CLA-2 CO:R:C:G 084642 JGH

Harvey M. Applebaum, Esq.
Covington & Burling
1201 Pennsylvania Ave., N.W.
P.O. Box 7566
Washington, D.C. 20044

RE: Cream Liqueur Whipped Topping

Dear Mr. Applebaum:

Your letter of May 30, 1989, concerns the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a dessert whipped cream topping made in Holland, and imported by W. A. Taylor and Company, a subsidiary of Hiram Walker and Sons, Inc.

FACTS:

The product is said to consist of about 24 percent by weight cream having a butterfat content of 35 percent, 37 percent by weight liqueur concentrate at 32 percent alcohol by volume, 16 percent by weight corn sugar, 12 percent water, 4 percent cacao fat, 3.5 percent dry glucose, and a stabilizer.

The product is packaged in an aerosol container and is to be sprayed on the top of hot drinks, fruits and parfaits, and desserts such as cakes, brownies, puddings and pies. It is described as being a liqueur in a new form.

A comparison of a cream liqueur with the aerosol topping was given as follows: Per Liter Cream Liqueur Aerosol Liqueur Coffee Liqueur Concentrate 0 417 g (32.8 % Alcohol by Volume) Whiskey Liqueur Concentrate (41.8% alcohol by volume) 469 g 0 g

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Fresh Cream 35% Fat 366 g 270 g Dry Corn Sugar 0 g 180 g Water 160 g 140 g Cacao Fat 0 g 45 g Dry Glucose and/or Sucrose 32 g 40 g Stabilizers 34 g 34 g

ISSUE:

Whether the whipped cream topping is classifiable under the provision for cordials, liqueurs, kirschwasser and ratafia in subheading 2208.90.45, HTSUS, or the provision for other food preparations of goods of headings 0401 to 0404, not containing cocoa powder or containing cocoa powder in a proportion by weight of less than 10 percent, not elsewhere specified or included: articles of milk or cream not specially provided for, in subheading 1901.90.3040, HTSUS, and subject to the quota restraints of subheading 9904.10.60, HTSUS.

LAW AND ANALYSIS:

Essentially, it is your contention that the product is a liqueur modified for aerosol use and that the alcohol gives the whipped cream product its essential character. You also assert that the product is an emulsion as described in the Explanatory Notes to Chapter 22, HTSUS, in listing the types of beverages included in that chapter.

Classification under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first by the headings and relative Section and Chapter Notes. GRI 3(b) states that composite goods of different materials which can not be classified by reference to GRI 3(a), shall be classified as if they consisted of the material which gives them their essential character. GRI 3(c) provides that when goods cannot be classified by reference to GRI 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those of equal merit.

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The Explanatory Notes which should be consulted for guidance in interpretations of the provisions of the HTSUS, state for Chapter 22, "Beverages, Spirits and Vinegar", that heading 2208 covers spirits, liqueurs, and other spiritous beverages. The notes state that the products covered in Chapter 22 are quite distinct from the foodstuffs covered in other chapters. They further identify the various products covered, which include distilled alcoholic liquids and beverages. For heading 2208, the Explanatory Notes mention liqueurs as spiritous beverages.

Thus, for classification purposes, the product has to be a beverage before it can be considered a liqueur and classified in heading 2208. The product is not a beverage but a topping of cream, sugars and a liqueur flavoring. For tariff purposes a beverage is a product which is drinkable in its condition as imported. Strohmeyer v United States, 28 CCPA 34, C.A.D. 121. The product is not and is not intended to be potable in its condition as imported. In the comparison table given for cream liqueur and the aerosol liqueur, it is noted that, while all the ingredients in the liqueur are in the topping, not all the topping components are in the liqueur. The topping contains both corn sugar and cocao fat, which are apparently added because they give the topping a consistency and texture which are not needed for the liquid liqueur. As to the question of considering alcohol as its essential character as set forth in GRI 3(b), this concept is considered where the import to be classified is a mixture, or composite goods of different materials or components, or sets. Even if the topping is considered a mixture, GRI 1 would still apply, since food preparations in heading 1901 include mixtures. In its condition as imported, the product is not a beverage but a food preparation with a milk or cream base. Thus, since heading 1901 would apply, there is no need to resort to GRI 3(c).

Generally, although consideration is given to opinions of other agencies, such opinions are not controlling, especially where there is a specific tariff provision which clearly describes the imported product.

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HOLDING:

Liqueur-flavored whipped cream topping is classifiable under subheading 1901.90.3040, HTSUS, dutiable at the rate of 17.5 percent ad valorem, and subject to the quota restrictions of subheading 9904.10.60, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

6 cc: Area Dir., N.Y. Seaport
Hurley library/peh
084642
1 cc: Terry Cates
Chief, Industry Compliance
Bureau of Alcohol, Tobacco and Firearms
Room 6205
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20226