OT:RR:CTF:EMAIN H338618 SKK
TARIFF NO: 2404.12.05
Center Director
Electronics Center of Excellence and Expertise
U.S. Customs and Border Protection
301 E. Ocean Blvd., Suite 1400
Long Beach, CA 90802
ATTN: Japhy O'Doherty, Import Specialist; John Gerber, Supervisory Import Specialist
RE: Request for Internal Advice; Classification of disposable electric personal vaping devices; pre-filled; non-refillable; rechargeable batteries
Dear Director:
This letter is in response to your request for Internal Advice (IA), dated March 22, 2024,
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 pre-filled personal electronic vaporizing devices. No samples were provided for examination.
FACTS:
The first device is identified as the "Vapex Iced Mint," described as a one-piece vaporizing unit imported pre-filled with a flavored 5% salt nicotine liquid mix. The device incorporates electronics that heat and vaporize the liquid for inhalation by the end user. The Vapex Iced Mint is described as a 7000-puff device incorporating a 650mAH rechargeable battery, USB C port for charging, and a 15ml LED. It is not designed to be refilled. The Vapex Iced Mint is included in a line of products described on the Vapex website as disposable and may be purchased individually or in a 10-pack. See
https://ivapex.com/products/platinum-iced-mint-unit-1 (site last visited 20 June, 2024).
The second device is identified as the "Lost Mary Disposable POD Device MO5000
Blueberry Raspberry Lemon." The device is a one-piece vaporizing unit imported pre-filled with a flavored liquid (50 mg/ml nicotine). The device incorporates electronics that heat and vaporize the liquid for inhalation by the end user. The "Lost Mary Disposable POD Device MO5000 Blueberry Raspberry Lemon" is described as a 5000-puff device with a 500 mAh rechargeable battery, USB C port for charging, and is described on the Lost Mary website as a "rechargeable disposable device." See https://www.lostmary.com/product/LOST-MARY-MO5000.html (site last visited 20 June, 2024). The website describes the Lost Mary line of "rechargeable disposable" vape systems as follows:
Rechargeable disposable vape system offers a convenient and eco-friendly alternative for vaping enthusiasts. Rechargeability is their standout feature, allowing users to power up their devices for multiple uses. With a rechargeable feature, vapers can enjoy extended usage periods without constantly purchasing new disposable vapes.
Another essential feature is their disposable nature, which offers vapers the convenience of a hassle-free vaping experience. Once the e-liquid runs out or the battery reaches its limit, users can dispose of the device responsibly without contributing to single-use waste. This makes them a more sustainable option compared to traditional disposable vapes.
https://www.lostmary.com/blog/the-rise-of-rechargeable-disposable-vape.html (site last visited 20 June, 2024).
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)
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 subject devices are capable of being recharged does not negate their status as disposable devices for purposes of heading 2404, HTSUS. The rechargeable batteries merely enable the devices to use up their reservoirs of pre-filled nicotine solution that allow a user up to 5,000 and 7,000 "puffs" respectively, 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 "Vapex Iced Mint" and "Lost Mary
Disposable POD Device MO5000 Blueberry Raspberry Lemon" disposable personal vaporizing devices are classified under heading 24.04, 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