CLA-2:CO:R:C:G 086920 SER
Mr. John M. Peterson
Neville, Peterson & Williams
39 Broadway, Suite 2201
New York, NY 10006
RE: "Suitable for medicinal use"
Dear Mr. Peterson:
This is in reference to your request for a clarification of
the definition of the term "suitable for medicinal use," which
appears in subheading 2918.21.1000 of the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA). You suggest
that the Customs Service should adopt a standard for what is
"suitable for medicinal use" based on whether a substance is of
U.S.P. grade. You state that under the Tariff Schedules of the
United States (TSUS), the standard "suitable for medicinal use"
was generally met when a substance was of U.S.P. grade, but note
that the fact that a substance was of U.S.P. grade did not per se
demonstrate that it was "suitable" for use as a medicinal
preparation or a drug. This standard was helpful in
demonstrating that the product may be practically fit or
commercially acceptable for a medicinal use. You state that it
would be more convenient to have the standard strictly based on
the designation of U.S.P. or technical grade.
As you note in your brief, the courts have created a
relatively well-defined standard on what is "suitable for use."
Though these decisions were based on provisions in earlier
tariffs, it is Customs position that, absent a significant change
in the nomenclature in the HTSUSA, decisions under prior tariff
law are given appropriate weight on a case-by-case basis in
making determinations in the HTSUSA. This is supported by the
House Conference Report, NO. 100-576 to the Omnibus Trade and
Competitiveness Act of 1988 (P.L. 100-418), p.549-550, in which
the conference committee stated, ". . . on a case-by-case basis
prior decisions should be considered instructive in interpreting
the HTS, particularly where the nomenclature previously
interpreted in those decision remains unchanged and no
dissimilar interpretation is required by the text of the HTS."
We do not disagree with you that the courts have ruled
uniformly and repeatedly that the term "suitable for use" means
"actually, practically and commercially fit" for such use.
United States v. Amerman & Paterson, et al., 9 Ct. Cust. Appls.
244 (1919). In interpreting this term, in the absence of
contrary indications, there is little reason to deviate from the
common and commercial understanding of this term as was used
under the TSUS. There is also no compelling reason potentially
to expand the scope of "suitable for medicinal use" to include
all substances that are of U.S.P. grade.
Because there is no actual case under consideration here, it
is not necessary for us to conjecture as to exactly which
substances are of U.S.P. grade and at the same time are not
suitable for medicinal use. It does appear reasonable,
however, to note with respect to salicylic acid that because
U.S.P. grade salicylic acid is actually, practically, and
commercially fit for medicinal use, it will be classified in the
subheading reserved for this acid and its salts "suitable for
medicinal use." This is so, regardless of the intermediate or
additional uses that might be made of it. Moreover, whether the
product is classified in subheading 2918.21.1000 or in
2918.21.5000, HTSUSA, would ordinarily be determined by the
condition of the goods as imported, and not by any reference to
the product's actual use after importation.
This letter is being issued as an information letter under
177.1(d)(2) of the Customs Regulations (19 CFR 177.1(d)(2)),
because the classification decision on the prospective
transaction has already been issued and neither your client nor
the Customs Service proposes any change to it, and because the
matter under consideration here is a well-established
interpretation or principle of Customs law, the knowledge of
which may benefit your client. Also this letter provides the
information that our ruling of April 27, 1988 (New York Ruling
Letter 829436) was not intended to be understood to equate all
U.S.P.-listed products as suitable for medicinal use. As an
information letter, as defined by our regulations, this letter
carries no value as precedent and does not bind the Customs
Service in subsequent rulings or decisions in any way.
John Durant, Director
Commercial Rulings Division