OT:RR:CTF:FTM H322257 JER
Center Director
Pharmaceuticals, Health & Chemicals Center of Excellence and Expertise U.S. Customs and Border Protection
1100 Raymond Blvd.
Newark, NJ 07102
ATTN: Rapgyal Tenzing, Import Specialist
Re: Application for Further Review of Protest No. 4701-21-102076; Granulated turmeric extract/standardized curcumin extract
Dear Center Director:
This is reference to the Application for Further Review (“AFR”) of Protest No. 4701-21-102076, timely filed on June 7, 2021, and amended on July 20, 2021, by Bilgrey Cargo, Inc., on behalf of Aurea Biolabs LLC, (“Protestant”), regarding the tariff classification of a granulated turmeric extract under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise at issue is described as curcumin 95% (granular) and is composed of Curcumin Extract Granules, which are produced from the roots of turmeric (i.e., a turmeric extract). The production process consists of grinding, solvent extraction, distillation of solvent, crystallization, filtration and vacuum drying, and granulation. The final composition of the subject product consists of granulated curcumin powder with a strength of 95% Curcuminoids with the remaining 5% consisting of natural non-curcuminoid turmeric extractives. The production process to obtain the 95% curcumin content involves the removal of volatile oils, crude fiber, dietary fiber, protein and carbohydrates. The granulated curcumin powder is imported in bulk within 25-kilogram drums and is not in consumer packaging. It is said to be used as a flavoring in food applications, coloring for cheese products, and for general health benefits in dietary supplements.
According to Protestant’s submission, Turmeric [Curcuma longa] is a rhizome plant [Zingiberaceae] of the ginger family used as a culinary spice and a traditional medicine in Ayurveda and other Indian medical systems, as well as in Eastern Asian medical techniques such as traditional Chinese treatments. Curcumin is the primary component in turmeric.
In its submission, Protestant provided a Certificate of Analysis dated July 13, 2021, and a Laboratory Report dated August 29, 2020, drafted by Plant Lipids Private Ltd. Protestant also provided the following records from Plant Lipids Private Ltd.: Ingredient Declaration (Exhibit 1); Technical Data Sheet (Exhibit 2); Manufacturing Process Flow Chart (Exhibit 3); and Process Description (Exhibit 4). The ingredient declaration provides the product code and describes the product as 95% Curcumin Granules. The technical data sheet describes the parameters, specifications, and the test methods for the product. In particular, this record states that curcumin granular is obtained by solvent extraction of dried root of longa and “subsequent repeated purification by crystallization followed by drying and granulation.” The manufacturing process flow chart (Exhibit 3) depicts the production steps used to produce curcumin granules from turmeric. The process description details the manufacturing steps, including grinding, extraction, distillation, crystallization, filtration and vacuum drying, and granulation.
The subject merchandise covers four entries entered between August 30, 2020, and September 23, 2020, under subheading 3203.00.80, HTSUS, which provides for “Coloring matter of vegetable or animal origin…” U.S. Customs and Border Protection (“CBP”) liquidated these entries on January 22, 2021, under subheading 2106.90.99, HTSUS, which provides, in part, for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other.” On June 6, 2020, Protestant filed a protest and AFR regarding the tariff classification of the subject merchandise and claiming that the correct classification of the granulated turmeric extract/standardized curcumin extract should be in heading 1302, HTSUS. Specifically, Protestant believes that the product should be classified under subheading 1302.19, HTSUS, which provides for, “Vegetable saps and extracts; pectic substances, pectinates and pectates; agar-agar and other mucilages and thickeners, whether or not modified, derived from vegetable products: Other: Other.”
On July 20, 2022, CBP held a meeting with Protestant to discuss the tariff classification of the subject merchandise. Following that meeting, Protestant submitted a supplemental letter, dated September 9, 2022.
ISSUE:
What is the tariff classification of granulated turmeric extract/standardized curcumin extract?
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 of the first entry. (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. 4701-21-102076 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the decision protested is inconsistent with prior CBP rulings concerning substantially similar merchandise.
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. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. GRI 1 requires that classification be determined first 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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2020 HTSUS provisions under consideration are as follows:
1302 Vegetable saps and extracts; pectic substances, pectinates and pectates; agar-agar and other mucilages and thickeners, whether or not modified, derived from vegetable products:
Vegetable saps and extracts:
1302.19 Other:
1302.19.41 Other
1302.19.91 Other
2106 Food preparations not elsewhere specified or included:
2106.90 Other:
Other:
Other:
Other:
Other:
2106.90.99 Other
3203.00 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:
3203.00.80 Other…
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither 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 in interpretation of these headings. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Heading 1302, HTSUS, provides for, among other things, vegetable extracts. EN 13.02 provides, in relevant part, as follows:
The heading covers saps and extracts (vegetable products usually obtained by natural exudation or by incision, and extracted by solvents)…
Solid extracts are obtained by evaporating the solvent. Inert substances are sometimes added to certain extracts so that they can be more easily reduced to powder (e.g., belladonna extract, to which powdered gum Arabic is added), or to obtain a standard strength (for instance, certain quantities of starch are added to opium in order to obtain a product containing a known portion of morphine). The addition of such substances does not affect the classification of these solid extracts.
[. . . ] Extracts may be simple or compound. Simple extracts are obtained by the treatment of only one variety of plant. Compound extracts are obtained either by mixing simple extracts or by treating mixtures of different varieties of plants. Compound extracts (whether in the form of alcoholic tinctures or in any other forms) therefore contain the constituents of several kinds of plant; they include compound jalap extract, compound extract of aloes, compound extract of cinchona, etc.
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.
* * *
Protestant asserts that the subject curcumin 95% (granular) (hereinafter, “CUR 95”) should be classified under heading 1302, HTSUS, as a vegetable extract. Protestant argues that the subject turmeric extract is similar to other products that CBP classified under heading 1302, HTSUS, and relies on various rulings in support of its position. For example, Protestant cites to New York Ruling Letter (“NY”) R04282, dated July 3, 2006, in which CBP classified a “powdered herbal extract from the rhizome of Curcumin Longa” under heading 1302, HTSUS. Protestant argues that the product in NY R04282, referred to as RoxPlus Curcumin, is similar to the subject product and as such, the subject CUR 95 should be classified in heading 1302, HTSUS. Likewise, Protestant insists that the CUR 95 is a dissolved raw material obtained by solvent extract within the scope of heading 1302 similar to Headquarter Ruling Letters (“HQ”) rulings W967653 (dated July 31, 2008) and W968370 (dated July 31, 2008), in which CBP determined that pine bark extracts dissolved in ethanol are classified in heading 1302, HTSUS.
In particular, Protestant contends that the subject CUR 95 is obtained by solvent extraction and is not subsequently enriched, purified, or otherwise refined and is therefore not precluded from classification under heading 1302, HTSUS. Similarly, Protestant asserts that the subject product is not excluded from heading 1302, HTSUS, because no substances are added that would give this product the character of a food preparation noting that EN 13.02 specifically states that extracts are excluded from the heading when substances are added that would give the raw material character of a preparation or medicament. However, CBP has consistently distinguished between raw materials that have undergone only minimal processing and those products which are extensively processed such that they fall outside the scope of heading 1302, HTSUS. See HQ H195716, dated February 19, 2015 (CBP determined that “extensive processing can exclude a product from 1302”); HQ 959099, dated May 1, 1998 (CBP noted that, “As pointed out in the ENs to heading 1302, what is covered in the heading are vegetable products obtained by natural exudation or by incision or by solvent extraction.”) Specifically, CBP has found that products that go through several extractions, refining processes, and even centrifugation are formulated products far advances them from the extracts which would be classified in chapter 13. See id. See also, HQ H106785, dated October 14, 2010 (CBP determined that extensive processing can exclude a product from heading 1302, HTSUS).
Based on the record, the subject CUR 95 is not created solely by means of solvent extraction. Rather, the final curcumin product is subjected to a six-step process that goes beyond the initial solvent extraction. First, the raw turmeric material is grinded whereby the raw material is fed into a Hammer mill where it is reduced to powder. The turmeric powder is then fed into a pelletizer machine that converts the powder into pellets (making it more suitable for solvent extraction). Next, the product undergoes solvent extraction where the turmeric pellets feed to a perforated belt for continuous solvent extraction. The turmeric powdered pellets are subjected to an ethyl acetate solvent to remove any spent residue which then results in a miscella (extracted turmeric oil). The solvent extraction is sprayed to a bed and the miscella is collected. Distillation is next. In its September 2022 supplemental letter, Protestant states that the distillation stage is used to remove the solvent from the miscella (via batch desolventizer) to obtain the [crude] oleoresin turmeric. The collected miscella passes through the sequential rising film evaporator, which is then followed by batch disolventizer to get the crude turmeric into its oleoresin form. Crystallization is the next step and is where the crude oleoresin turmeric undergoes crystallization via ethyl acetate solvent. The Protestant states that the crude turmeric oleoresin is subjected to “repeated purification by crystallization.” During the crystallization stage, the crude turmeric oleoresin is mixed with the appropriate ratio of solvent and held for 7 days to crystallize the curcuminoids. Next is filtration and vacuum drying, wherein the crystallized slurry is fed into a basket centrifuge and the wet curcumin crystals are separated from the filtration media. The wet curcumin crystals are then charged through the rotary vacuum dryer to remove the residual solvent, followed by fine grinding by using the air classifier mill resulting a powder form. The final step is granulation, where the powder is granulated to form the final curcuminoid granules (CUR 95). The powdered curcumin crystals are passed through a roll compactor followed by grinding and sieving through a vibro-sifter to get the desired particle size and bulk density, without any additives or excipients. The manufacturing process results in a granulated curcumin powder with a strength of 95% curcuminoid and 5% non-curcuminoid compounds.
EN 13.02 explicitly excludes certain extracts once the refining process concentrates a certain group of chemical compounds to a particular point. In other words, EN 13.02 excludes products that have undergone processes beyond simple extraction such as purification, tabletization or encapsulation. In HQ H195716, dated February 19, 2015, for example, CBP determined that silymarin powders subjected to concentration measures for the purpose of increasing their relative flavonolignan contents were not described by heading 1302, HTSUS. See HQ 966448, dated July 9, 2004 (CBP excluded an extract from heading 1302, in part, because it had undergone purification by alcohol precipitation and cation resin isolation and because it was a dietary supplement, which regulates appetite, body weight (weight loss), and improves athletic performance and increases muscle mass.). Likewise, CBP has held that a highly purified product resulting in an almost pure chemical compound was beyond the scope of heading 1302, HTSUS. For instance, in HQ H056377 (dated August 9, 2010), involving the classification of a certain grape seed extract, CBP determined that a total polyphenol content of 92% indicated a “highly purified product with very little of the original vegetive matter remaining from the original source.” Because of the resulting product, CBP reasoned that “such a high concentration of a targeted substance results in a relatively pure chemical product that can no longer be considered a simple extract of heading 1302, HTSUS.” In HQ H056377, the product was produced from grape pomace (i.e., or the residue of grape skin, seeds, flesh, and stems) that remained after pressing juice from grapes. The production process consisted of soaking, centrifuging, microfiltrating, vacuum concentrating, pasteurizing, and spray-drying. In HQ H056377, we stated the following:
[T]he source material is highly purified and concentrated in the extraction process. The laboratory results submitted by the importer show total polyphenol concentrations of 55 percent or 92 percent, depending on whether the optic density or Folin-Ciocalteau method was used. The protestant in this case contends that the test yielding the highest concentration of polyphenols (i.e., the optic density test) is the least accurate of the two. The website of the manufacturer of the merchandise in this case, however, lists the higher value (i.e., 92 percent) to indicate total polyphenol content in the exGrapeTOTAL® product. A letter from the Executive VP of Lalilab, Inc. to CBP dated January 3, 2008, also asserts that the total amount of polyphenols in the exGrapeTOTAL® product is standardized at not less than 92 percent.
The subject CUR 95 undergoes a purification process called crystallization, which purifies the curcuminoid and along with other processes, and concentrates the singular curcuminoid chemical compound into 95% strength. Protestant contends that the subject CUR 95 is not subjected to purification; asserting the 95% curcumin is achieved by filtration and vacuum drying. However, according to Protestant’s technical data sheet (Exhibit 2), the curcumin granular is obtained by solvent extraction of the dried root of longa and “subsequent repeated purification by crystallization followed by drying and granulation.” Moreover, crystallization itself is a purification process, which is used to isolate and obtain a purified solid. In this case, the highly purified polyphenol chemical compound is known as Curcumin 95 or Standardized Turmeric (95% Standardized Curcuminoid). Furthermore, crystallization is a chemical process that separates solid from liquid in which a pure solid crystalline phase takes place. It is a purification technique whereby major impurities are removed from the crude turmeric oleoresin using an ethyl acetate solvent to isolate and produce a solid concentrate of the targeted curcuminoid chemical compound. The crystallization of any chemical compound requires one of two different methods: (1) Single Solvent method; or (2) Mix Solvent method to form the curcuminoid crystals. In either method, the goal is to reduce or remove the two major impurities associated with curcumin, demethoxycurcumin (DMC) and bis (demethoxy) curcumin (BDMC). Unlike the pine bark extract in HQ W968370, the extraction, distillation, filtration, and crystallization (purification) process of the subject CUR 95 does not leave any original vegetative components other than the 95% curcuminoid compound and the 5% curcumin. Whereas in HQ W968370 the extraction process left intact a variety of naturally occurring phenolic and polyphenolic compounds and their derivatives as well as non-flavonol components. Likewise, the products in NY R04282 were in powder form, obtained by extraction with an alcohol/water solvent. The facts on NY R04282 do not discuss multiple extractions or the use of a purification step.
According to the manufacturing flow chart and process description provided by Protestant in Exhibits 3 and 4, the crude turmeric oleoresin is “mixed with the appropriate ratio of [ethyl acetate] solvent and held for seven (7) days to crystallize the curcuminoids.” Purification by crystallization is repeated throughout this stage of production. As a result of the crystallization stage, the impurities are reduced to 17.36% demethoxycurcumin (“DMC”) (or Not Less Than (“NLT”) 15% and Not More Than (“NMT”) 19%) and 2.74% bisdemethoxycurcumin (“BDMC”) (or NLT 2.2% and NMT 6.5%). The technical data sheet included in Protestant’s laboratory test as Exhibit 2, indicate that the reduction of the DMC and BDMC impurities renders a highly purified curcuminoid chemical compound of 95.44% curcuminoid and 75.34% curcumin. The crystallization stage demonstrates that the highly concentrated curcuminoid (Standard 95% strength) is obtained by the purification of the crude turmeric oleoresin rather than by the initial solvent extraction. EN 13.02 states that extracts of this heading are generally raw materials for various manufactured products. EN 13.02 further explains that “[extracts] are also excluded from the heading when they are highly refined or purified, e.g., by means of chromatographic purification, ultrafiltration, or additional extraction cycles […] following initial extraction.” Based on the level of refinement and extensive purification by which the subject CUR 95 is obtained, the resulting concentrated (95%) curcuminoid can no longer be considered a raw material that is classifiable under heading 1302, HTSUS. See HQ H061203, dated August 12, 2010 (CBP stated that “there appears to be a limit on the degree and extent of purification that can occur for the product to remain in heading 1302.”).
This position is consistent with previous rulings and decisions involving similar processing and concentration levels. See HQ H056377 (discussed supra, where the polyphenol content of 92% indicates a highly purified product with very little of the original source). Similarly, in HQ W968424, dated December 19, 2006, CBP excluded a pine bark extract from heading 1302, HTSUS, because the level of processing and purification involved resulted in a specialized concentrate that could no longer be considered a raw material of heading 1032. In HQ W968424 CBP found that:
Here, with the product Enzogenol®, we have a product that has been highly extracted and standardized so that it contains the desired constituent of the raw pine bark, proanthocyanidin, in concentrations of 76% or greater to the exclusion of other constituents. The extraction procedure involves taking filtered liquor and then further processing it by either ultra-filtration, reverse osmosis, or a combination of both processes... The purpose of these steps is to allow you to create a product that contains a high concentration of the desired components of the starting material to the exclusion of unwanted components. This processing results in an article that does not include all constituents of the starting material in their relative proportions. Thus, the Enzogenol® has been processed to become a dietary supplement, clearly a specialized, not general, purpose. As such, it is not an extract classified in heading 1302, HTSUS.
Because the processing and purification of the subject CUR 95 goes beyond the scope of heading 1302, HTSUS, we now turn to Protestant’s claim that its product is classifiable in heading 3203, HTSUS. Protestant claims that one of the uses of the subject CUR 95 is as a food colorant; noting that curcumin is often used a food colorant. While curcumin can be used in food coloring in order to be classified under heading 3203, HTSUS, the subject CUR 95 must meet the terms of the heading. Heading 3203, HTSUS, is a principal use provision and provides, in relevant part, for, “colouring matter of vegetable or animal origin…” EN 32.03 explains that dyeing extracts of vegetable origin which are used as coloring substances are included in the heading. Similarly, Note 3 to Chapter 32, HTSUS, states that heading 3203, HTSUS, provides for “preparations based on colouring matter, of a kind used for colouring any material or used as ingredients in the manufacturing of colouring preparations.” As previously determined, the subject CUR 95 is not an extract within the meaning of heading 1302, HTSUS. Inasmuch as the CUR 95 is processed beyond the stage of being an extract, it cannot be considered a dyeing extract. Likewise, based on the information provided, the CUR 95 will not be primarily used as a colorant, or as food coloring. Moreover, EN 32.03 explains that such extracts are excluded from heading 3203, HTSUS, because with the addition of other substances, they have the character of a food preparation. Accordingly, the subject CUR 95 is not classified in heading 3203, HTSUS, because: (1) it is not an extract; (2) it has the characteristics of food preparation (discussed infra); and (3) it is not principally used as a food colorant or a coloring substance.
Since the subject CUR 95 is not an extract classifiable under heading 1302, HTSUS, or a coloring matter of vegetable origin classifiable under heading 3203, HTSUS, we now turn to examining its likeness to powdered preparations obtained from concentrates and isolates from plant or vegetable extracts, which are provided for in heading 2106, HTSUS. See generally, EN 21.06 (13), EN 21.06 (14), EN 21.06 (16), and EN 21.06 (17). See also, HQ H008628, dated February 14, 2008, (CBP classified a personalized protein powder made, in part of, soybean isolate under heading 2106, HTSUS, and the product was used as a protein source in baby foods and nutritional drinks).
Heading 2106, HTSUS, provides for “Food preparations not elsewhere specified or included.” In essence, 2106 covers preparations for human consumption; products which serve as or are incorporated in, food preparations; as well as those preparations which are used in dietary supplements and other nutritional or food supplements. See HQ H008628, dated February 14, 2008, and HQ 960607, dated July 31, 1998. The ENs to heading 2106, HTSUS, explain, in relevant part, that the heading includes, “Preparations, often referred to as food supplements or dietary supplements, consisting of…concentrates, extracts, isolates…put up as a supplement to the normal diet.” EN 21.06 (16). The ENs also state that “Such products are often put up in packaging with indications that they maintain general health and well-being.” EN 21.06 (16). Here, the imported CUR 95 is an extract that constitutes both a concentrate and an isolate as evidenced by the crystallization process. Again, crystallization is a purification process whereby major impurities are removed from the crude turmeric oleoresin using an ethyl acetate solvent to isolate and produce a solid concentrate of the targeted curcuminoid chemical compound. In the instant case, the crystallization process is repeated over a period of seven days. It is manufactured for use as a dietary supplement and is intended for human consumption. As indicated by Protestant’s submission, the subject CUR 95 dietary supplements are designed and intended to promote general health and well-being. In its submission, Protestant noted that “turmeric is promoted as a dietary supplement for a variety of conditions, including arthritis, digestive disorders, respiratory infections, allergies, liver disease, depression, and many others.” Similarly, Protestant’s website indicates that its curcuminoid based products are used as nutraceutical products to maintain health and wellness. In this regard, the subject CUR 95 is described under the scope of heading 2106, HTSUS.
Contrary to Protestant’s assertions, the subject turmeric extract need not be encapsulated or in tablet form to have the character of a preparation of heading 2106, HTSUS. Even though the subject CUR 95 is imported in bulk containers and has not yet undergone any form of encapsulation or tabletization, the lack of encapsulation or tabletization does not preclude its classification in 2106, HTSUS. CBP previously classified preparations that were imported in bulk containers rather than in capsules or tablets under heading 2106, HTSUS. For instance, in HQ H295287, dated June 18, 2020, CBP classified an omega fish oil powder that was imported in bulk containers under heading 2106, HTSUS. The omega fish oil powder was to be sold as an ingredient to food and (dietary) supplemental manufacturers. The retail packaging and/or encapsulation would occur after importation. Likewise, in HQ 965805, dated October 7, 2002, CBP classified a sweetener additive imported in bulk tanks containing up to 25,000 gallons of the formula under heading 2106, HTSUS. Similarly, in HQ H280419, dated December 7, 2020, CBP classified a bulk rice protein powder, to be used as a dietary supplement, in heading 2106, despite not being imported in retail packaging, or being in capsule or tablet form. Based on the terms of the heading and previously issued CBP decisions, heading 2106, HTSUS, does not require the encapsulation or tabletization of such preparations. In the instant case, despite the lack of encapsulation or tabletization, the subject CUR 95 has the primary use, method of processing, and the final form (granulated powder) of preparations described by heading 2106, HTSUS.
Additionally, CBP has previously classified preparations originating from plant or vegetable extracts under heading 2106, HTSUS. In HQ 960607, dated July 31, 1998, for example, CBP classified encapsulated ginseng extract under heading 2106, HTSUS. In HQ 960607, ginseng roots were crushed into a powder after which the active ginseng extract was obtained by alcohol extraction. Soybean oil, lecithin, and beeswax were added to the mixture before the ginseng extract was placed into the capsules. The capsules themselves did not make the ginseng extract a preparation but rather the extract itself along with the added ingredients are what result in a preparation. See generally, HQ 962392, dated May 1, 2000; HQ 962398, dated March 8, 2000 (CBP classified a valerian root extract and a gingko biloba extract, respectively under heading 2106). Likewise, in HQ 953679, dated February 3, 1994, CBP classified a turmeric extract described as being a capsule of 95% Curcumin under heading 2106, HTSUS. In HQ 953679, CBP determined that the turmeric extract along with other items such as a gingko biloba extract, a valerian extract, and an echinacea extract were excluded from heading 1302, HTSUS, because they were not raw materials. Instead, HQ 953679 determined that these items were properly classified in 2106, HTSUS, as preparations because they were finished products designed to be used as food, dietary and/or nutritional supplements. The only distinction between the turmeric extract of HQ 953679 and the imported CUR 95 is that the subject CUR 95 is not encapsulated. Both products are 95% Curcuminoid and both will be used as a food or dietary supplements. Moreover, the ENs to heading 2106, HTSUS, describe multiple preparations that originate from plant, vegetable, and other extracts.
Lastly, the extensive refinement of the subject CUR 95 renders a ready to use dietary supplement or ingredient for food products under the scope of heading 2106, HTSUS. As previously stated, certain extracts are excluded from heading 1302, HTSUS, due to extensive processing, purification, or the addition of other substances that result in products that have the character of food preparations and medicaments. In this case, the level of refinement that the original raw turmeric root undergoes results in a finished product that has the character of a food preparation. As stated in HQ H280419, the term “refine” means “to free something from impurities or unwanted material; to improve or perfect by pruning or polishing.” In HQ H280419 CBP found that “these final production steps (which included enzymatic hydrolysis) serve to further advance, improve and refine the residual rice substance from a residue substance into a ready to use nutritional supplement.”
Much like the nutritional supplement in HQ H280419, the subject CUR 95 was once raw turmeric root that underwent further processing; processing which is beyond the initial solvent extraction allowed by the terms of heading 1302, HTSUS. In addition to the initial solvent extraction in Step 2, there is 1) a distillation process using a solvent, and 2) a purification process called crystallization which also utilizes an ethyl acetate solvent. EN 1302, HTSUS, states that extracts “are also excluded from the heading when they are highly refined or purified, e.g., by means of chromatographic purification, ultrafiltration, or additional extraction cycles following the initial extraction.” Here, the subject turmeric has been purified, highly refined, filtrated and subjected to two additional extraction cycles following the initial solvent extraction. As such, it is excluded from heading 1302, HTSUS. Based on the manufacturing process, we find that the raw turmeric extraction is further advanced and refined into a finished product, with the characteristics of a preparation of heading 2106, which is ready for human consumption. Moreover, Protestant’s website Aurea Bio-Labs (aureabiolabs.com) explains that the company specializes in nutraceuticals. Nutraceuticals consist of four categories that include: dietary supplements, functional food, medicinal food, and farmaceuticals. Nutraceuticals may be used to improve health, prevent chronic diseases, postpone the aging process, and in turn increase life expectancy, or just support the functions and integrity of the body. One popular nutraceutical is Curcumin 95 (turmeric powder that has been refined and purified to 95% curcuminoid). As a dietary supplement, Curcumin 95 is said to be a powerful antioxidant due to its high phenolic content. Throughout the industry, Curcumin 95 is marketed for its health benefits, in particular for bone and joint support and rheumatoid arthritis. The subject CUR 95 presents with the same or substantially similar ingredients and properties as other Curcumin 95 (95% standardized curcuminoids) currently on the market and according to Protestant will also be used as a dietary supplement. Similarly, Protestant markets two curcumin products CuroWhite and Cureit/Acumin which is described by Aurea Bio Lab to provide the following health benefits: absorption, bioavialbility, metabolism, antioxidant activities, cardiovascular health, digestive health and musculoskeletal) joints, muscles, bones) health. Likewise, Aurea Bio Lab published a White Paper in January 2018 entitled Turmeric, Ayurveda Spice of Life. In Protestant’s 2018 Cureit-White Paper, it states that “practitioners use turmeric as a stomach or liver tonic, blood purifier, arthritis management.” The subject CUR 95 is no different. It is a dietary supplement that is said to provide the above referenced health benefits. Whether the subject product is sold in wholesale form to Curcumin retailers, it is a finished product that is ready for use. The imported bulk CUR 95 merely requires encapsulation or some other form of packaging before it is ready for retail sale. Based on the aforementioned, we find that the subject CUR 95 is a preparation not specified or included elsewhere and is therefore prima facie classified in heading 2106, HTSUS.
HOLDING:
By application of GRI 1, the subject curcumin 95% (granular) is classified in heading 2106, HTSUS. Specifically, it is provided for in subheading 2106.90.99, HTSUS, as “Food preparations not elsewhere specified or included: Other: Other: “Other: Other: Other: Other.” The column one general rate of duty is 6.4% ad valorem.
You are instructed to DENY the protest.
You are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division