CLA-2-17:OT:RR:NC:232
Ms. Pamala Sturhan
Kellogg Company
67 W. Michigan Avenue
Battle Creek, MI 49016
RE: The tariff classification of Kellogg’s Froot Loop and Frosted Flake Bars from Mexico
Dear Ms. Sturhan:
In your letter dated March 29, 2012 you requested a classification ruling. Samples were submitted along with your request. They were examined and disposed of. The products, Froot Loops Bars and Frosted Flakes Bars are imported under the “Kellogg’s” brand name. They are sold to consumers in multi-pack boxes and as individual bars through various retail outlets such as grocery stores and drug stores.
The Froot Loops Bars are a multi-colored cereal shaped in bar form with a vanilla flavored coating on the bottom portion of the bar. The cereal bar is packed in a foil wrapping, decorated with the Kellogg’s Froot Loops logo and has a net weight of 18 grams. They are said to contain 20-30 percent froot loop cereal, 10-20 percent vanilla flavored coating, 6-12 percent glucose solids, 6-12 percent glucose, 6-12 percent high fructose corn syrup, 2-6 percent palm oil, 2-6 percent sugar, 2-6 percent dextrose and less than 2 percent of the following: invert sugar, sorbitol, tricalcium phosphate, glycerin, partially hydrogenated soybean and cottonseed oil, vitamin C (ascorbic acid), soy lecithin, natural flavors, maltodextrin, vitamin E (alpha tocopherol), Vitamin B6 (pyridoxine hydrochloride), vitamin B1 (thiamin mononitrate) and BHT.
The Frosted Flakes Bars are corn flakes shaped in bar form with a chocolate flavored coating on the bottom of the bar. The cereal bar is packaged in a foil wrapping, decorated with the Kellogg’s Frosted Flakes logo and has a net weight of 21 grams. They are said to contain 35-75 percent corn flakes, 15-25 percent chocolate flavored coating (cocoa content is less than 6 percent), 3-9 percent glucose, 3-9 percent high fructose corn syrup, 2-6 percent glucose solids, 2-6 percent soybean and palm oil, 2-6 percent sugar, 2-6 percent dextrose and less than 2 percent of the following: invert sugar, natural flavor, nonfat milk, tricalcium phosphate, sorbitol, glycerin, color added, soy lecithin, vitamin C (ascorbic acid), maltodextrin, wheat starch, vitamin E ( alpha tocopherol), vitamin B1 (thamin mononitrate), vitamin B6 (pyridoxine hydrochloride) and BHT.
In your letter, you suggested that both bars should be classified in either heading 1904, Harmonized Tariff Schedule of the United States (HTSUS), as a prepared food or heading 2106, Harmonized Tariff Schedule of the United States (HTSUS), as other food preparations not elsewhere specified or included. Based on the information provided, we disagree with your proposal.
The bars will be classified in heading 1704 as confectionery, as they are excluded from classification as a sweetened food preparation of Chapter 19 as stated in the language of the HTSUS, the Explanatory Notes (ENs). CBP has consistently taken the position that a confection is a product that, in its condition as imported, is ready for consumption at retail as a confectionery, is marketed as such and is not an ingredient of another food. In their condition as imported, the Froot Loops and Frosted Flakes Bars are ready for consumption without further preparation and they are not sold as an ingredient of another food.
In summary, because the Froot Loop and Frosted Flakes Bars are sweet-tasting articles eaten for their sweetness, composed mostly of sugar, are ready for consumption, are viewed by Kellogg as a confectionery, and are marketed and sold as snacks, the Bars belong to the class or kind of goods that are considered confectioneries. In addition, because the Bars are a cereal which is coated with sugar in a proportion that gives it the character of a sugar confectionery of heading 1704, HTSUS, pursuant to EN 19.04(a)
The applicable subheading for the Kellogg Froot Loop and Frosted Flake Bars will be 1704.90.3550, Harmonized Tariff Schedule of the United States (HTSUS), which provides for sugar confectionery (including white chocolate), not containing cocoa: other: confections or sweetmeats ready for consumption: other: other: put up for retail sale: other. The rate of duty will be 5.6 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Frank Troise at 646-733-3031.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division