CLA-2 CO:R:C:F 088914 JGH
Mr. Frank Brennan
DeAngelus & Schaffer
The Willard Office Bldg.
1455 Pennsylvania Ave., N.W.
Washington, D.C. 20004
RE: Classification of Bounty Coconut-Flavored Ice Cream Bar
Dear Mr. Brennan:
Your letter of March 21, 1991, concerns the classification
under the Harmonized Tariff Schedule of the United States (HTSUS)
of an ice cream bar made in France with milk from Great Britain.
The bars are said to be made from unflavored ice cream mix
which is pasteurized and then blended with coconut to form the
center of the bar. The center mix is then frozen, extruded, and
cut into the oval shape characteristic of the Bounty candy bar.
The bars are further cooled and then covered with chocolate, and
again cooled. They are packaged 2 bars per wrapper, on which
it is stated that the product is a coconut flavored ice cream bar
and weighs 1.7 fluid ounces.
The approximate composition of the frozen Bounty ice cream
bar is given as:
Value Weight Volume
Chocolate 57% 40.5% 27%
Ice Cream 26% 49.0% 38%
Coconut 17% 10.5% 12%
Air n/a n/a 23%
- 2 -
Whether Bounty ice cream bars are classified as other
food preparations in subheading 2106.90.6095, HTSUS, or under
the provision for ice cream and other edible ice, whether
or not containing cocoa, in subheading 2105.00.00, HTSUS.
LAW AND ANALYSIS:
It is your view that the ice cream bars should be
classified under the provision for other food preparations
not elsewhere specified or included in subheading 2106.90.6095,
HTSUS. You base this opinion on the appearance and taste of
the bar, which you feel is similar to a coconut bar. You assert
that the value, weight and volume of the product shows that the
chocolate and coconut constituents provide the essential
character; the alternative classification for the product would
be subheading 2105.00.00, HTSUS, the provision for ice cream and
other edible ice, whether or not containing cocoa.
Under the prior tariff law, Tariff Schedules of the United
States, the Summaries of Trade and Tariff Information, Schedule
1, Volume 4, provided information as to the scope of the
provision in the TSUS for ice cream. It noted that the standards
of identity were set forth in 21 CFR, in which ice cream was said
to be a frozen food containing cream or butterfat, flavoring,
sweetening and usually eggs. The most important dairy products
used in ice cream are fluid, dried or condensed milk or cream,
butter, and butter oil.
The Explanatory Notes to the Combined Nomenclature of the
European Communities states that for the purposes of heading
"ice cream and other edible ice" means food
preparations, whether or not put up for
retail sale, whether or not containing cocoa
or chocolate (even as a coating), which are
in a solid or paste-like state as a result of
freezing and which are intended to be eaten
in that state.
The essential characteristic of these products
is that they revert to a liquid or semi-liquid
state at an ambient temperature of about 0 degrees C.
However, preparations which, although they
have all the the appearance of edible ices,
do not possess the essential characteristics
described above, fall in either Heading
18.06, Heading 19.01, or Heading 21.06, as
The products of this subheading (2105) have varied
names (water ices, ice cream, cassata, Neapolitan
slices, etc.) and are put up in varied forms;
they may contain cocoa or chocolate, sugar,
vegetable fat or milkfat, milk (whether or not
skimmed), fruit, stabilizers, flavourings,
The total content of these fats does not, in
general, exceed 15% by weight of the finished
product. However, certain specialties, for
the manufacture of which a large proportion of
cream is used, may contain a total about 20% by
weight of fat.
In the production of certain edible ices, air is
incorporated into the raw materials used in order
to increase the volume of the finished product
It is your view that a previous Customs decision (HRL
085364) sets forth a standard that a product has to have 50% or
more ice cream to be classifiable in heading 2105, HTSUS.
However, a review of the decision shows that no percentage
breakdown was given for the components. The statement that the
product contained at least 50% ice cream was made merely for
illustrative purposes, so that it would be clear that it was
an ice cream product and not another type of food product with
a minimum of ice cream. In any event, with products of this
type, it is the intended purpose of the product which has to be
considered in determining the "essential character", more than
an arbitrary component percentage. In this case, the bar is
intended to be, and has all the characteristics of, an ice cream
Under the former tariff law, TSUS, no special provision
was made for the ice cream novelty, and, as a result, while it
was frequently classified as an "edible preparation" in item
183.05, TSUS, ice cream novelties found to be in chief value of
milk or cream were classifiable in item 118.30, TSUS, and
subject to quota restrictions.
However, under the HTSUS, heading 2105 would include both
ice cream and ice cream novelties, if they fell within the
definition of the aforementioned Explanatory Notes to the
Combined Nomenclature of the European Communities: A food
preparation, which is in a solid or paste-like state as a result
of freezing and intended to be eaten in that state. An essential
characteristic of these products is that they revert to liquid
or semi-liquid state at an ambient temperature.
The instant product has the essential character of the
goods provided for in heading 2105. It is a frozen food
preparation based on ice cream containing added sweeteners
and flavorings, intended to be eaten in this state. It is
the type of product which would revert to a liquid or semi-
liquid state at ambient temperature; in its production, air
is incorporated into the material in order to increase the
volume. And what is also relevant in considering the essential
character is that it not only tastes like coconut ice cream, but
it is evident from the legend on the wrapper, that it is to be
marketed as an ice cream novelty.
It is believed that a valid distinction can be drawn
between ice cream classifiable in subheading 2105.00.0010,
and ice cream novelties classifiable in subheading
Ice cream is the product which satisfies the standards
of identity of 21 CFR 135; and, although it may be flavored,
it is not combined with other food ingredients to make it
something more than ice cream - e.g. ice cream sandwich or ice
cream cake. Ice cream novelties, on the other hand, are frozen
food preparations consisting essentially of ice cream in
combination with other food components to make a variety of
specialty items, such as, chocolate covered ice cream bars,
ice cream sandwich, ice cream cake, coated ice cream cones,
e.g. "Drumsticks", and similar frozen confections.
Both ice cream and ice cream novelties are classifiable
in heading 2105, HTSUS, since the essential character of these
products is ice cream. Ice cream that fits the traditional
definition, i.e., a frozen food containing cream or butterfat,
flavoring and usually eggs, and meeting the identity standards
of 21 CFR 135, is classifiable in subheading 2105.00.0010, HTSUS.
Ice cream novelties, which, in addition to ice cream, contain
other food ingredients to make products such as those shown
above, are classifiable in subheading 2105.00.0015, HTSUS.
Bounty ice cream bars are ice cream novelties and,
therefore, are classifiable in subheading 2105.00.0015, HTSUS.
The rate of duty is 20 percent ad valorem. Products classifiable
in this provision are subject to quota restrictions of subheading
9904.10.60, HTSUS, which limits importations to 2,721 kilograms
per year. In addition, an import license issued by the U.S.
Department of Agriculture is required at the time such
merchandise is withdrawn from warehouse or entered for
John Durant, Director
Commercial Rulings Division
6cc A.D.,N.Y. Seaport