OT:RR:CTF:FTM H321302 TJS
Ms. Lori D’Ascenzo
Enlightened Feelings
24 Carolina Way
Port Rowan ON N0E 1M0
Canada
RE: Affirmation of HQ H320380; Tariff classification of “Frequencies of Living Flowers”
Dear Ms. D’Ascenzo,
This is in response to your request for reconsideration, dated October 7, 2021, and your subsequent emails, dated October 12, 2021, October 21, 2021, October 27, 2021, and November 17, 2021, of Headquarters Ruling Letter (“HQ”) H320380, issued to you on October 6, 2021. In HQ H320380, U.S. Customs and Border Protection (“CBP”) classified your product, described as “Frequencies of Living Flowers,” under subheading 2208.90.7500, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages: Other: Other: Spirits: Other.” We affirm HQ H320380 because the products at issue are not perfumes or toilet waters of heading 3303, HTSUS.
HQ H320380 described the product at issue as follows:
The label for the “Frequencies of Living Flowers” product describes it as frequencies of living flowers captured in spring water, preserved with 5% grain alcohol (ethanol). The product is said to be created by capturing light photons emitted from living flowers in spring water with 5% grain alcohol. The stated purpose of the product is “restoring emotional and soul balance.”
To consume the product, the user typically adds 30 drops to a 4 oz. glass of water, and sips the mixture. Other formulations of the product include those designed to be held against the body, sprayed topically or throughout a room, or swilled in the mouth and spit out.
In your request for reconsideration, you contend that the “Frequencies of Living Flowers” is not an alcoholic beverage of heading 2208, HTSUS, because the alcohol in the product is used merely as a necessary food-grade preservative/stabilizer to prolong shelf life, not as part of the active ingredient, and that the quantity of alcohol is so small in relation to dosage that when it is added to water (1.5 drops per 4 oz. water), there is no taste or evidence of alcohol. As a general rule, merchandise is classified in its condition as imported. Although the “Frequencies of Living Flowers” is intended to be diluted prior to ingestion, the tangible ingredients of the product in its imported condition are water and 5% grain alcohol. The Harmonized Commodity Description and Coding System Explanatory Note (“EN”) to heading 2208, HTSUS, clearly states that the heading covers undenatured spirits with less than 80% alcoholic strength by volume and which lack secondary constituents that provide a flavor or aroma. We find that the “Frequencies of Living Flowers” product meets this description because it contains 5% grain alcohol and no secondary constituents which give a flavor or aroma.
You argue that classification in subheading 2208.90, HTSUS, is misleading because it contains “the highest volumes of alcohol of any other products listed under 2203-2208.” We note that heading 2207 covers products with alcohol content higher than those classified in heading 2208, HTSUS. Heading 2207 provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of 80 percent vol. or higher; ethyl alcohol and other spirits, denatured, of any strength” whereas heading 2208, HTSUS, provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages.” Furthermore, Note 3 to Chapter 22, HTSUS, states that “[f]or the purposes of heading 2202 the term “nonalcoholic beverages” means beverages of an alcoholic strength by volume not exceeding 0.5 percent vol. Alcoholic beverages are classified in headings 2203 to 2206 or heading 2208 as appropriate.” Accordingly, heading 2208 covers products that contain an alcoholic strength by volume exceeding 0.5%. Since the products at issue contain 5% grain alcohol, which is more than 0.5% and less than 80%, we find that classification in heading 2208, HTSUS, is not misleading as to the amount of alcohol in the product.
Contrary to your claim that heading 2208, HTSUS, classifies the “Frequencies of Living Flowers” as “hazardous” or “intoxicants”, this heading encompasses an assortment of goods including various aqueous solutions of ethanol that are not considered “intoxicants,” which we agree is not your product’s intended use. For example, the product in New York Ruling Letter (“NY”) A88238, dated October 10, 1996, (5% ethyl alcohol, 95% water) and NY A89277, dated November 19, 1996, (0.5 percent ethyl alcohol and 95.5% water) was used to calibrate and test breathalyzers. In NY D87225, dated May 5, 1999, CBP classified homeopathic gem remedies under subheading 2208.90.7500, HTSUSA. The gem remedies, packaged in 1-, 2-, or 3-ounce bottles, were stated to contain distilled water, alcohol, and gem essence. The gem essence was described as the vibratory signature of the gem, but it did not consist of particles. The CBP laboratory determined that the samples contained 85% water and 15% ethanol. Like the homeopathic gem remedies, the “Frequencies of Living Flowers” contain water, alcohol, and a non-physical element, are packaged in small bottles, and are intended for use as an alternative health treatment.
You further assert that the Food and Drug Administration (“FDA”), rather than the Alcohol and Tobacco Tax and Trade Bureau (“TTB”), has jurisdiction over your products and that CBP should first identify the regulatory agency for the product as part of our classification analysis. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation (“AUSR”). The GRIs and the AUSR are part of the HTSUS and are considered statutory provisions of law. CBP is not required to consider which regulatory agency has applicable requirements for imported products when determining tariff classification under the HTSUS. Nor can we unilaterally establish a new heading or a subheading in the HTSUS for your product. The act of classifying goods requires an importer to be familiar with the HTSUS (and the instrument upon which it is based, the international Harmonized Commodity Description and Coding System (“Harmonized System”)). The Harmonized System is administrated by the World Customs Organization (“WCO”). It is updated regularly at the international level, typically every five years, and serves as the foundation for the import and export classification systems used in the United States and by many trading partners. The Harmonized System assigns specific 6-digit codes for varying classifications and commodities. Due to the hierarchical structure of the Harmonized System, the merchandise must first be classified in the Harmonized System in the 4-digit heading whose terms most specifically describe the merchandise (unless otherwise required or directed by the GRIs); and second, only 4-digit headings are comparable (no consideration should be given to the terms of any subheading within any 4-digit heading when considering the proper classification of merchandise at the 4-digit heading level).
You argue that “Frequencies of Living Flowers” should be classified in either heading 2106, HTSUS, as food supplements, heading 2201, HTSUS, as water, heading 3004, HTSUS, as medicaments, or heading 3303, HTSUS, as flower water. We initially note that the product at issue is not classified in heading 2201 which provides for, “Waters, including natural or artificial mineral waters and aerated waters, not containing added sugar or other sweetening matter nor flavored; ice and snow,” since this heading does not cover water with alcohol.
In your email dated October 20, 2021, you stated that heading 3004, HTSUS, which provides for, “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,” may be the most relevant to your product. You also cite HQ 964494, dated August 28, 2002, wherein CBP classified certain homeopathic medicines in heading 3004, HTSUS. Yet, in the same correspondence, you state that the “Frequencies of Living Flowers” are not homeopathy. Since the product is not intended for therapeutic or prophylactic use, we find that the “Frequencies of Living Flowers” are not classified in heading 3004, HTSUS.
In your email dated October 21, 2021, and reiterated in your November 17, 2021, email, you proposed that proper classification could be subheading 2106.90.9898, HTSUSA, which provides for, “Food preparations not elsewhere specified or included: Other…”. The EN to heading 2106, HTSUS, provides that the heading includes, in pertinent part:
(16) Preparations, often referred to as food supplements or dietary supplements, consisting of, or based on, one or more vitamins, minerals, amino acids, concentrates, extracts, isolates or the like of substances found within foods, or synthetic versions of such substances, put up as a supplement to the normal diet. It includes such products whether or not also containing sweeteners, colours, flavours, odoriferous substances, carriers, fillers, stabilisers or other technical aids. Such products are often put up in packaging with indications that they maintain general health or well-being, improve athletic performance, prevent possible nutritional deficiencies or correct sub-optimal levels of nutrients.
Heading 2106, HTSUS, is a basket provision covering food preparations not elsewhere specified or included. Since we find that heading 2208, HTSUS, describes the product, we do not need to consider heading 2106. Nevertheless, we find that the “Frequencies of Living Flowers” is not merchandise that belongs to the class or kind of goods known as food or dietary supplements because it is not put up as a supplement to the normal diet. Furthermore, in another correspondence also dated October 21, 2021, you conceded that subheading 2106.90.9898, HTSUSA, did not fit the products at issue since your products are used in a variety of ways and do not need to be ingested to work. You also cited HQ 964882, dated September 26, 2002, wherein CBP classified certain homeopathic products in subheading 2106.90.9998, HTSUSA (the predecessor provision to subheading 2106.90.9898, HTSUSA). However, this ruling was revoked by HQ 967075, dated December 6, 2004, which reclassified the homeopathic products in heading 3004, HTSUS, as medicaments. As stated above, the “Frequencies of Living Flowers” are not homeopathic products unlike the products subject in HQ 967075.
You argue that “Frequencies of Living Flowers” should be classified in heading 3303, HTSUS, and specifically in subheading 3303.00.30, HTSUS, which provides for perfumes and toilet waters containing alcohol. The EN to heading 33.03 states that the heading covers perfumes and toilet waters designed to give fragrance primarily to the human body. The EN further provides that perfumes and toilet waters generally consist of essential oils, floral concretes, absolutes or mixtures of synthetic odoriferous substances, dissolved in alcohol. Moreover, “perfume” is defined as “a substance that emits a pleasant odor.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/perfume. “Toilet waters,” otherwise known as “eau de toilette,” is defined as “a perfumed liquid containing a lower percentage of fragrant oils than is contained in ordinary perfume or eau de parfum.” Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/eaudetoilette. Thus, products of heading 3303, HTSUS, provide pleasant odors or fragrances. Unlike perfumes and toilet waters, the “Frequencies of Living Flowers” are odorless and do not consist of any essential oils, floral concretes, absolutes or mixtures of synthetic odoriferous substances and are not designed to give fragrance primarily to the human body. Accordingly, “Frequencies of Living Flowers” are not classified in heading 3303, HTSUS, at the 4-digit heading level.
In accordance with the foregoing, we affirm HQ H320380, dated October 6, 2021, which correctly classified the “Frequencies of Living Flowers” under subheading 2208.90.7500, HTSUSA.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division