CLA-2 OT:RR:CTF:TCM H008628ARM
Ms. Sandra R. Calloway
Herbalife International of America, Inc.
990 E. 190th Street
Suite #650
Torrance, CA 90502
RE: The tariff classification of Shapeworks Formula 3 Personalized Protein Powder (a.k.a. Personalized Protein Powder, Performance Protein Powder, or PPP), sku# 0194US or sku# 0242US, from China or Italy.
Dear Ms. Calloway:
In New York Ruling Letter (“NY”) M87095, issued on October 13, 2006 (replacing M80664, dated May 26, 2006, for a typographical error), Shapeworks Formula 3 Personalized Protein Powder was classified in subheading 3504.00.5000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Peptones and their derivatives; other protein substances and their derivatives, not elsewhere specified or included; hide powder, whether or not chromed: Other.”
Pursuant to section 625(c), 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), a notice was published in the CUSTOMS BULLETIN, Volume 41, No. 40, on September 26, 2007, proposing to revoke New York (NY) Ruling Letter M87095, dated October 13, 2006 (replacing M80664, dated May 26, 2006), and to revoke any treatment accorded to substantially identical transactions. We received your comment opposing the revocation and address it herein.
FACTS:
Shapeworks Formula 3 Personalized Protein Powder (a.k.a. Personalized Protein Powder, Performance Protein Powder or PPP), sku# 0194US or sku# 0242US, is a protein supplement, in the form of a beige/tan powder, consisting of soy protein isolate, whey protein concentrate powder, small amounts of vanilla flavoring, and silicon dioxide. The submitted sample contained 88.1 percent protein.
ISSUE:
Whether “Shapeworks Personalized Protein Powder” is classified in heading 3504, HTSUS, as other protein substances and derivatives, not elsewhere specified or included or in heading 2106, HTSUS, as a food preparation, not elsewhere specified or included.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, HTSUS, and if the headings or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitutes the official interpretation of the HTSUS at the international level. The ENs, although not dispositive, are used to determine the proper interpretation of the HTSUS by providing a commentary on the scope of each heading of the HTSUS. See T.D. 89-80., 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
2106 Food preparations not elsewhere specified or included:
2106.10 Protein concentrates and textured protein substances . . . .
* * * * *
3502 Albumins (including concentrates of two or more whey proteins, containing by weight more than 80 percent whey proteins, calculated on the dry matter), albuminates and other albumin derivatives:
* * * * *
3502.20.00 Milk albumin, including concentrates of two or more whey proteins
* * * * *
3504 Peptones and their derivatives; other protein substances and their derivatives, not elsewhere specified or included; hide powder, whether or not chromed:
3504.00.10 Protein isolates. . . .
3504.00.50 Other. . . . .
* * * * *
In HQ 963306, dated September 6, 2000, we classified “Solpro 300”, an enzymatically hydrolysed 84% vegetable protein obtained from wheat gluten (which does not pass a vitality test for wheat gluten), in heading 3504, as an “other protein substance” (see also, HQs 964217 and 964272 of the same date). In HQ 956644, dated December 8, 1994, we classified a whey protein isolate containing 90% protein consisting of beta-lactoglobulin, lactose and moisture, in heading 3504, HTSUS. In NY M87758, issued January 16, 2007, CBP classified EM Powder (300), a 98.7% protein powder derived from fresh eggshell membrane protein used as an ingredient for a dietary supplement, in heading 3504, HTSUS.
In HQ 950915, dated April 3, 1992, CBP discussed the difference between the products of headings 3504 and 2106, HTSUS. In holding that a rice protein powder used in food preparations is classified in heading 2106, HTSUS, we stated, in pertinent part, the following:
In essence, 2106 covers products which serve as, or are incorporated in, food preparations, while 3504 covers products which are not usually consumed, but are used, for instance, in making pharmaceuticals (peptones), textiles and plastics (glutelins and prolamins) and elastic fibers (keratins). The subject product is designed to be used as a protein source in baby foods, nutritional drinks and tablets and, thus, is ejusdem generis to the nutritional food products and supplements which have been classified in heading 2106. . . .
The instant merchandise consists of both a whey protein concentrate, of heading 3502, HTSUS, and a soy protein isolate, of heading 3504, along with flavoring and an anti-caking agent, packaged for retail sale as a protein enhancer for shakes, soups, and other food. Lastly, although the packaging claims that the product is “unflavored”, the ingredients do include flavoring, as well as silicon dioxide, an anti-caking agent.
Hence, the issue here is whether the terms “other protein substances and their derivatives, not elsewhere specified or included”, of heading 3504, include mixtures of proteins in two different forms, here an isolate of heading 3504 and a concentrate of heading 3502, from two different sources, soy and whey respectively, prepared with flavoring and silicon dioxide as a protein enhancer for shakes, soups and other food for human consumption.
Substances that have been classified in heading 3504 have at least four things in common. First, as stated in HQ 950915, these protein substances are generally for use in making pharmaceuticals, textiles or plastics. Second, the protein substances of heading 3504 consist of a very high percentage of protein. Third, the protein in substances of heading 3504 are derived from a single source, such as whey, wheat gluten, or egg shell membrane, as in HQs 956644, 963306, and NY M87758, respectively. Lastly, the substances heretofore classified in heading 3504, HTSUS, may be mixtures of protein and other substances, such as ash and moisture, but the other substances are a product of the derivation of the protein substance from its source, not a deliberate preparation of different protein substances mixed with flavoring and anti-caking agents.
The instant mixture has a relatively high protein content of 88%. However, it is prepared from two different sources of protein in two different forms, mixed with other ingredients for use in shakes, soups and other foods. For the reasons above, CBP finds that heading 3504 does not describe such a substance at GRI 1.
Before progressing through the GRIs, we must look to other headings that may describe the goods at GRI 1. As we stated in HQ 950915, heading 2106, HTSUS, covers products that serve as, or are incorporated in, food preparations. Like the product in that ruling, the instant merchandise is used in shakes, soups, sauces and other foods to enhance their protein content, and thus is ejusdem generis to the products classified in heading 2106, HTSUS, as a food preparation.
Commenter states that the major ingredient in the preparation consists of a protein isolate classified in heading 3405. While this statement is true, it is the entire product that must be described at GRI 1. There is no need to continue to an essential character analysis of GRIs 2 and 3, discussing the relative merits, weight, volume, or other characteristics of each ingredient of the preparation, when there is a heading which describes just such deliberate food preparations. Heading 2106 is that heading.
Commenter infers that examples in the ENs are exhaustive. Examples, by definition, are illustrative. While the example of a protein concentrate listed in EN 2106 (6) is not precisely a description of the instant product, this does not preclude the product from heading 2106. Rather, the ENs support the classification in 2106 in that, in addition to the listed examples, the heading generally covers:
(B) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.) . . . .
The ENs, then, describe the instant product, a mixture consisting of soy protein isolate, whey protein concentrate powder, small amounts of vanilla flavoring, and silicon dioxide, used for protein enhancement of food and beverages, exactly. Protein concentrates are simply food preparations with concentrated levels of protein making subheading 2106.10, HTSUS, descriptive of the product as well.
Commenter also points to decisions of the Dutch and South African Customs Administrations which favor your preferred classification in heading 3504, HTS. While the findings of other Customs Administrations can be instructive, they are not binding on the United States.
HOLDING:
At the subheading level, the term “protein concentrates” describes food preparations derived from protein sources containing relatively high protein levels. Hence, the applicable subheading for the subject product will be 2106.10.00, the provision for “Food preparations, not elsewhere specified or included: Protein concentrates and textured protein substances . . . .” The rate of duty will be 6.4 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov/tata/hts/.
This merchandise may be subject to the Federal Food, Drug, and Cosmetic Act and/or The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which are administered by the U.S. Food and Drug Administration (FDA). Information on the Federal Food, Drug, and Cosmetic Act, as well as The Bioterrorism Act, can be obtained by calling the FDA at 1-888-463-6332, or by visiting their website at www.fda.gov.
EFFECT ON OTHER RULINGS:
NY M87095, issued on October 13, 2006 (replacing M80664, dated May 26, 2006), classifiying Shapeworks Formula 3 Personalized Protein Powder, is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division