CLA-2 OT: RR: CTF: TCM: H023701 RM
Area Director
JFK International Airport, Building 77
United States Customs and Border Protection
Jamaica, NY 11430
RE: Red Cabbage Extract; Application for Further Review of Protest No. 4701- 07-100919
Dear Area Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4701-07-100919, timely filed by counsel on behalf of Diana Naturals, Inc., concerning the classification of a product described as “red cabbage extract” under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
This Protest concerns two entries of a purple substance described on the importer’s invoices as “red cabbage extract,” packaged in 5kg and 30 kg plastic drums. According to a technical data sheet provided by the Protestant which depicts the production process, the substance is obtained from red cabbages that were steeped in acidified water (in order to remove its aromatic and flavor notes) and subsequently macerated, pressed, filtered, pasteurized, clarified, concentrated, cold stored, and standardized. Ethyl alcohol was added to inhibit bacteria growth. The suggested labeling for the product is “Color: anthocyanin or E 163.” It is sold for use in the food and beverage industries (e.g., in sodas, fruit juices, alcoholic beverages, ice creams, sweets, etc.).
A U.S. Customs and Border Protection (“CBP”) laboratory report determined that the substance contains no sugar, 23.6 percent alcohol by weight, 1.83 grams/liter of anthocyanins (expressed as cyanidin 3-glucoside) and does not exhibit a cabbage aroma. The lab report further concluded that the product was processed to reduce other plant extractive substances (e.g., sugars), to remove aromatic and flavoring compounds, and to concentrate the coloring matter (i.e., the anthocyanins of the red cabbage).
The merchandise was entered on March 5, 2007, and April 4, 2007, under heading 2009, HTSUS, which provides for “Vegetable juices, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter.” On June 8, 2007, and July 7, 2007, CBP liquidated the merchandise under heading 2106, HTSUS, which provides for “Food preparations not elsewhere specified or included.”
ISSUE:
Whether the “red cabbage extract” is classified in heading 1302, HTSUS, as a vegetable extract; in heading 2009, HTSUS, as vegetable juice; in heading 2106, HTSUS, as food preparations not elsewhere specified or included; or in heading 3203, HTSUS, as a coloring matter of vegetable origin.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The Protest was timely filed, within 180 days of liquidation for all involved entries (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L.108-429, §2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 4701-07-100919 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the Protest was filed is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. At issue, specifically, is in what way the removal of aroma and flavor and the addition of ethyl alcohol affect the classification of the product described as a red cabbage extract.
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order.
The 2007 HTSUS provisions under consideration are as follows:
1302 Vegetable saps and extracts; pectic substances, pectinates and pectates, agar-agar and other mucilages and thickners, whether or not modifies, derived from vegetable products:
2009 Fruit juices (including grape must) and vegetable juices, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter:
2106 Food preparations not elsewhere specified or included:
3203 Coloring matter of vegetable or animal origin (including dyeing extracts but excluding animal black), whether or not chemically defined; preparations as specified in note 3 to this chapter based on coloring matter of vegetable or animal origin:
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs 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 ENs to heading 1302, state, in relevant part:
Vegetable saps and extracts.
This 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 or the Nomenclature …
* * *
The vegetable saps and extracts of this heading are generally raw materials for various manufactured products. They are excluded from the heading when, because of the addition of other substances, they have the character of food preparations, medicaments, etc.
* * *
The heading further excludes the following vegetable products, classified under more specific headings of the Nomenclature:
(ij) Dyeing extracts (heading 32.03).
The ENs to heading 2009, state, in relevant part:
The fruit and vegetable juices of this heading are generally obtained by pressing fresh, healthy and ripe fruit or vegetables …
The liquids thus obtained are then generally submitted to the following processes:
(a) Clarification, to separate the juice from most of the solids, by means of clarifying substances (gelatin, albumin, infusorial earth, etc.) or of enzymes, or by centrifuging.
(b) Filtration, often by means of filter plates faced with kieselguhr, asbestos, cellulose, etc.
(c) De aeration, to eliminate oxygen which would spoil the colour and flavour.
(d) Homogenisation, in the case of certain juices obtained from very fleshy fruits (tomatoes, peaches, etc.).
(e) Sterilisation, to prevent fermentation. Various methods may be employed, for example, pasteurisation (prolonged or " flash "), electric sterilisation in machines fitted with electrodes, sterilisation by filtration, preservation under pressure using carbon dioxide, refrigeration, chemical sterilisation (e.g., by means of sulphur dioxide, sodium benzoate), treatment with ultra violet rays or ion exchangers.
* * *
Provided they retain their original character, the fruit or vegetable juices of this heading may contain substances of the kinds listed below, whether these result from the manufacturing process or have been added separately:
(1) Sugar.
(2) Other sweetening agents, natural or synthetic, provided that the quantity added does not exceed that necessary for normal sweetening purposes and that the juices otherwise qualify for this heading, in particular as regards the balance of the different constituents (see Item (4) below).
(3) Products added to preserve the juice or to prevent fermentation (e.g., sulphur dioxide, carbon dioxide, enzymes).
(4) Standardising agents (e.g., citric acid, tartaric acid) and products added to restore constituents destroyed or damaged during the manufacturing process (e.g., vitamins, colouring matter), or to “fix” the flavour (e.g., sorbitol added to powdered or crystalline citrus fruit juices). However, the heading excludes fruit juices in which one of the constituents (citric acid, essential oil extracted from the fruit, etc.) has been added in such quantity that the balance of the different constituents as found in the natural juice is clearly upset; in such case the product has lost its original character.
The vegetable juices of this heading may also contain added salt (sodium chloride), spices or flavouring substances.
Similarly, intermixtures of the juices of fruits or vegetables of the same or different types remain classified in this heading, as do reconstituted juices (i.e., products obtained by the addition, to the concentrated juice, of a quantity of water not exceeding that contained in similar non concentrated juices of normal composition).
The ENs to heading 3203 state, in relevant part:
This heading covers the greater part of the products of vegetable or animal origin used mainly as colouring substances. These products are generally extracted from materials of vegetable origin (wood, barks, roots, seeds, flowers, lichens, etc.) or of animal origin, by steeping them in water or in weak acid or ammonia solution or, in the case of certain vegetable materials, by fermentation. They are relatively complex materials and generally contain one or more colouring principles with small quantities of other substances (sugars, tannins, etc.) originating either from the raw materials or resulting from the extraction process. They are included in this heading whether or not they are chemically defined compounds.
Protestant contends that the “red cabbage extract” was properly classified as entered, in heading 2009, HTSUS, as a vegetable juice, because it is obtained by pressing fresh vegetables. In the alternative, Protestant requests that the substance be classified in heading 1302, HTSUS, as a vegetable extract.
Heading 2009, HTSUS, provides in part for “Vegetable juice, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter.” The Oxford English Dictionary (www.oed.com) defines the term “spirit” in relevant part, as “[a] liquid of the nature of an essence or extract from some substance, esp. one obtained by distillation; a solution in alcohol of some essential or volatile principle.” Hence, the substance at issue is excluded from classification therein by the terms of the heading because it contains ethyl alcohol, a type of spirit. Furthermore, the manufacturing processes in addition to pressing, which remove the red cabbage flavor and aroma, cause the substance to lose its original character as red cabbage “juice.” See EN 20.09.
Heading 1302, HTSUS, provides in part for “Vegetable extracts.” EN 13.02 explains that vegetable extracts are vegetable products usually obtained by natural exudation, by incision, or extracted by solvents. Further, our research provides that traditional extracts are obtained by decoction, percolation, maceration, digestion, or infusion. See United States Pharmacopeia (“USP”), (21st rev., p.1334), and Remington's Pharmaceutical Sciences, (18th ed., p. 1543). However processed, CBP has previously stated that the extracts described by the ENs and the USP are complex substances containing a significant portion of the plant profile. See HQ W968370, dated July 31, 2008 (noting that substances obtained from a plant are not considered “vegetable extracts” if they only contain one ingredient divorced from the composition of the vegetable source). The “red cabbage extract” at issue has been further concentrated and standardized to leave only coloring matter (i.e., the anthocyanins) without aroma or flavor. Furthermore, a significant amount of ethyl alcohol was added to inhibit bacteria growth for use in coloring beverages and food. The resulting substance no longer contains a significant portion of the plant profile. Accordingly, it is excluded from classification in heading 1302, HTSUS.
Heading 3203, HTSUS, provides in part for “Coloring matter of vegetable or animal origin (including dyeing extracts but excluding animal black), whether or not chemically defined; …” The substance at issue consists mainly of anthocyanins derived from red cabbages. Van Nostrand’s Encyclopedia of Chemistry (5th Ed. 2005) explains that “[n]atural colorants include anthocyanins …” (pg. 420). Anthocyanins are “a group of water-soluble pigments that account for many of the red, pink, purple and blue colors found in higher plants” (pg. 104). Indeed, our internet research revealed that anthocyanins are sold commercially as natural food color. In fact, the instant merchandise is labeled as anthocyanin color. Based on the foregoing, we conclude that the substance is classified in heading 3203, HTSUS, as a coloring matter of vegetable origin.
Insofar as the merchandise is classified in heading 3202, HTSUS, as coloring matter, it cannot be classified in heading 2106, HTSUS, as "Food preparations not elsewhere specified or included”.
Our conclusion is in keeping with HQ 950416, dated January 30, 1992, wherein CBP determined that a substance consisting of anthocyanins extracted from grape skins was classified in heading 3203, HTSUS, as a coloring matter of vegetable origin.
HOLDING: By application of GRI 1, the red cabbage extract is classified in heading 3203, specifically in subheading 3203.00.80, HTSUS, which provides for: “Coloring matter of vegetable or animal origin (including dyeing extracts but excluding animal black), whether or not chemically defined; preparations as specified in note 3 to this chapter based on coloring matter of vegetable or animal origin: Other.” The 2007, column one, general rate of duty is 3.1 percent ad valorem.
You are instructed to deny the Protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter.
Sixty days from the date of the decision the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division