CLA-2 CO:R:C:F 950299 LPF

Mr. Klaske de Jonge
Marketing Manager
Nutricia-Loma Linda, Inc.
11503 Pierce Street
Riverside, CA 92505

RE: Classification of Nutrilon Premium infant formula in heading 1901 and subject to dairy quota in heading 9904

Dear Mr. de Jonge:

This is in response to your letter of August 21, 1991, submitted on behalf of Nutricia-Loma Linda, Inc. Your inquiry requests the proper classification of Nutrilon Premium infant formula under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was not submitted with your request for a binding ruling.


The product, Nutrilon Premium, is a nutritionally complete cow's milk-based infant formula containing 87.43 percent demineralized water, 5.23 percent demineralized whey protein powder, 1.85 percent skimmed milk powder, 1.72 percent lactose and various amounts of vegetable oils, vitamins and minerals. This product will be packaged in 200 milliliter (6.8 ounce) glass bottles for use in clinical trials. The article is imported from the United Kingdom.


Whether the infant formula is classified in heading 1901, HTSUSA, as a food preparation of goods of headings 0401 to 0404 (specifically, milk and whey) not containing cocoa powder; heading 2106, HTSUSA, as a food preparation not elsewhere specified or included; or in heading 2202, HTSUSA, as sweetened or flavored water or another nonalcoholic beverage.



The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. The majority of imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Upon review of the various HTSUSA chapters, it appears that the infant formula is potentially classified in either chapter 22, 21 or 19. Chapter 22 provides for beverages, spirits and vinegar. The Explanatory Notes explain that the products of Chapter 22 constitute a group quite distinct from the foodstuffs covered by the other HTSUSA chapters. Chapter 22 includes products falling into four main groups: water and other non- alcoholic beverages; fermented alcoholic beverages; distilled alcoholic liquids and beverages; and vinegar.

For tariff purposes, a beverage is a product which is drinkable in its condition as imported. Strohmeyer & Arpe Co. v. United States, 28 CCPA 34, C.A.D. 121. However, this does not indicate that all potable liquids are necessarily considered beverages under the HTSUSA. The delineation of the main groups of products which constitute a beverage in Chapter 22 corroborates this point.

If we attempted to classify the product as a beverage in Chapter 22, heading 2202 would appear to be the appropriate provision. It provides for waters, including mineral and aerated waters, with sugar, sweetening matter or flavored and other non- alcoholic beverages, not including fruit or vegetable juices. Pursuant to GRI 1, we classify the product according to the terms of the heading. The product is not merely a water as described in 2202, since it contains milk, whey and a substantial number of vitamins. Thus, it must either fit the description of an "other non-alcoholic beverage" or be classified elsewhere. The Explanatory Notes to 2202 explain that the heading covers non- alcoholic beverages such as: lemonade, orangeade and cola; tamarind nectar; and certain other beverages ready for consumption, such as those with a basis of milk and cocoa.


The infant formula is not an "other non-alcoholic beverage." Heading 2202 is limited and is not intended to include all drinkable liquids without a certain alcoholic content. The Explanatory Notes to 2202 recognize such a limitation by specifying that 2202 does not cover "non-alcoholic beverages" classified in other headings such as 2009 (vegetable juices) or 2201 (waters). In addition, the Explanatory Notes specify types of "non-alcoholic beverages" included in 2202 , inter alia, "certain" other beverages ready for consumption. Thus, other drinkable liquids that apparently could qualify as "other non- alcoholic beverages" actually may be classifiable in other headings and sometimes in other chapters.

The subject product is not merely a beverage, that is, liquid for drinking, generally without consequence to the amount ingested, but rather is a vital food and nutrient source for an infant. With its high milk, protein and vitamin content the product would be purchased in order to provide sustenance for and maintain the health and well-being of an infant. Food is defined as a "material...used in the body of an organism to sustain growth, repair, and vital processes and to furnish energy; also: such food together with supplementary substances (as minerals, vitamins and condiments)." Webster's Ninth New Collegiate Dictionary 480 (1990). Therefore, although the product is milk based, it is best described as a food preparation.

Although the product will be imported for clinical trials at medical centers, this does not indicate that the product is classifiable in chapter 30 as a pharmaceutical product. Note 1(a) to Chapter 30 explains that the chapter does not cover fortified foods or food supplements. Likewise the Explanatory Notes to headings 3003 and 3004, providing for medicaments, exclude food preparations or supplements containing nutritional or medicinal substances either to increase the product's nutritional value or to maintain health or well-being without indicating use for the prevention or treatment of any disease or ailment. Although the information, from the inquirer, describes the product as a nutritional formula, it does not indicate that the product is used to prevent or treat any diseases or ailments. Thus, we must classify the product in a heading providing for a food preparation rather than for a beverage or pharmaceutical product.


Heading 1901 provides for food preparations of goods of headings 0401 to 0404, not containing cocoa powder not elsewhere specified or included, while heading 2106 provides for food preparations not specified or included elsewhere. The Explanatory Notes to heading 1901 explain that products included in this heading contain, in addition to natural milk constituents (milk enriched in vitamins or mineral salts), other ingredients not permitted in the products of headings 0401 to 0404. Headings 0401 and 0404 provide for milk and whey, respectively. In addition, the Explanatory Notes provide that 1901 includes preparations in powder or liquid form used as infant food and consisting of milk to which secondary ingredients have been added.

Having determined that heading 1901 provides for the product, since two of its primary ingredients are milk and whey, there is no need to resort to the "basket" provision, heading 2106, which provides only for products not specified elsewhere. As between the two headings, the former appropriately and specifically provides for the product as opposed to the latter. Because it is possible to classify this product by the terms of heading 1901 in accordance with GRI 1, it is not necessary to determine essential character as set forth in GRI 3(b) for mixtures. Even if the product is considered a mixture, GRI 1, would still apply since food preparations in heading 1901 include mixtures.

The 200 milliliter (6.8 ounce) bottles are considered retail size. In addition, we are assuming that the product will be used in clinical trials in order to undergo merchandising tests. For these reasons, the infant formula is put up for retail sale and classifiable in subheading 1901.10.0000.


The Nutrilon Premium infant formula is classifiable in subheading 1901.10.0000 HTSUSA, as "[m]alt extract; preparations of goods of headings 0401 to 0404, not containing cocoa powder..., not elsewhere specified or included: Preparations for infant use, put up for retail sale." The general column one rate of duty is 17.5 percent ad valorem.


Because the product is subject to quota quantity restrictions in subheading 9904.10.60, an import license issued to the importer by the United States Department of Agriculture, will also be required at the time such merchandise is entered for consumption into the United States. Questions regarding licensing procedures and applications for license to import products subject to dairy quotas should be addressed to:

Foreign Agricultural Service U.S. Dept. of Agriculture-Room 5531 Import Policies & Trade Analysis Division Washington, D.C. 20250-1000 (202) 720-5270


John Durant, Director
Commercial Rulings Division

6 cc: AD NY Seaport
2 cc: CIE
1 cc: NIS John Maria