CLA-2 CO:R:C:F 950299 LPF
Mr. Klaske de Jonge
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.
LAW AND ANALYSIS:
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
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
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
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;...food
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
John Durant, Director
Commercial Rulings Division
6 cc: AD NY Seaport
2 cc: CIE
1 cc: NIS John Maria