CLA-2 CO:R:C:F 951849 LPF


Ms. Twyla J. Hanes
Grupo Dilcomer, S.A. de C.V.
Carretera Mexico-Queretaro Km. 37.5
Condominio Industrial Cuamatla Bodega No. 9
Cuautitlan Izcalli, Estado de Mexico, Mexico 54730

RE: Soft and liquid candies in 1704, HTSUSA, as sugar confectionery; powdered drink mixes in 1701, HTSUSA, as cane or beet sugar; powdered dip mixes in 2103, HTSUSA, as mixed condiments and mixed seasonings; picante sauce in 2103, HTSUSA, as sauces and preparations therefor. Country of origin marking exception 19 CFR 134.32(d); ultimate purchaser under 19 CFR 134.1(d).

Dear Ms. Hanes:

This is in response to your letter of May 4, 1992 submitted on behalf of Grupo Dilcomer. Your inquiry requests the proper classification and marking of a variety of food products under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You submitted samples and ingredient breakdowns with your request for a binding ruling.


The products include soft candies, liquid candies, powdered drink mixes, powdered dip mixes and picante sauces. You state that you intend to send boxes, from Mexico, containing the various products to prospective U.S. companies, hoping they will request that Dilcomer produce similar products. The U.S. companies will package the products under their private label, in English. These samples, labeled in Spanish, are not for sale or resale but only are to be used in demonstrating the quality of your products. The soft candies, called "Swits", contain sugar, corn syrup, water, comestible vegetable fat, citric acid, maltodextrin, grenadine and artificial colors and flavors. The flavors will include grape, orange, strawberry, pineapple and peach/mango.


The liquid candy brands, "Abejitas" and "Bug Juice", contain sugar, corn syrup, water, maltodextrin, corn starch, citric acid, artificial colors and flavors. The flavors are lime, grape, orange, strawberry and pineapple.

The powdered drink mixes, called "Flavoraid", all contain sugar and citric acid as main ingredients. The drink mixes are semi-sweetened tamarind and Jamaica flavored and unsweetened strawberry, grape, orange and pineapple flavored.

The powdered dip mixes are called "Dip Sabritas." Bacon- cheese flavor contains powdered cheese, corn flour, modified starch, iodized salt, hydrolyzed vegetable proteins, sugar, monosodium glutamate, parsley and artificial liquid essence for seasoning dressings. Green-onion flavor contains dehydrated onion, iodized salt, sugar, hydrolyzed vegetable proteins, monosodium glutamate and spices. Chile chipotle flavor contains corn flour, powdered chipotle chile pepper, powdered milk, iodized salt, guar gum, powdered dehydrated onion, hydrolyzed vegetable proteins, monosodium glutamate, dehydrated parsley and white pepper.

The liquid picante sauce, called "Sabritas Salsa Picante," has a salsa chile chipotle flavor. It contains purified water, vinegar, chipotle chile pepper, lime juice, refined sugar, iodized salt, spices and 0.1 percent sodium benzoate as a preservative.


Whether the food products entering the U.S., sent directly to companies as samples for soliciting business orders, and not for sale or resale, are dutiable pursuant to their applicable HTSUSA subheadings; and whether, when entered in boxes marked with the country of origin, the products are excepted from individual marking under 19 CFR 134.32(d).


Classification of food products

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. The Explanatory Notes (EN's) 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.


The food products all are classifiable by applying GRI 1, that is, according to the terms of the applicable heading. Heading 1704 provides for sugar confectionery not containing cocoa. The EN's to 1704 indicate that the heading includes, inter alia, caramels and candies. Accordingly, the soft and liquid candies are classifiable in 1704.

Heading 1701 provides for cane or beet sugar in solid form. EN(1) to 2106 explains that powders which have the character of flavored or colored sugars used for the preparation of lemonade and the like, are included in either heading 1701 or 1702. The powdered drink mixes, thus, are classifiable in 1701.

Heading 2103 provides for sauces and preparations therefor; mixed condiments and mixed seasonings. The EN's to 2103 indicate that the heading covers preparations, generally of a highly spiced character, used to flavor certain dishes and made from various ingredients. Accordingly, the liquid picante sauce is classifiable in heading 2103. Additionally, the EN's state that the heading includes mixed condiments and mixed seasonings which contain one or more flavoring or seasoning substances of Chapters other than Chapter 9, such that the mixture no longer has the essential character of a spice within the meaning of Chapter 9. This being the case, the powdered dip mixes also are classifiable in heading 2103.

Country of origin marking

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304) provides that, unless excepted, every article of foreign origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States the English name of the country of origin of the article. This statute was enacted so that the ultimate purchaser would know where the imported goods were produced, in the event that such marking would influence the purchaser's decision to buy the merchandise. Part 134, Customs Regulations (19 CFR 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

Included among the exceptions to country of origin marking is 19 U.S.C. 1304 (a)(3)(D), also provided for in section 134.32(d), Customs Regulations (19 CFR 134.32(d)). Pursuant to this provision, Customs may except from individual marking those articles for which the marking of their containers will reasonably indicate the articles' country of origin. This exception may apply if the articles are imported in properly marked containers and if Customs officials at the port of entry are satisfied that the "ultimate purchasers" will receive the


articles in their original, unopened and properly marked containers. See HRL 734494, issued February 24, 1992.

The "ultimate purchaser" is defined, generally, as the last person in the United States who receives the article in the form in which it is imported. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)). Based on the information provided, and in light of the fact that the food product samples will not be for sale or resale, it appears the U.S. companies to which the samples will be distributed are the last parties to receive the articles and, therefore, are the ultimate purchasers. Accordingly, 19 CFR 134.32(d) applies, and the food products may be excepted from individual country of origin marking as set forth below.



The soft candies ("Swits") and liquid candies ("Abejitas" and "Bug Juice") are classifiable in subheading 1704.90.20 as, "sugar confectionery (including white chocolate), not containing cocoa: Other: Other." The general column one rate of duty is 7 percent ad valorem.

The powdered drink mixes ("Flavoraid") are classifiable in subheading 1701.91.4000 as, "cane or beet sugar and chemically pure sucrose, in solid form: Other: Containing added flavoring or coloring matter: Containing added flavoring matter whether or not containing added coloring." The general column one rate of duty is 6 percent ad valorem.

The powdered dip mixes ("Dip Sabritas"), if containing over 10 percent sugar, are classifiable in subheading 2103.90.6062 as, "sauces and preparations therefor; mixed condiments and mixed seasonings;...Other: Other, Mixed condiments and mixed seasonings: Provided for in subheading 9904.60.60." Presently, subheading 9904.60.60 provides for a quota quantity limit of 76,203 metric tons. If the powdered dip mixes contain less than 10 percent sugar, they are classifiable in subheading 2103.90.6063 as, "sauces and preparations therefor; mixed condiments and mixed seasonings;...Other: Other, Mixed condiments and mixed seasonings: Other." In both cases, the general column one rate of duty is 7.5 percent ad valorem.

The liquid picante sauce ("Sabritas Salsa Picante") are classifiable in subheading 2103.90.6070 as, "sauces and preparations therefor; mixed condiments and mixed seasonings;...Other: Other, Other: Containing cane and/or beet sugar." The general column one rate of duty is 7.5 percent ad valorem.


It should be noted, however, that products classifiable in any of these subheadings are eligible for duty-free treatment under the Generalized System of Preferences (GSP) provided they meet the requirements of General Note 3(c)(ii), HTSUSA.


The food products may be excepted from individual country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), as long as they are imported in a properly marked container and Customs officials at the port of entry are satisfied that the products will be used only in the manner described above and the ultimate purchasers will receive the merchandise in their original, unopened and properly marked containers.


John Durant, Director
Commercial Rulings Division