10 percent by weight of milk solid, if within the quantitative limitations as described in Additional U.S. Note 10 to Chapter 4 and entered pursuant to its provisions. If the
quantitative limitations have been reached, the drinks are classified in subheading 1901.90.4700, an over the tariff rate quota provision.
NRLY F84926 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division