OT:RR:CTF:FTM H322781 MD
Mr. H. Michael Leightman
Ernst & Young, LLP
5 Houston Center, Suite 1200
Houston, Texas 77010
RE: Affirmation of HQ H314968; Tariff Classification and USMCA Eligibility of Snack Foods
Dear Mr. Leightman:
This is in response to your request, dated January 10, 2022, on behalf of your client, Baby Gourmet Foods Inc. (“Baby Gourmet”), for reconsideration of Headquarters Ruling Letter (“HQ”) H314968, issued on March 15, 2021. In that ruling, U.S. Customs and Border Protection (“CBP”) classified various “Slammers” snack foods under the Harmonized Tariff Schedule of the United States (“HTSUS”) and determined its eligibility for preferential tariff treatment under the United States-Mexico-Canada Agreement (“USMCA”).
Specifically, CBP classified the various “Slammers” snack foods under either subheading 2008.97.1040, HTSUS Annotated (“HTSUSA”), which provides for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears: Other,” or subheading 2008.97.9094, HTSUSA, which provides for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: Other: Other: Other.” Based on the information provided, CBP determined that the “Slammers” were not eligible for preferential tariff treatment under the USMCA. We have reviewed HQ H314968, determined that it is correct, and for the reasons set for below, are affirming that ruling.
HQ H314968 described the subject merchandise as follows:
The “Awesome Acai Strawberry Apple,” contains organic apple puree from Argentina classified in subheading 2007.99.48, Harmonized Tariff Schedule of the United States (“HTSUS”), and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack food also contains in amounts of 10 percent or less, organic beet puree from the United States, organic blueberry puree SS from the United States, organic strawberry puree from the United States, organic acai puree from Brazil, organic precooked amaranth flour from Canada, organic lemon juice concentrate from Mexico, and wellmune beta glucan from Columbia.
The “Epic Orange Mango,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS, and organic mango puree from Mexico classified in subheading 2007.99.50, HTSUS. The snack food also contains in amounts of 10 percent or less, organic carrot puree from the United States, organic lemon juice concentrate from Mexico, organic orange juice from Mexico, organic vanilla from the United States, and wellmune beta glucan from Columbia.
The “Chill’n Yumberry Banana Blueberry,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack food also contains in amounts of 10 percent or less, organic blueberry puree SS from the United States, organic butternut squash puree from the United States, organic yumberry juice concentrate from China, organic blueberry puree from Canada, organic lemon juice concentrate from Mexico, and wellmune beta glucan from Columbia.
The “Pomegranate Grape Crush,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack foods also contain in amounts of 10 percent or less, coconut cream UHP from Sri Lanka, concord grape juice concentrate from the United States, whey protein 9420 Isolate from the United States, organic antifoam 3000 from the United States, pomegranate natural organic flavor from Canada, purple carrot juice concentrate from Turkey, pomegranate juice concentrate from Turkey, and lemon juice from Mexico.
The “Watermelon Kiwi Crush,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack food also contains in amounts of 10 percent or less, whey protein 9420 isolate from the United States, Niagara white grape juice concentrate from the United States, red beet juice concentrate from the United States, strawberry flavor from Canada, watermelon natural organic flavor from Canada, strawberry juice concentrate from the United States, watermelon juice concentrate from the United States, lemon juice concentrate from Mexico, and organic anti foam from the United States.
In Canada, the abovementioned ingredients go through a process of “blending, homogenization, and pasteurization.” The products are then “hot filled into 90-gram net weight, laminated PET 12/AL9/PE90 pouches, sealed with a plastic twist off lid and then cooled. The 90-gram pouches are packed four to a box for retail sale.”
In your request for reconsideration, you contend that the “Slammers” should be classified under either subheading 2104.20.1000, HTSUSA, which provides for “Soups and broths and preparations therefor; homogenized composite food preparations: Homogenized composite food preparations: Put up for retail sale as food suitable for infants or for dietetic purposes[,]” or subheading 2104.20.5000, HTSUSA, which provides for “Soups and broths and preparations therefor; homogenized composite food preparations: Homogenized composite food preparations: Put up for retail sale as food suitable for young children.” Specifically, you assert that the “Slammers” are (1) “put up for retail sale […] for dietetic purposes” and (2) “homogenized composite food preparations put up for sale for young children.” In support of both claims, you cite to several CBP rulings. Lastly, on the basis that both of the above claims are correct, you state that the “Slammers” are eligible for preferential tariff treatment under the USMCA.
On April 27, 2022, CBP hosted a videoconference with your office and your client to discuss the subject merchandise. During this conference, CBP requested supplemental information pertaining to the subject merchandise’s contented dietetic purpose – specifically, pertaining to the addition of whey protein isolate and yeast beta glucan. On May 9, 2022, you furnished this requested information to CBP in the form of an exhibit workbook containing prior CBP rulings, various proprietary studies pertaining to the yeast beta glucan, a letter from your client’s dietician, and information from the Food and Drug Administration (“FDA”) pertaining to their delineation of age groups from birth to age sixteen.
When determining the classification of goods within heading 2104, HTSUS, specifically, subheadings 2104.20.1000, HTSUSA, and 2104.20.5000, HTSUSA, CBP considers the language of Note 3 to Chapter 21 (“Note 3”) which states, in pertinent part:
For the purposes of heading 2104, the expression “homogenized composite food preparations” means preparations consisting of a finely homogenized mixture of two or more basic ingredients such as meat, fish, vegetables, fruit or nuts, put up for retail sale as food suitable for infants or young children or for dietetic purposes, in containers of a net weight content not exceeding 250 g.
In this regard, in order for a product to be classified within heading 2104 as a “homogenized composite food preparation,” it must meet three criteria. First, the preparation must be a “finely homogenized mixture of two or more basic ingredients such as meat, fish, vegetables, fruit or nuts.” Second, the food preparation must be “put up for retail sale as food suitable for infants or young children or for dietetic purpose.” Lastly, the food preparation must be “in containers of a net weight content not exceeding 250 g.” As all five “Slammers” are a finely homogenized mixture of fruit, vegetables, and other ingredients, and are also packaged in 90-gram pouches, they meet the first and third requirement of Note 3. As discussed in HQ H314968, the “Slammers” do not meet the second criterion because the products are not “put up for retail sale as food suitable for infants or young children.” We further elaborate that the products do not meet the second criterion because they are not “put up for retail sale as food suitable for infants or young children or for dietetic purposes.”
You claim that the “Slammers” are products for dietetic purposes due to the presence of “curated ingredients [which] provide [] nutritional benefits to [] children” in all products and the addition of Wellmune yeast beta glucan in some of the products. Each of the “Slammers” contains between “190 to 230 milligrams of potassium, 0.2 to 0.4 milligrams of iron, [] 1 gram of dietary fiber[,] and 1 gram of protein.” The “Slammers” which contain added Wellmune have an additional “90 milligrams of yeast beta glucan.” The term “dietetic purposes” is not explicitly defined within the HTSUS. However, CBP has previously contemplated the meaning of the term “dietetic purposes” in reference to foods or beverages such as “homogenized preparations” or “homogenized vegetables.” In HQ 083895, dated June 21, 1989, CBP classified a liquid meal replacement within Chapter 21, HTSUS, because “[f]ood preparations containing only nutritional substances are among those foodstuffs or beverages,” such as “dietetic” foodstuffs, that are explicitly excluded from Chapter 30, HTSUS. In HQ 088622, dated May 24, 1991, CBP classified another liquid meal replacement in Chapter 21, HTSUS, after excluding it from Chapter 30, HTSUS. CBP noted that such foodstuffs and beverages excluded from Chapter 30, HTSUS, including “dietetic” foodstuffs, contain “medicinal substances” which “are added solely to ensure a better dietetic balance, to increase the energy-giving or nutritional value of the product or to improve its flavour, always provided that the product retains its character of a foodstuff.”
In your request, you cite to both HQ 083895 and HQ 088622 to contend that the “Slammers” should be classified as a “homogenized food preparation […] put up for retail sale […] for dietetic purposes.” While we agree with the language set forth in both HQ 083895 and HQ 088622, we do not consider the “Slammers” to be put up for retail sale “for dietetic purposes.” As noted in your request, the “Slammers” are “wholesome snacks.” Meanwhile, the product at-issue in HQ 083895 is described as a “liquid meal replacement […] primarily for [medical] patients who, because of physical impairment, are unable to drink the product without assistance and require tube feeding.” Similarly, the product at-issue HQ 088622 is described as a “nutritionally complete, ready to use liquid food [for] patients who, for a variety of reasons, have difficulty in meeting their nutritional requirements through a normal diet [and is] ingested or administered orally or by a feeding tube.”
From the information presented, it is evident that the “Slammers” are neither similar nor analogous to either the liquid meal replacements which were deemed to have a “dietetic purpose.” As delineated within both HQ 083895 and HQ 088622, “dietetic” foods excluded from classification within Chapter 30, HTSUS are analogous to “[f]ood preparations containing only nutritional substances.” Major nutritional substances in food are referred to as “proteins, carbohydrates and fats, and [any] vitamins and mineral salts [which] also play a role in nutrition.” While the “Slammers” may possess both naturally occurring and added vitamins and minerals, they do not only contain nutritional substances. Instead, the “Slammers” merely consist of a “mixture[] of organic fruits and vegetables” alongside either “6.50% whey protein” or “less than 1%” of Wellmune. As such, we find that the “Slammers” are not classifiable within heading 2104, HTSUS, as a “homogenized composite food preparation” because they are not “put up for retail sale […] for dietetic purposes.”
Within the supplemental information provided to CBP were three prior CBP rulings which you contend discern how the term “dietetic” ought to be applied. Specifically, you state that the following rulings “are only applicable in this case towards determining an understanding of comparable nutritional functions in other products and how dietetic foods assist certain population groups in achieving a well-balanced diet.” We find the following CBP rulings to either be inapplicable to our decision or demonstrative that the “Slammers” do not possess a “dietetic purpose.”
Firstly, in HQ 961909, dated March 29, 1999, CBP found that a children’s liquid vitamin was properly excluded from classification within Chapter 30, HTSUS, before ultimately classifying the product within heading 2106, HTSUS. While you contend that this exclusion was due to the liquid vitamin’s “dietetic purpose,” CBP explicitly excluded the liquid vitamin from Chapter 30, HTSUS, due to its use as a “food supplement.” Specifically, CBP noted that Chapter 30, HTSUS, does not cover “Foods or beverages (such as dietetic, diabetic or fortified foods, food supplements, tonic beverages and mineral waters),” before further elaborating that Chapter 30, HTSUS, exclusion was reinforced by the Explanatory Notes (“ENs”) to headings 3003 and 3004, which further provide that “this heading excludes food supplements containing vitamins.” (emphasis added). Such a reiteration demonstrates that CBP did not consider the liquid vitamin to serve a “dietetic purpose,” rather, that it excluded from Chapter 30, HTSUS, as a “food supplement.” Thus, the determination of HQ 961909 is inapplicable to our ultimate decision.
Secondly, in HQ 950917, dated May 11, 1992, CBP found that Alactamil – an infant formula – was properly excluded from classification within Chapter 30, HTSUS, as having a “dietetic purpose,” before ultimately classifying the product within heading 2106, HTSUS. Within the ruling, Alactamil was described as “designed for infants who exhibit a lactose intolerance, and it intended as a complete nutritional source, or as a breast milk supplement, from birth to age one.” Moreover, CBP found that Alactamil contained only nutritional substances. In contrast, “Slammers” are not designed to combat a specific dietary condition, do not contain only nutritional substances, nor are “Slammers” intended as a complete nutritional source. Instead, “Slammers” are described as “wholesome snacks.” As such, we find that “Slammers” are neither similar nor analogous to the Alactamil classified in HQ 950917.
Lastly, in HQ 085776, CBP found that Peptamen – a complete, nutritional elemental diet – was properly excluded from classification within Chapter 30, HTSUS, before ultimately classifying the product within heading 2106, HTSUS. Within the ruling, Peptamin was described as “a liquid, isotonic, complete elemental diet” that was “developed exclusively for the critically ill patient, who suffers from a reduced ability to digest protein, carbohydrate, fat, vitamins[,] and minerals.” Moreover, CBP noted that “Peptamen is used as the sole source of nutrition” for its consumer and that it consists solely of nutritional substances. In contrast, “Slammers” are not developed exclusively for the ill, let alone the critically ill. Also, the “Slammers” neither consist solely of nutritional substances, nor are they utilized as the sole source of nutrition. Rather, “Slammers” are described as “wholesome snacks.” Therefore, we find that “Slammers” are neither similar nor analogous to the Peptamen classified within HQ 085776.
In addition to the aforementioned CBP rulings supplied within your supplemental submission, you provided three proprietary studies conducted to evaluate the efficacy of yeast beta glucan in combatting childhood respiratory illnesses. You contend that these proprietary studies are direct evidence that the Slammers which possess added yeast beta glucan possess a dietetic purpose. Furthermore, you contend that the letter from your client’s dietician reinforces this evidence and is evidentiary of Slammers’ dietary purpose as a result of added whey protein isolate.
While we decline to discuss any scientific merits or shortcomings within either the three proprietary studies or the letter from your client’s dietician, we reiterate our position regarding merchandise deemed to serve a “dietary purpose.” As demonstrated by the number of CBP rulings cited in your initial request and supplemental submission, CBP possesses a robust precedent and understanding concerning merchandise which possesses a “dietetic purpose.” Such products deemed to possess a “dietetic purpose” includes liquid meal replacements, capable of acting as an individual’s sole source of nutrition, and specially developed infant formulae. Moreover, these products which possess a “dietetic purpose” are developed for a specific group of people, such as critically ill medical patients or infants who possess a dietary condition. While “Slammers” may possess both naturally occurring and added vitamins and minerals, it is neither similar nor analogous to products which we have previously found to possess a “dietary purpose.” Instead, we consider “Slammers” to be as described; a “wholesome snack” which does not possess a “dietetic purpose.” As such, we reiterate that the “Slammers” are not classifiable within heading 2104, HTSUS, as a “homogenized composite food preparation” because they are not “put up for retail sale […] for dietetic purposes.”
As indicated in HQ H314968, the terms “infants” and “young children” are not defined within the HTSUS; however, the term “infant” has been interpreted to mean “children up to two years of age.” This understanding comes from HQ W967962, dated November 15, 2006, where CBP classified Cerelac, a wheat cereal with milk, as a preparation for infants, stating that for tariff purposes, the term “infant” is interpreted to mean children up to two years of age. You assert that the “Slammers” are “homogenized composite food preparations put up for sale for young children.” Within your supplemental submission, you attached information from the FDA pertaining to their delineation of age groups from birth to age sixteen. You contend that CBP should consider the FDA’s definition of “young children” as opposed to our established definition of “young children” within the context of prior CBP rulings on apparel classification. According to your submission, the FDA delineates four age groups, from birth to age sixteen, for participants in its pediatric studies; these are “Neonates” (newborns to the age of one month), “Infants” (from the age of one month to the age of two years), “Children” (from the age of two years to the age of twelve years), and “Adolescents” (from the age of twelve years to the age of sixteen years). On the basis of these age groups, you contend that CBP should not limit our definition of “infants” or “young children” to children between the ages of one to two years of age. We disagree for the following reasons.
First, the FDA information provided is not intended as guidance for the classification of imported merchandise under the HTSUS. Statutes, regulations, and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of CBP classification disputes. See Amersham Corp. v. United States, 5 C.I.T. 49, 56, 564 F.Supp. 813, 817 (1983). Second, FDA does not specifically contemplate an age range for “young children” within its delineated age groups. Rather, the four age groups are “Neonates, Infants, Children, and Adolescents.” Therefore, the understanding of what the FDA considers to be “young children” is ambiguous and could represent a vast combination of potential age ranges. Lastly, and most importantly to our analysis, is that the definition of “infants or young children” is fundamentally irrelevant – “Slammers” are not put up for sale for any specific age group, let alone exclusively for infants or young children.
From the information presented in your request for reconsideration and advertising on the “Slammers” website, it is evident that the “Slammers” are suitable, put up for sale, and marketed for consumers of all ages. Specifically, within your request for reconsideration, you note that “Slammers products are marketed to parents of children of all ages.” Likewise, visitors to the “Slammers Snacks” website are immediately greeted with a pop-up message over the landing page, which displays a young adult consuming a “Slammers” product and imploring “influencer[s] or blogger[s]” to join the “Slammers” family as “brand ambassador[s].” While “influencers” and/or “bloggers” tend to vary in age, those capable of contacting a company via a website to become a “brand ambassador” are likely older than 24 months in age. Similarly, throughout the “Slammers” website are images of school-age children holding “Slammers” products, with various marketing testimonials with such details as “everyone in our family loves [“Slammers”], from the adults way down to the youngest child.” One such testimonial rhetorically asks; “[t]hink fruit pouches are just for kids? Think again!” In contrast, the “Slammers” website does not possess any marketing images or testimonials to suggest that the product is marketed as food suitable for children under the age of two years old. Rather, the “Slammers” website demonstrates that “Slammers” are suitable, and marketed, for consumption by individuals of all ages. As such, we find that the “Slammers” are not classified within heading 2104, HTSUS, as “homogenized composite food preparations” because they are not “put up for retail sale as food suitable for infants or young children.”
Ultimately, we agree with the classification set forth in HQ H314968, in that the “Slammers” are properly classified within heading 2008, HTSUS, which provides for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.” The EN to 20.08 specifically covers “Fruit, nuts, and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter.” As discussed, the “Slammers” overwhelmingly consist of various fruit purees. Therefore, we find that the “Slammers” are appropriately classified within heading 2008, HTSUS, as fruit preparations. The ENs to 20.08 allow for “[o]ther substances” to be added to products of heading 2008, HTSUS, “provided they do not alter the essential character of [the] fruit, nuts, or other edible parts of plants.” The other ingredients of each of the “Slammers” – amaranth flour, vegetable puree, vegetable concentrate, Wellmune beta glucan, whey protein, etc. – do not “alter the essential character” of the “Slammers” as fruit purees.
Within your request for reconsideration, you contend that the addition of Wellmune and/or whey protein to the “Slammers” alters its essential character. Specifically, you cite to HQ 560931, dated July 8, 1998, in which CBP held that the seasoning and breading of fish tails altered the taste and use of the product, thereby resulting in the creation of a new product. You juxtapose this ruling to HQ H243645, dated September 30, 2015; and HQ 088756, dated April 8, 1991, where CBP found that the addition of sodium bisulfate and trace amounts of calcium, respectively, were not significant enough to change the character of the respective goods. You contend that the addition of Wellmune and/or whey protein provides the “Slammers” with an additional use as a “source[] of immune and proteins support,” thus altering its essential character. We disagree.
The addition of Wellmune and/or whey protein to the “Slammers” does not alter the taste or the use of the product. As discussed, the “Slammers” overwhelmingly consist of various fruit purees. Prior to the addition of Wellmune/and or why protein, the “Slammers” possess a taste and use identical to that of fruit purees. After the addition of Wellmune and/or whey protein, the taste of the “Slammers” remains the same. Before the addition of Wellmune and/or whey protein, the “Slammers” are consumable “wholesome snacks.” After the addition of Wellmune and/or whey protein, the use of the “Slammers” also remains the same.
CBP has routinely classified similar products within heading 2008, HTSUS. In NY N258274, dated November 13, 2014, CBP classified smoothie-type fruit snacks – designed for adult health and wellness nutrition and containing various fruit purees and whey protein – within heading 2008, HTSUS. Similarly, in NY N177715, dated August 15, 2011, CBP classified six baby food products, consisting of water, various fruit purees, and various fruit concentrates, within heading 2008, HTSUS.
Accordingly, for the above reasons, we affirm HQ H314968, dated March 15, 2021, which correctly classified the “Slammers.” Specifically, we find that the “Slammers” - “Awesome Acai Strawberry Apple,” “Epic Orange Mango,” “Chill’n Yumberry Banana Blueberry,” “Pomegranate Grape Crush,” and “Watermelon Kiwi Crush” - are properly classified in heading 2008, HTSUS, specifically, subheading 2008.97.1040, HTSUSA, which provides for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears: Other.” If not imported in airtight containers, the “Awesome Acai Strawberry Apple,” “Epic Orange Mango,” “Chill’n Yumberry Banana Blueberry,” “Pomegranate Grape Crush,” and “Watermelon Kiwi Crush,” are classified in subheading 2008.97.9094, HTSUSA, which provides for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: Other: Other: Other.”
Having affirmed the tariff classification of the “Slammers” set forth within HQ H314968, we now turn to the issue of USMCA eligibility. Since the tariff classification of the “Slammers” is unchanged, the “Slammers” are not eligible for preferential tariff treatment under the USMCA.
Sincerely,
Yuliya A. Gulis, Acting Director
Commercial and Trade Facilitation Division