CLA-2 RR:CR:GC 958150 RTR

Mr. Tom Czubak
Warner Lambert International Operations
P.O. Box 577
Morris Plains, New Jersey 07950

RE: Hall's Vitamin C Drops; subheading 1704.90.35, HTSUS; NY 832151 revoked

Dear Mr. Czubak:

This is in reference to NY 832151, which was issued to you on September 21, 1988, pursuant to your request for a binding ruling as to the tariff classification of "Hall's Vitamin C Drops" (hereinafter referred to as "HVCDs") under Harmonized Tariff Schedule of the United States (HTSUS). In NY 832151, Customs determined that HVCDs were classifiable in subheading 3004.50.5010, HTSUS, which provides for medicaments (excluding goods of heading 3002, 3005, or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale:... Other medicaments containing vitamins or other products of heading 2936: Containing vitamins synthesized wholly or in part from aromatic or modified industrial organic compounds: Other: For veterinary use Other: Single vitamins: Combined with minerals or other nutrients, HTSUS.

Pursuant to section 625(c)(1)), Tariff Act of 1930 (19 U.S.C. 1625(c)(1), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub L. . 103 - 182, 107 Stat. 2057, 2186 (1993), a notice of proposed revocation of NY 832151 was published on February 18, 1998, in the Customs Bulletin, Volume 32, Number 7. One comment was received in response to this notice.

FACTS:

The merchandise consists essentially of sucrose and glucose sugar flavorings, and colorings, but also supplies 60 mg of Vitamin C per drop. The manufacturer advertises this quantity as being 100% of the U.S. Recommended Daily Allowance. The merchandise is sold in a variety of flavors.

The provisions under consideration are as follows:

1704 Sugar confectionary (including white chocolate), not containing cocoa:

1704.10 Chewing gum, whether or not sugar-coated

1704.90 Other: Confections or sweetmeats ready for consumption:

Other: 1704.90.25 Cough drops

1704.90.35 Other.

* * * *

2936 Provitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or not in any solvent:

Vitamins and their derivatives, unmixed:

2936.27.00 Vitamin C (Ascorbic acid) and its derivatives

* * * *

3004 Medicaments (excluding goods of heading 3002, 3005, or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale:...

3004.50 Other medicaments containing vitamins or other products of heading 2936: Containing vitamins synthesized wholly or in part from aromatic or modified industrial organic compounds:

3004.5050 Other Other: Single vitamins: 3004.5050.10 Combined with minerals or other nutrients

ISSUE:

Whether sugar-based HVCDs are classifiable as "confections or sweetmeats ready for consumption" of chapter 17, HTSUS, as "vitamins" of chapter 29, HTSUS, or as "medicaments" of chapter 30, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

In NY 832151, Customs classified HVCDs in subheading 3004.50.5010, HTSUS, based upon the belief that Vitamin C imparted therapeutic or prophylactic character to the merchandise. Additional research indicates that Vitamin C has not been shown in the U.S. to have substances which imbue it with therapeutic or prophylactic properties or uses. Therefore, HVCDs are not classifiable as medicaments of chapter 30, HTSUS, and NY 832151 must be revoked.

At its Eleventh Session on September 16, 1993, the Harmonized System Committee (HSC) greatly limited the list of ingredients which are considered to possess "therapeutic or prophylactic" value. This change was adopted in the form of two amendments to the ENs (Doc. 38.100)). For example, despite the existence of significant scientific evidence indicating that menthol possesses antitussive properties, according to the ENs to chapter 3004, it is now considered a mere "flavoring agent", and is not included among the goods classifiable in chapter 30, HTSUS. Rather, the Vitamin C contained in HVCDs is akin to other common lozenge additives which seem to possess curative properties, but do not satisfy the new, higher standard for "therapeutic or prophylactic" goods.

Additionally, EN 30.04, states, in pertinent part, that:

This heading includes pastilles, tablets, drops, etc., of a kind suitable only for medicinal purposes, such as those based on sulphur, charcoal, sodium tetraborate, sodium benzoate, potassium chlorate or magnesia. However, preparations put up as throat pastilles or cough drops, consisting essentially of sugars (whether or not with other foodstuffs such as gelatin, starch or flour) and flavouring agents (including substances having medicinal properties, such as benzyl alcohol, menthol, eucalyptol, and tolu balsam) (italics added) fall in heading 17.04.

Pastilles, tablets, or drops, suitable only for medicinal purposes, are normally dispensed with a doctor's prescription, or are only purchased with the intention of curing an ailment. HVCDs are sold in a variety of stores together with other sugar-confectionary products "over the counter" without a prescription. Therefore, Customs remains of the opinion that the merchandise is classifiable in heading 1704, HTSUS.

The commentor objected to this position and presented different evidence in support of the therapeutic or prophylactic character of Vitamin C. Citing a chemical dictionary and the Merck Manual, the commentor suggests that Vitamin C "cures scurvy and increases resistance to infection." However, the exterior label on HVCDs states: "Hall's Vitamin C Drops are a delicious way to give your family 100% of the Daily Value of Vitamin C... They taste great and soothe your throat... Assorted Citrus Hall's Vitamin C Drops are available in the following flavors: Lemon, Sweet Grapefruit, and Orange." From this it is clear that, although the merchandise may possess medicinal properties, it is being marketed as much for its flavor as for its medicinal value. Thus, it cannot be said that this merchandise is suitable only for medicinal purposes.

Alternatively, the commentor contends that if the merchandise is not classifiable as a medicament of chapter 30, HTSUS, it is classifiable as a vitamin of chapter 29, HTSUS. We disagree.

Subheading 2936.27.00, HTSUS, provides for Provitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or not in any solvent: Vitamins and their derivatives, unmixed: Vitamin C (Ascorbic acid) and its derivatives.

In addition to Vitamin C, HVCDs contain sugar, glucose syrup, flavorings and colorings. According to the ENs to chapter 29, HTSUS, at page 342, "[s]eparate chemically defined compounds containing other substances deliberately added during or after their manufacture are excluded from this chapter. Accordingly, a product consisting of saccharin mixed with lactose, for example, to render the product suitable for use as a sweetening agent is excluded." The lactose-saccharin product envisioned in the EN, excludable from chapter 29 due to the presence of a sweetener, is analogous to HVCDs. They are excluded from classification in chapter 29, because they contain other substances (sugars, flavorings and colorings) deliberately added during their manufacture.

Subheading 1704.90.25, HTSUS, covers sugar confectionary (including white chocolate), not containing cocoa: Chewing gum, whether or not sugar-coated; Other: Confections or sweetmeats ready for consumption: Candied nuts; Other: Cough drops; Other. Subheading 1704.90.35, HTSUS, is a subsequent basket provision for merchandise not classifiable under subheading 1704.90.25, HTSUS.

Chapter 17 Note 11, HTSUS, provides as follows: for purposes of subheading 1704.90.25, HTSUS, "cough drops " must contain a minimum of 5 mg per dose of menthol, of eucalyptol, or of a combination of menthol and eucalyptol. Since they contain no menthol or eucalyptol, HVCDs are not "cough drops" for HTSUS purposes.

The decision in NY 832151 was based on Customs belief that HVCDs had therapeutic or prophylactic properties. Since this is not the case, the merchandise cannot be classified in chapter 30, HTSUS. Likewise, the presence of sugars, flavorings and colorings renders them ineligible for classification in chapter 29, HTSUS. Therefore, HVCDs are classifiable as sugar confections of chapter 17, HTSUS. The lack of menthol, eucalyptol, or a combination thereof in the merchandise prevents its classification in subheading 1704.90.25, HTSUS. Sugar-based drops containing Vitamin C, but no menthol or eucalyptol, are therefore classifiable in the basket provision, subheading 1704.90.35, HTSUS, which provides for sugar confectionary (including white chocolate), not containing cocoa: Chewing gum, whether or not sugar-coated; Other: Confections or sweetmeats ready for consumption: Candied nuts; Other: Cough drops; Other.

HOLDING:

Pursuant to GRI 1, HVCDs are classifiable in subheading 1704.90.35, HTSUS, covering sugar confectionary (including white chocolate), not containing cocoa: Chewing gum, whether or not sugar-coated; Other: Confections or sweetmeats ready for consumption: Candied nuts; Other: Cough drops; Other; Other. The rate of duty of duty is 6.1% ad valorem (1998). Accordingly, NY 832151 is revoked.

EFFECT ON OTHER RULINGS:

NY 832151, dated August 12, 1992, is revoked. In accordance with 19 U.S.C. 1625(C)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

Sincerely,

John Durant, Director
Commercial Rulings Division