CLA-2 RR:TC:FC 959816K

John M. Peterson, Esq.
Neville, Peterson & Williams
Counsellors At Law
80 Broad Street
34th Floor
New York, New York 10004

RE: Request For a Ruling For a Peanut-Butter Spread; Reconsideration of New York Ruling Letter (NYRL) 810462, Dated May 19, 1995; Your File No. 335-01

Dear Sir:

Your request of September 3, 1996, on behalf of CPC International, Inc., for a tariff classification ruling was referred to our office by the Director, National Commodity Specialist Division, for a direct response. Our decision follows. FACTS:

The product is described as a peanut-flavored food preparation which will be manufactured in Canada. In its condition as imported, the product will have a smooth, creamy consistency, and, while it can be eaten directly from the jar, it will be primarily used as a spread for bread, crackers, biscuits and also potentially capable of use as a baking or cooking ingredient. The ingredients consist of (ground) peanuts, corn syrup, sugar, proteins, salt, and vegetable oil. The product will be marketed as a reduced-fat peanut spread, and will contain approximately 25 percent less fat than peanut butter. A sample was submitted in a clear plastic unlabeled jar. However, the product will be labeled as "Peanut Butter Spread". A further submission was submitted dated November 27, 1996. A meeting was requested and one was held on January 24, 1997. In our opinion, the product as described is similar to a product described as a peanut spread (or paste) in which Customs ruled in New York Ruling Letter (NYRL) 810462, dated May 19, 1995, that the product was classified as peanut butter and paste, in subheading 2008.11.0500, Harmonized Tariff Schedule of the United States (HTSUS), subject to a tariff rate quota, and, if a shipment exceeded the quota, it is subject to an over the quota rate of duty in subheading 2008.11.1500, HTSUS. The product in NYRL 810462, like the instant product, contains less than 90 percent by weight of ground peanuts. Therefore, you opine that the products may not meet the standard of identity of the Food and Drug Administration (FDA) for peanut butter and are not classified in the tariff schedule as peanut butter. In the further submission dated November 27, 1996, you opine that "notwithstanding the substantial differences between the instant product and the product covered in that ruling, the position taken in that ruling is erroneous as a matter of law." You further believe that the instant product is not classified in heading 2008 and that it is classified as other food preparations not elsewhere specified or included, in subheading 2106.90.99, HTSUS, and not subject to a tariff rate quota.

ISSUE:

The issue is whether the product is classified in heading 2008, HTSUS, and subject to a tariff rate quota. LAW AND ANALYSIS:

The classification of imported merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section and chapter notes and, unless otherwise required, according to the remaining GRI, taken in their appropriate order. Accordingly, we first have to determine whether the products are classified by virtue of GRI 1. Heading 1202, HTSUS, provides for peanuts (ground nuts), not roasted or otherwise cooked, whether or not shelled or broken. Since the instant product consists of peanuts that have been ground, roasted and prepared or preserved, classification is precluded from this heading.

However, heading 2008, HTSUS (1996), provides for the following:

Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.

Subheading 2008.11, HTSUS, at the six digit level, specifically provides for prepared or preserved peanuts (ground-nuts), whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included. Subheading 2008.11, has further breakouts at the eight digit levels, subheadings 2008.11.02 through subheadings 2008.11.60, containing tariff rate quotas for peanut butter and paste, blanched peanuts, other prepared or preserved peanut products as follows:

Rates of Duty (1996) General Special 2 2008.11 Peanuts (ground-nuts): Peanut butter and paste: 2008.11.02 Described in general note 15 of the tariff schedule and entered pursuant to its provisions..... 1.3›/kg Free (E,IL,J,MX) 15›/kg 1.3›/kg (CA) (s) 1/

2008.11.05 Described in additional U.S. note 5 to this chapter and entered pursuant to its provisions..... 1.3›/kg Free (E,IL,J) 15›/kg 1.3›/kg (CA)(s) 1/ 2008.11.15 Other 2/............................. 147.3% 4.6›/kg (MX) 155% Blanched peanuts: 2008.11.22 Described in general note 15 of the tariff schedule and entered pursuant to its provisions..... 6.6›/kg Free (E,IL,J,MX) 15›/kg 1.3›/kg (CA) 2008.11.25 Described in additional U.S. note 2 to chapter 12 and entered pursuant to its provisions................. 6.6›/kg Free (E,IL,J) 15›/kg 1.3›/kg (CA) 2008.11.35 Other 3/........................... 147.3% See 9906.20.03- 155% 9906.20.05 (MX) Other: 2008.11.42 Described in general note 15 of the tariff schedule and entered pursuant to its provisions..... 6.6›/kg Free (E,IL,J,MX) 15›/kg 1.3›/kg (CA) 2008.11.45 Described in additional U.S. note 2 to chapter 12 and entered pursuant to its provisions................. 6.6›/kg Free (E,IL,J) 15›/kg 1.3›/kg (CA) 2008.11.60 Other 3/........................ 147.3% See 9906.20.03- 155% 9906.20.05 (MX)

1/ Rate suspended. See General Note 3(c)(iv). 2/ See subheadings 9904.20.01-9904.20.10. 3/ See subheadings 9904.12.01-9904.12.19. Heading 2008 provides for prepared or preserved nuts, not elsewhere specified or included and further provides for the addition of sugar or other sweetening matter. Subheading 2008.11 specifically provides for peanuts (ground nuts) that have been prepared or preserved. We need to go no further. The product consists of prepared or preserved ground peanuts not elsewhere specified or included and is classified in subheading 2008.11, HTSUS.

The FDA standard of identity for peanut butter, section 164.150 of Title 21, Code of Federal Regulations (CFR), defines peanut butter as the food prepared by grinding roasted peanuts to which may be added safe and suitable seasoning and stabilizing ingredients that do not in the aggregate exceed 10 percent of the weight of the finished food. Counsel, as stated, opines that since the peanut butter spread contains more than 10 percent of ingredients other than ground peanuts, the product cannot be classified as peanut butter and paste in subheading 2008.11, HTSUS. One of the purposes of the standards of identities is to promote honesty and fair dealing in the interest of consumers by truthful and informative labeling of food products. A standard of identity is helpful in defining a product but it is not controlling in determining the classification of merchandise under the Harmonize Tariff Schedule of the United States. As stated, under GRI 1, we must first determine if the product is covered by a heading and chapter notes and we have concluded that the peanut butter spread is classified in heading 2008 by virtue of GRI 1.

The standards of identities of the FDA also has a definition for "peanut spread" found in 21 CFR 102.23, in part, as follows:

The common or usual name of a spreadable peanut product that does not conform to 21 CFR 164. 150, and more than 10 percent of which consists of nonpeanut ingredients, shall consist of the term "peanut spread" and a statement of the percentage by weight of the peanuts in the product...shall be based on the amount of peanuts used to make the finished food product...

The peanuts in a peanut spread (21 CFR 102.23) and the peanuts in peanut butter (21 CFR 164.150), both consist of roasted ground peanuts and both are spreadable by the consumer on bread, crackers, and biscuits. We do not see a difference in calling a product peanut butter, peanut butter and paste, or a peanut butter spread for purposes of subheadings 2008.11.02 and 2008.11.05, HTSUS. The question is whether the product is classifiable under the tariff schedule as peanut butter and paste. Counsel does not claim that the instant product is covered by the standard of identity for peanut spread. This standard does not permit the product to be labeled as "Peanut Butter" or as a "Peanut Butter Spread". The standard permits the product to be labeled as a "Peanut Spread", not as a Peanut Butter Spread. Counsel does claim that the instant product does not meet the standard of identity for peanut butter in 21 CFR 164.150. Yet, counsel states that his client has an agreement with FDA authorizing the labeling of the instant product as a "Peanut Butter Spread". This is further evidence that the instant product is a modified form of peanut butter. It is a contradiction to label a product as peanut butter, albeit, with the added word of spread, and contend that the product is not peanut butter.

For that matter, we are not satisfied that the instant product does not conform to the standard of identity for peanut butter, 21 CFR 164.150 as a reduced-fat modified form of peanut butter under the FDA interpretation of 21 CFR 130.10. The statement that the FDA has given approval to label the instant product as a peanut butter spread confirms that the FDA considers the product to be a modified form of peanut butter under 21 CFR 164.150 and 21 CFR 130.10.

Assuming (and we do not agree ) that the instant product is not classified as peanut butter and paste in subheadings 2008.11.02 and 2008.11.05, HTSUS, the instant product consists of prepared (roasted) ground peanuts and would be classified as other prepared or preserved peanuts (ground-nuts), in subheadings 2008.11.42, 2008.11.45 or 2008.11.60, HTSUS, which also have tariff rate quotas. In Headquarters Ruling Letter (HRL) 083352 dated October 17, 1989, a product composed of 90 percent roasted peanuts used as a food topping for baked goods, ice cream, or fillings in cakes or candy, was classified in subheading 2008.11.00, HTSUS (1989), then in effect for prepared or preserved peanuts (ground-nuts). However, it was classified with the statistical break out for other prepared or preserved peanuts (ground-nuts), subheading 2008.11.0060.

In HRL 557994 dated October 25, 1994, it was held that imported "peanut slurry" from Canada classified in subheading 2008.11.90, HTSUS (1994) to be used to make finished peanut butter classified in subheading 2008.11.10, HTSUS, did not meet tariff shift requirements for NAFTA marking purposes. This ruling is another example in which prepared ground peanuts not classified as peanut butter was still referred to as being classified under the other provision for prepared ground peanuts in subheading 2008.11, HTSUS. See also HRLs 089650, dated July 31, 1991, involving cooked peanuts with a thin coating of wheat flour, and 089858 dated October 1, 1991, involving a mixture of pretzel sticks and roasted split-blanched peanuts, that held that the products were classified as other prepared peanuts in heading 2008.

We have considered all of the NYRLs and HRLs cited in your submission and are satisfied that the instant merchandise is classified as peanut butter and paste in subheading 2008.11.10, HTSUS. As an eo nomine provision, it includes all forms of the merchandise. We need not consider the claim for classification under the basket provision for other food preparations not elsewhere specified or included, in subheading 2106.90.99, HTSUS, and not subject to a tariff rate quota. HOLDING:

A product described as a "Reduced Fat Peanut Butter Spread" and labeled as a "Peanut Butter Spread", which consists of roasted ground peanuts and other sweetening matter and stabilizers, used by the consumer to be spread on bread, crackers, and biscuits in the same manner as peanut butter, is classified as peanut butter and paste in subheading 2008.11.0500, HTSUS, if imported in quantities that fall within the limits described in additional U.S. note 5 to chapter 20, and dutiable at the 1996 general rate of duty of 1.3 cents per kilogram. If the quantitative limits of additional U.S. note 5 to chapter 20 have been reached, the product will be classified in subheading 2008.11.1500, HTSUS, and dutiable at the 1996 general rate of 147 percent ad valorem. In addition, products classified in subheading 2008.11.1500, HTSUS, will be subject to additional duties based on their value, as described in subheadings 9904.20.01 - 9904.20.10, HTSUS (1996). NYRL 810462 dated May 19, 1995, is affirmed.

Sincerely,

John Durant, Director
Tariff Classification
Appeals Division