CLA-2 OT:RR:CTF:TCM H036155 HLZ
Port Director, Blaine Service Port
United States Customs and Border Protection
9901 Pacific Highway
Blaine, WA 98230
RE: Internal Advice Request 08/020; Classification of Wine Making Kits
Dear Port Director:
This ruling is in response to your request for Internal Advice, dated August 20, 2008. At issue is the classification of a wine making kit under the Harmonized Tariff Schedule of the United States (HTSUS). You specifically seek guidance on whether the wine making kit is classified in heading 2009, HTSUS, or heading 2106, HTSUS.
FACTS:
The merchandise at issue is identified as a wine making kit. The wine making kit is a product put up for retail sale as a cardboard box containing a plastic bag filled with a juice mixture, and a separate plastic bag containing instructions, a packet of yeast, and packets of clarifying and stabilizing ingredients. Some styles of the wine making kit also include separate packets of flavor and/or oak. The juice component itself consists of several different juice varieties, water, invert sugar, citric acid, sulfur dioxide, malic acid, tartaric acid and diammonium phosphate.
ISSUE:
What is the classification of the wine making kit?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection’s (CBP) practice to follow, whenever possible, the terms of the EN when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
No HTSUS heading provides for wine making kits, and, as a result, the subject article is prima facie classifiable in more than one heading. If imported separately, the bag of juice mixture, depending on its composition, would be classifiable in heading 2009, HTSUS, which provides for “Fruit juices (including grape must) and vegetable juices, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter,” or in heading 2106, HTSUS, which provides for “Food preparations not elsewhere specified or included.” However, the individual packets of ingredients would be classifiable in other headings if imported separately. For example, the packet of yeast would be classified in heading 2102, HTSUS, which provides for “Yeasts (active or inactive); other single-cell microorganisms, dead (but not including vaccines of heading 3002); prepared baking powders.” Thus, we have found that this article cannot be classified solely on the basis of GRI 1. GRI 2(b) governs the classification of goods when there are mixtures and combinations of materials or substances, and when goods consist of two or more materials or substances. In relevant part, GRI 2(b) states that “The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 states, in pertinent part, as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
In this case, the headings 2009 or 2106, HTSUS, and the headings for the individual packets like heading 2102, HTSUS, each refer to only part of the materials that make up this product. Thus, pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods. Accordingly, the article is classifiable pursuant to GRI 3(b).
It is important to note, that in applying a GRI 3(b) analysis, we cannot characterize the subject article as “composite goods” because the bag of juice mixture and the individual packets of ingredients are separable components that are often sold separately. In considering whether these components are “goods put up in sets for retail sale,” the EN to GRI 3(b) provides guidance in relevant part as follows:
For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
consist of products or articles put up together to meet a particular need or carry out a specific activity; and
are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).
First, the wine making kit consists “…of at least two different articles which are, prima facie, classifiable in different headings,” specifically, the juice mixture and other packets of ingredients. Second, the wine making kit consists “…of products or articles put up together to meet a particular need or carry out a specific activity,” specifically, home wine making. Third, the wine making kit is “…put up in a manner suitable for sale directly to users without repacking,” as all the components of the wine making kit are packaged in a cardboard box, ready for sale.
As “goods put up in sets for retail sale,” the wine making kit “shall be classified as if [it] consisted of the material or component which gives [it its] essential character.” The essential character of wine making kits has consistently been determined to be the juice component. See New York Ruling Letter (NY) A83900 (May 31, 1996); NY 806446 (Feb. 13, 1995).
The juice component of wine making kits has been consistently classified in one of the following HTSUS provisions:
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:
* * *
Grape juice (including grape must):
2009.61.00 Of a Brix value not exceeding 30
2009.69.00 Other
* * * *
2106 Food preparations not elsewhere specified or included
* * *
2106.90.99 Other
Preparations for the manufacture of beverages:
* * *
The determining factor between headings 2009 and 2106 lies in the ingredients that make up the juice component. Fruit juices, unfermented, whether or not sweetened, and not containing added spirit, generally fall in heading 2009, HTSUS. However, fruit juices that contain certain added ingredients are classified in heading 2106, HTSUS.
The ingredients allowed to be added and still retain heading 2009, HTSUS, are listed in the EN to heading 2009, HTSUS, which in pertinent part states the following:
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.
* * *
Similarly, intermixtures of the juices of fruits or vegetables of the same of 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).
Wine making kits with juice components containing ingredients not covered by the EN to heading 2009, HTSUS, above are those that have been classified in heading 2106, HTSUS.
Heading 2106, HTSUS provides for “Food preparations not elsewhere specified or included.” The relevant parts of the EN to heading 2106, HTSUS, state that:
Provided that they are not covered by any other heading of the Nomenclature, this heading covers:
(A) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.) for human consumption.
(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 heading includes, inter alia:
* * *
(12) Preparations for the manufacture of lemonades or other beverages, consisting, for example, of:
- flavoured or coloured syrups, being sugar solutions with natural or artificial substances added to give them the flavour of, for example, certain fruits or plants (raspberry, blackcurrant, lemon, mint, etc.), whether or not containing added citric acid and preservatives;
- syrup flavoured with an added compound preparation of this heading (see paragraph (7) above) containing, in particular, either cola essence and citric acid, coloured with caramelised sugar, or citric acid and essential oils of fruit (e.g., lemon or orange);
- syrup flavoured with fruit juices which have been modified by the addition of constituents (citric acid, essential oil extracted from the fruit, etc.) in such quantities that the balance of the fruit juice constituents as found in the natural juice is clearly upset;
- concentrated fruit juice with the addition of citric acid (in such a proportion that the total acid content is appreciably greater than that of the natural juice), essential oils of fruit, synthetic sweetening agents, etc.
Such preparations are intended to be consumed as beverages after simple dilution with water or after further treatment. Certain preparations of this kind are intended for adding to other food preparations.
CBP has issued two rulings pertaining to the classification of wine making kits: NY A83900 and NY 806446. In NY A83900, the juice component of the wine kit contained 58 percent grape juice concentrate, 41 percent liquid invert sugar, and 1 percent tartaric acid, malic acid, citric acid, and wine tannin. The acids were found to be added to replace those lost in the production of the grape juice concentrate. The EN allow juices to have additional ingredients and remain under heading 2009, HTSUS, so long as the juices “retain their original character.” As these additives are allowable as indicated in the EN to heading 2009, HTSUS, the juice component was classified in heading 2009, HTSUS. Conversely, in NY 806446, the juice component of the wine kit contained 70.87 percent sugar syrup blend, 29.12 percent grape and apple juice concentrates, 0.0028 percent diammonium phosphate, and 0.0014 percent bentonite. With these ingredients, the juice component could not be described as having retained the original character of grape juice, and thus was classified in heading 2106, HTSUS.
In addition to the rulings on wine making kits, CBP has issued two rulings regarding additives that go beyond that allowed by the EN for heading 2009, HTSUS: Headquarters Ruling Letter (HQ) 962687 (Feb. 8, 2000) and HQ 955893 (Apr. 5, 1994). HQ 962687 involved the classification of Acerola cherry concentrate powder, the dried concentrated juice of the cherry to which maltodextrin and calcium hydroxide were added. CBP found that the Acerola cherry concentrate powder was precluded from heading 2009, HTSUS, as the juice did not retain its original character. The ruling states in pertinent part:
Maltodextrin is added to the Acerola concentrate powder as an anticaking agent in such quantities that it constitutes 25 – 30 % of the product. The ENS list four types of substances which may be added to juices. Maltodextrin does not fall within any of these types. It is not added as a sugar or sweetener. It is not added as a preservative, and it does not prevent fermentation. It is not a standardizing agent, and is not added to replace a lost constituent. Maltodextrin is not normally found in juices. Its addition, especially in such quantities, causes the juice to lose its original character. Therefore, the Acerola concentrate cannot be classified as a juice of chapter 20.
HQ 955893 involved the classification of sparkling apple juice. CBP found that the EN to heading 2009, HTSUS, applies not only to what may be added to a juice, but also to the reason for its addition. The ruling states in pertinent part:
The EN for heading 2009, HTSUS, generally describes various manufacturing processes of the juices and the additions of constituents that would not preclude coverage under heading 2009. The manufacturing processes are generally those that help to prevent fermentation and to preserve the juices and the addition of standardising agents to restore the constituents destroyed or damaged during the manufacturing processes.
CBP found that the quantity of carbon dioxide added to the apple juice went beyond the level for preservation permitted by the EN, thus precluding it from heading 2009, HTSUS.
The juice component of the wine making kit in question consists of various grape juices and/or grape juice concentrate, water, invert sugar, sulfur dioxide, citric acid, malic acid, tartaric acid and diammonium phosphate. Water, invert sugar, sulfur dioxide, citric acid and tartaric acid are explicitly mentioned in the EN to heading 2009, HTSUS, as permissible additives. Malic acid, while not explicitly mentioned in the EN, is used like citric acid and tartaric acid, and was found in ruling NY A83900 to not preclude classification of the juice in heading 2009, HTSUS. There is no indication that any of the aforementioned ingredients are added in such a quantity to clearly upset the balance of constituents as found in the natural juice.
Diammonium phosphate is also an additive that is not explicitly mentioned in the EN to heading 2009, HTSUS. However, diammonium phosphate does not fall within the four types of substances which may be added to juices listed in the EN to heading 2009, HTSUS. Diammonium phosphate is an inorganic substance added to grape juice or must to provide additional nitrogen to encourage rapid yeast growth and to reduce hydrogen sulfide production during fermentation. It is not normally found in juices. Diammonium phosphate is not added as a sugar or sweetening agent. It is not a standardizing agent, or a product added to restore constituents destroyed or damaged during the manufacturing process, or used to “fix” the flavor of the juice. It is not added to preserve the juice or to prevent fermentation. Rather, diammonium phosphate is a pure form of yeast nutrient that is used prior to fermentation to help get fermentation underway. The addition of diammonium phosphate upsets the balance of the constituents as found in the natural juice and causes the juice to lose its original character. Therefore, the juice component of the wine making kit cannot be classified in heading 2009, HTSUS. The juice component of the wine making kit is provided for in heading 2106, HTSUS.
HOLDING:
Pursuant to GRI 3(b), the wine making kit is classified in subheading 2106.90.9972, HTSUS, which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other, Preparations for the manufacture of beverages: Containing sugar derived from sugar cane and/or sugar beets.” The general column one duty rate is 6.4 percent ad valorem.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division