OT:RR:CTF:EMAIN H335916 SKK
Center Director
Electronics Center of Excellence & Expertise
U.S. Customs and Border Protection
301 East Ocean Blvd., Ste. 900
Long Beach, CA 90802
Attn: Scott Titus, Import Specialist; Michael Stevens, Supervisory Import Specialist
RE: Request for Internal Advice; Classification of pre-filled disposable electric personal vaping devices; non-refillable; non-rechargeable battery; rechargeable battery
Dear Director:
This letter is in response to your request for Internal Advice (IA), dated October 16, 2023, made pursuant to 177.11 of Title 19 of the Code of Federal Regulations (19 CFR
177.11), regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of two styles of personal electronic vaporizing devices imported pre-filled with a nicotine-based e-liquid in a sealed reservoir. No samples were provided for examination.
FACTS:
The first device contains a built-in reservoir that, depending upon the model, contain between 6ml - 9ml of nicotine-based liquid to support 2500-4000 puffs. The device incorporates built-in pre-charged 1000mAh batteries and is neither refillable nor rechargeable.
The second device contains a built-in reservoir that, depending upon the model, contains between 14ml - 15ml of nicotine-based liquid to support 5000-6000 puffs. The device incorporates built-in pre-charged 650mAh batteries that are rechargeable via a USB-C cable. The device is not refillable.
ISSUE:
Whether the subject merchandise is classifiable under heading 2404, HTSUS, which provides for "[P]roducts containing tobacco, reconstituted tobacco, nicotine, or tobacco or nicotine substitutes, intended for inhalation without combustion" or under heading 8543, HTSUS, which provides for "[E]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this Chapter."
LAW AND ANALYSIS:
Classification under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods will be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. If 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 will be applied in order.
The following headings are under consideration for the subject devices:
2404 Products containing tobacco, reconstituted tobacco, nicotine, or tobacco or nicotine
substitutes, intended for inhalation without combustion; other nicotine containing
products intended for the intake of nicotine into the human body
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this Chapter.
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 interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 24.04(A)(5) provides that the heading includes:
Disposable electronic cigarettes (disposable e-cigarettes) and similar disposable personal electric vaporising devices, that incorporate both the product intended for inhalation without combustion (e.g., e-liquid, gels) and the delivery mechanism in an integrated housing, that are designed for disposal after the incorporated product is exhausted or the battery runs out (not designed for refilling or recharging)." (emphasis added)
The EN to heading 8543 provides, in pertinent part, that the heading covers "all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature." (original emphasis) EN 85.43(11) further provides that the heading covers:
[E]lectronic cigarettes and similar personal electric vaporising devices.
This group covers:
(i) Devices commonly known as "electronic cigarettes" that heat and vaporise liquid or solutions which the user inhales directly, of subheading 2404.12 or 2404.19, with or without nicotine; and
(ii) Other similar personal electric vaporising devices, such as electrically heated tobacco systems (EHTS), ultrasonic vibration devices, etc., that generate aerosol from tobacco products (products of subheading 2404.11) or other products containing nicotine, or tobacco or nicotine substitutes (products of subheading 2404.12 or 2404.19) intended for inhalation without combustion.
These are electrically operated devices that operate, without the use of combustion, to produce an aerosol for direct inhalation by the user through a mouth-piece. They incorporate specific electric or electronic components, such as a heating element (e.g., atomiser), or an ultrasonic vibrator, etc., that allow the device to generate aerosol from a liquid, solution, gel, tobacco plug, or other product designed to be used in the device. They may resemble smoking products of different shapes (e.g., cigarette, cigar, smoking pipe or water pipe), or they may resemble everyday items such as a writing pen or USB flash drive, etc. These products are designed to be refilled or used with replaceable cartridges, tobacco plugs or the like.
This heading excludes:
(a) Disposable electronic cigarettes (disposable e-cigarettes) and similar disposable
personal electric vaporising devices, that incorporate the product intended for
inhalation without combustion (e.g., e- liquid, gels) in the housing and are disposed of
after the product is exhausted or the battery runs out (not designed for refilling or
recharging) (heading 24.04). (emphasis added)
Heading 2404, HTSUS, provides for, in pertinent part, "[P]roducts containing ... nicotine . . . intended for inhalation without combustion." Heading 8543, HTSUS, provides for "[E]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this Chapter." Each heading describes the subject personal electric vaporizing devices inasmuch as they are products that contain nicotine intended for inhalation without combustion, as well as electrical apparatus with an individual function not specified or included elsewhere in Chapter 85.
The ENs are instructive in regard to the scope of personal electric vaporing devices covered by heading 2404 and heading 8543, HTSUS. The EN to heading 8543 provides that the heading covers electrical apparatus not covered by any other heading of Chapter 85 or the Nomenclature and excludes disposable vaporizers designed to be refilled or used with replaceable cartridges. EN 24.04(A)(5) states that the heading includes disposable personal electric vaporizing devices that incorporate the product to be vaped and the delivery mechanism in an integrated housing "that are designed for disposal after the incorporated product is exhausted or the battery runs out (not designed for refilling or recharging)." The use of the word "or" in the EN to 24.04 establishes that two mutually exclusive criteria render an electric personal vaping device "disposable" for purposes of classification in heading 24.04: (i) the device is designed to be disposed of after depletion of the incorporated product and is not designed to be refilled, or; (ii) the device is designed to be disposed of when the battery is depleted and is not designed to be recharged. This is consistent with the legal text of both headings at issue, inasmuch as a refillable or rechargeable product would essentially be an electrical machine or apparatus while a product intended to be discarded after use would essentially be a tobacco product.
Based on the foregoing, the determinative issue is whether the subject personal electric vaporizing devices are disposable; if so, classification is proper under heading 2404, HTSUS, and if not, classification properly falls to heading 8543, HTSUS. In the instant analysis, both of the subject devices satisfy the first "disposable" criterion in that they are designed to be discarded when their pre-filled nicotine solutions are depleted, and neither can be refilled or accommodate replacement cartridges. As such, the subject devices are disposable personal electric vaporizing devices covered by heading 2404, HTSUS. The fact that the second device is capable of being recharged does not negate its status as a disposable device for purposes of heading 2404, HTSUS. The rechargeable batteries merely enable the device to use up its reservoir of pre-filled nicotine solution that allow a user up to 6,000 "puffs," which would otherwise be wasted if the batteries were to deplete before the solution is exhausted.
As the subject personal vaporizing devices contain nicotine intended for inhalation
without combustion, and they are designed to be discarded once their pre-filled solutions of vaping product are depleted, they are classified in heading 2404, HTSUS. This outcome is supported by the EN to heading 8543, which excludes those electrical apparatus covered more "not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature."
HOLDING:
By application of GRIs 1 and 6, the subject personal vaporizing devices are
classified under heading 2404, specifically subheading 2404.12.05, HTSUS, which provides for "[P]roducts containing tobacco, reconstituted tobacco, nicotine, or tobacco or nicotine substitutes, intended for inhalation without combustion; other nicotine containing products intended for the intake of nicotine into the human body: Products intended for inhalation without combustion: Other, containing nicotine: Mixtures for personal electric or electronic vaporizing devices." The applicable rate of duty is 6.5% 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 on the U.S. International Trade Commission's website at http://www.usitc.gov.
You are directed to mail this decision to the Internal Advice applicant no later than 60 days from the date of this letter. On that date the Office of Trade, Regulations and Rulings, will make the public version of the decision available to CBP personnel and to the public at www.cbp.gov by means of the Freedom of Information Act and by other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division