OT:RR:CTF:CPMMA H232357 SPH
Ms. Dody Trombley
Norman G. Jensen, Inc.
P.O. Box 2457
Champlain, NY 12919
RE: Revocation of NY F86615 and NY A84405: Classification of Flea Drops
Dear Ms. Trombley:
This is in reference to New York Ruling Letter (NY) F86615, dated May 24, 2000, issued to you for your client, Confab Laboratories, Inc., concerning the tariff classification of a flea treatment for dogs and cats under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling, U.S. Customs and Border Protection (CBP) classified the subject merchandise in subheading 3004.90.9003, HTSUSA, which provided for veterinary medicaments. We have reviewed NY F86615 and find it to be in error. For the reasons set forth below, we hereby revoke NY F86615 and one other ruling with substantially similar merchandise: NY A84405, dated June 17, 1996, which was issued to Bayer Corporation.
Pursuant to section 625(c)(1), 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 of the proposed action was published in the Customs Bulletin, Volume 55, No. 51, on December 29, 2021. Three comments, which will be addressed below, were received in response to this notice.
FACTS:
The subject merchandise, Gentle Touch™ Flea Drops, consists of six, snap-open, plastic tubes put up for retail sale in a paperboard container. Each tube contains a formulated insecticide indicated for topical application on dogs and cats to kill fleas. The two active ingredients contained in the formulation are sodium lauryl sulfate (seven percent) and citric acid (five percent). Both of these active ingredients are considered pesticides by the U.S. Environmental Protection Agency (EPA). The inert ingredients are hydrogenated vegetable oil, soybean oil and glycerin.
ISSUE:
Are the subject flea drops classified in subheading 3004.90.9203, HTSUSA, which provides for, in pertinent part, “Medicaments … put up in measured doses or in forms or packings for retail sale: Other: Other: For veterinary use…”, or in subheading 3808.91.2501, HTSUSA, which provides for: “Insecticides, rodenticides, fungicides …put up in forms or packings for retail sale or as preparations …: Other: Other: Other…”?
LAW AND ANALYSIS:
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 2023 HTSUS provisions under consideration are as follows:
3004 Medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses (including those in the form of transdermal administration systems) or in forms or packings for retail sale:
3004.90 Other:
3004.90.92 Other:
3004.90.9203 For veterinary use …
3808 Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packing for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers):
Other:
3808.91 Insecticides:
Other:
Containing any aromatic or modified aromatic insecticide:
3808.91.2501 Other…
* * *
Note 1(e) to Chapter 38 provides as follows:
This chapter does not cover:
***
(e) Medicaments (heading 3003 or 3004) …
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System at the international level and are generally indicative of the proper interpretation of these headings. See Treas. Dec. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 30.03 states that:
This heading covers medicinal preparations for use in the internal or external treatment or prevention of human or animal ailments. These preparations are obtained by mixing together two or more substances. However, if put up in measured doses or in forms or packings for retail sale, they fall in heading 30.04.
EN 30.04(f) states that:
The heading also excludes:
***
(f) Insecticides, disinfectants, etc., of heading 38.08, not put up for internal or external use as medicines.
EN 38.08(I) states that:
The products of heading 38.08 can be divided into the following groups:
(I) Insecticides
Insecticides include not only products for killing insects, but also those having a repellent or attractant effect. The products may be in a variety of forms such as sprays or blocks (against moths), oils or sticks (against mosquitoes), powder (against ants), strips (against flies), cyanogen gas absorbed in diatomite or paperboard (against fleas and lice).
Many insecticides are characterized by their mode of action or method of use. Among these are:
- insect growth regulators: chemicals which interfere with biochemical and physiological processes in insects.
- fumigants: chemicals which are distributed in the air as gases.
- chemosterilants: chemicals used to sterilize segments of an insect population.
- repellents: substances which prevent insect attack by making their food or living conditions unattractive or offensive.
- attractants: used to attract insects to traps or poisoned baits …
EN 38.08(c) states that:
This heading excludes:
(c) Disinfectants, insecticides, etc., having the essential character of medicaments, including veterinary medicaments (heading 30.03 or 30.04) …
* * *
Heading 3004, HTSUS, provides for medicaments for therapeutic or prophylactic uses. Note 1(d) to Chapter 38 excludes medicaments of heading 3004, HTSUS, from classification in Chapter 38. Therefore, if the flea treatments are classifiable as medicaments, they cannot be classified as insecticides of heading 3808, HTSUS. In Inabata Specialty Chems. v. United States, 29 C.I.T. 419, 423 (Ct. Int’l Trade 2005), the U.S. Court of International Trade (“CIT”) defined “therapeutic” as follows:
In determining the common meaning of the term “therapeutic” for purposes of classifying an article under HTSUS Heading 3004, the court in Warner-Lambert Co. v. United States, 341 F. Supp. 2d 1272, 1277, 28 Ct. Int'l Trade 939 (Ct. Int'l Trade 2004), referred to Stedman's Medical Dictionary, which provides that “therapeutic” is “relating to . . . the treatment, remediating, or curing of a disorder or disease.” STEDMAN'S MEDICAL DICTIONARY 1821 (27th ed. 2000) (emphasis added). The term “therapeutic” has been defined for tariff purposes as embracing “the alleviative or palliative, as well as the curative or healing qualities.” J.E. Bernard & Co., Inc. v. United States, 58 Cust. Ct. 23, 28, 262 F. Supp. 434, 438, C.D. 2872 (1967); see also id. at 29 (finding that hearing aids which ease the affection of deafness without curing it are therapeutic devices); United States v. Alltransport, Inc., 44 C.C.P.A. 149, 152 (1957) (a product is a medicinal if it is "of use or believed by the prescriber or user fairly and honestly to be of use, in curing or alleviating, or palliating or preventing, some disease or affliction of the human frame").
A medicament is therapeutic it if treats, remediates, or cures a disease or affliction of a human or animal body. Similarly, a medicament is prophylactic if it prevents a disease or affliction of a human or animal body. To be classified under heading 3004, HTSUS, a medicament must either be therapeutic or prophylactic.
The instant flea drops are not a treatment for a disease or an affliction because the flea drops do not have an effect on the pet’s body. Rather, the flea drops kill fleas and ticks. While some of the chemicals may be absorbed into the pet’s skin, the intent is not to have an effect on the pet. The flea drops attract and interfere with the life cycles of the infesting pests. As the flea drops kill fleas and ticks but do not prevent or treat any disease or affliction of the pet’s body, they cannot be classified as medicaments of heading 3004, HTSUS. Accordingly, Note 1(d) to Chapter 38 does not exclude the flea drops from classification in Chapter 38.
Heading 3808, HTSUS, provides for insecticides packaged for retail sale. EN 38.08(I) states that the heading includes products in a variety of forms, such as oils and sprays. The instant merchandise consists of liquid drops to be used as a topical application on dogs and cats. The drops include two active pesticide ingredients, sodium lauryl sulfate and citric acid. The drops are formulated to kill fleas. At importation, the subject merchandise is packaged for retail sale. As such, the subject merchandise is classified as an insecticide of heading 3808, HTSUS. This outcome is consistent with prior rulings issued by CBP on similar products.
In the three comments we received, the commenters argue that the subject merchandise have therapeutic and prophylactic functions. The commenters argue that because fleas can cause illnesses in animals such as flea allergy dermatitis, anemia, tapeworm, flea-borne typhus, etc., that the flea drops prevent and remedy these illnesses. While fleas can lead to illness in animals, the subject merchandise does not treat any of these illnesses nor does it prevent them; it merely kills fleas and ticks. For example, if an animal were to develop dermatitis, they would not be treated with flea drops. Instead, they would use a medicament to remedy the dermatitis.
The commenters also argue that the subject merchandise is principally used as a medicament. The commenters assert that heading 3004, HTSUS, is a principal use provision where classification is controlled by the principal use of “goods of that class or kind to which the imported goods belong.” In determining whether the flea drops fall within the class or kind of merchandise principally used in the manners described by heading 3004, HTSUS, the commenters apply the factors set forth in United States v. Carborundum Co., 536 F.2d 373, 377, (C.C.P.A. 1976). The commenters argue that the subject merchandise is principally used as a medicament because, among other reasons, it is put up in measured doses, it can be purchased from licensed veterinarians, and it is advertised to pet owners as a product to protect the health of their pets.
While we agree that heading 3004, HTSUS, is a principal use provision, application of the Carborundum factors to the subject merchandise weighs against classifying the flea drops as part of a “class or kind of goods” of heading 3004, HTSUS. The physical characteristics of the product differ from the class or kind of goods of heading 3004, HTSUS, as they do not include any ingredients with a therapeutic or prophylactic function. In addition, the purchasers do not expect the product to be a medicament. Although the product is purchased with the intent of eliminating a pet’s pain, it is advertised as a “flea drop” used to eliminate the source of the pain. The product description makes clear that it does not have a general medicinal use for irritated skin, but that the product is an insecticide. Finally, the commentors state that the other Carborundum factors are consistent with the merchandise’s use as a medicament, such as the product’s pricing. However, these factors are also consistent with its use as an insecticide. In sum, the totality of the factors demonstrate that the flea drops are not of a “class or kind of goods” of heading 3004, HTSUS.
Thus, the subject merchandise is properly classified as an insecticide of heading 3808, HTSUS.
HOLDING:
By application of GRI 1, the subject flea treatments are classified in subheading 3808.91.2501, HTSUSA, which provides for: “Insecticides, rodenticides, fungicides …put up in forms or packings for retail sale or as preparations …: Other: Insecticides: Other: Other…” The 2023 column one, general rate of duty is 6.5 percent ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
NY F86615, dated May 24, 2000, and NY A84405, dated June 17, 1996, are hereby revoked.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division