CLA-2-21:OT:RR:NC:N2:228
Mr. John Peterson
Neville Peterson LLP
One Exchange Plaza
55 Broadway, Suite 2602
New York, NY 10006
RE: The tariff classification of a dietary supplement from Canada
Dear Mr. Peterson:
In your letter dated November 18, 2018, you requested a tariff classification ruling on behalf of your client, A. Lassonde Inc., Canada.
A list of ingredients, and literature on the product accompanied your letter. The product is known as “Milk Beverage Hydra+,” and is said to contain milk, amidon pureflo, sugar, and disodium phosphate. This Hydra+ product is a specially-thickened liquid which is designed for consumption by persons suffering from dysphagia, a chronic health condition which makes it difficult for a person to swallow. Because of the added thickener, this liquid does not have a normal consistency, but is thicker with the consistencies of nectar and honey. It is available in one-liter packages, with a suggested serving size of 4 ounces, and in single-serve packages of 118 ml.
In your letter, you suggested that “Milk Beverage Hydra+” be classified under subheading 2202.99.90 which provides for waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009 . . . other . . . other . . . other. You also suggested a secondary tariff classification under subheading 9817.00.96 which provides for articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles . . . other [than for the blind] . . . other.
According to the literature provided, it explains that a dysphagia diet has different textures of foods and liquids. It is used for people with swallowing problems because it makes it easier to chew and move food in the mouth. Also, it reduces the risk of food going into the windpipe or trachea.
Beverages of Chapter 22, Harmonized Tariff Schedule of the United States (HTSUS) must be potable in their imported condition. Due to the thickness consistencies, this product is not potable and is precluded from classification as a beverage of Chapter 22, HTSUS. Further, beverages of Chapter 22 do not have dosage form, consist of drinkable liquid substances which are marketed, sold, or distributed in multi-ounce containers (e.g., bottles, for consumption in significant (i.e., multi-ounce) and non-measured quantities, and not necessarily consumed for strictly health or nutritional purposes.
Headquarters Ruling Letter (HRL) H121544, a copy of which was enclosed with your letter, with regard to U.S. Note 4(b), Chapter 98, HTSUS, states that subheadings . . . 9817.00.96 do[es] not cover . . . (iv) medicine or drugs. . . . It further states that there are no rulings on whether a metabolic disease/disorder or severe food allergies/intolerances are considered a handicap for classification purposes. . . . In all the other CBP rulings regarding classification under heading 9817, the conditions or diseases directly impaired one’s physical ability to perform one or more of the major life activities listed. . . . Accordingly, CBP finds that medical foods that provide the nutritional support as part of the dietary management of metabolic disease/disorder or severe food allergy/intolerance are not classifiable under heading 9817, HTSUS. . . . Dietary medical products are classifiable under heading 2106, HTSUS, as food preparations not elsewhere specified or included. Based on the literature, the ingredients, Chapter 22 remarks, and HRL H121544 remarks, “Milk Beverage Hydra+” will be classified elsewhere.
The applicable subheading for the “Milk Beverage Hydra+” will be 2106.90.9897, HTSUS, which provides for food preparations not elsewhere specified or included . . . other . . . other . . . other . . . other . . . containing sugar derived from sugar cane and/or sugar beets. The general rate of duty will be 6.4 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 the World Wide Web at https://hts.usitc.gov/current.
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 Bruce N. Hadley, Jr. at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division