CLA-2 RR:CR:GC 960544 PH
Port Director of Customs
477 Michigan Avenue, Suite 200
Detroit, Michigan 48226
RE: Internal Advice; BOOST nutritional energy drink; SUSTACAL;
dietary supplement; beverage; other nonalcoholic beverage;
other food preparation; ENs 21.06; 22.02; 22.06; 33.03;
33.04; HQs 952278; 952637; 956858; 082193; 085776; 086942;
088377; 088622; 089455
Dear Port Director:
This is our decision in response to your request dated April
8, 1997 (MAN-1-11:FO:CST 341 SFS), that we reconsider HQ 956858
dated January 23, 1995, ruling on the classification under the
Harmonized Tariff Schedule of the United States (HTSUS) of
"BOOST", a nutritional energy drink produced by Mead Johnson &
Company. We regret the delay in responding to your request.
FACTS:
The merchandise under consideration is described in HQ
956858 as follows:
[BOOST] is a moderate-calorie, high-protein, ready-to-drink beverage consumed by active people and those desiring
a good source of energy and nutrients. It is a non-alcoholic water-based beverage containing sugar, corn syrup
solids, milk protein concentrate, vegetable oils, vitamins,
minerals, flavorings, emulsifiers and other ingredients.
[BOOST] contains the three essential macronutrients
(protein, fat, and carbohydrate) and all the essential
vitamins and minerals for it to be considered "nutritionally
complete." Each eight ounce can provides at least 20
percent of the U.S. RDAs for protein and all vitamins and
minerals. [BOOST] will be imported from Canada and sold
primarily in four-packs. [BOOST] will be supplied in the
following four flavors: chocolate, mocha (coffee), vanilla,
and strawberry.
We concluded in HQ 956858 that BOOST "... is a beverage, a
liquid for drinking [and that it] is not intended to be a regular
diet or ingested in lieu of meals[;] [rather] [i]t is merely a
beverage to satisfy the empty feeling of an active adult who may
miss a meal because of that person's busy lifestyle." Consistent
with this conclusion, we held that "... BOOST is classified as an
other nonalcoholic beverage under subheading 2202.90.9090,
HTSUS."
You suggest that BOOST should be classified under subheading
2106.90.6097 (now 2106.90.99), HTSUS, as an other food
preparation not elsewhere specified or included, on the basis
that it is "categorically the same food nutritional supplement"
as "SUSTACAL," produced by the maker of BOOST.
In HQ 088622 dated May 24, 1991, SUSTACAL was held to be
properly classified in subheading 2106.90.6097, HTSUS. HQ 088662
describes SUSTACAL as:
[A] nutritionally complete, ready to use liquid food. It is
stated to be formulated to meet the supplemental or total
nutritional needs of patients who, for a variety of reasons,
have difficulty in meeting their nutritional requirements
through a normal diet. The product may be ingested or
administered orally or by a feeding tube. It is lactose
free and contains fiber, numerous nutriments, vitamins and
minerals.
You also cite HQs 952278 dated January 26, 1993, 082193
dated February 2, 1989, 085776 dated June 28, 1991, and 089455
dated January 6, 1992, in support for the proposition that
"similar liquid nutritional food products which may not be taken
in unlimited quantities ... are properly classified under heading
2106."
The subheadings under consideration are as follows:
2202.90.90 Waters, including mineral waters and aerated
waters, containing added sugar or other sweetening
matter or flavored, and other nonalcoholic
beverages, not including fruit or vegetable juices
of heading 2009: ... Other: ... Other.
The 1998 general column one rate of duty for goods classifiable
under this provision is 0.2›/liter.
2106.90.99 Food preparations not elsewhere specified or
included: ... Other: ... Other: ... Other: ...
Other: ... Other.
The 1998 general column one rate of duty for goods classifiable
under this provision is 7.6% ad valorem.
ISSUE:
Whether BOOST Nutritional Energy Drink is classifiable as an
other nonalcoholic beverage in subheading 2202.90.90, HTSUS, or
as other food preparations in subheading 2106.90.99, 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, 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).
EN 21.06 provides, in part, that:
Provided that they are not covered by any other heading of
the Nomenclature, this heading covers ... (16) Preparations,
often referred to as food supplements, based on extracts
from plants, fruit concentrates, honey, fructose, etc. and
containing added vitamins and sometimes minute quantities of
iron compounds. These preparations are often put up in
packagings with indications that they maintain general
health or well-being. Similar preparations, however,
intended for the prevention or treatment of diseases or
ailments are excluded (heading 30.03 or 30.04).
EN 22.02 provides, in part, that:
Other non-alcoholic beverages, not including fruit or
vegetable juices of heading 20.09 ... includes ... (2)
Certain other beverages ready for consumption, such as those
with a basis of milk and cocoa. This heading does not
include: ... (d) Medicaments of heading 30.03 or 30.04.
The ENs for headings 3003 and 3004, cited in the above
quotations from ENs 21.06 and 22.02, provide, in part, as
follows:
Further this heading excludes food supplements containing
vitamins or mineral salts which are put up for the purpose
of maintaining health or well-being but have no indication
as to use for the prevention or treatment of any disease or
ailment. These products which are usually in liquid form
but may also be put up in powder or tablet form, are
generally classified in heading 21.06 or Chapter 22.
Thus, according to these ENs, food supplements such as BOOST
or SUSTACAL are generally classified in either heading 2106 or
Chapter 22, HTSUS (see also, EN 22.06, which provides that the
beverages covered by that heading "... may also contain added
vitamins or iron compounds [and] are sometimes referred to as
food supplements' ... designed to maintain general health or
well-being").
In HQ 082193, we held "NUTREN", "REPLETE", and "PEPTAMEN" to
be classifiable as other food preparations in subheading
2106.90.60, HTSUS. HQ 082193 described the merchandise as
follows:
[The products] are designed to be taken only under medical
supervision and on a temporary basis by medical patients
with impaired nutritional status. These products can be
administered orally or by a feeding tube. ... All three
formulas are described in the literature as complete liquid
nutrition suitable for various clinical indications ... All
three formulas meet or exceed the U.S. Recommended Daily
Allowances for vitamins and minerals. ...
In HQ 085776, we reconsidered and affirmed HQ 082193 insofar
as PEPTAMEN is concerned, again holding PEPTAMEN to be
classifiable as an other food preparation in subheading
2106.90.60, HTSUS. HQ 085776 described the merchandise as:
... [C]omposed of protein, vitamins and trace elements in
2,000 calories, and described as a ready-to-use, isotonic,
complete, peptide-based, elemental diet [the HOLDING added
that the merchandise is "... a complete nutritional liquid
diet for the critically ill patient ..."].
In HQ 089455, we held "ACCUPEP HPF" to be classifiable as an
other food preparation in subheading 2106.90.60, HTSUS. HQ
089455 described the merchandise as:
[O]ffering the benefits of a nutritionally complete
elemental formula with short-chain peptides as the primary
protein source, as well as other nutrients, such as
calories, fats and carbohydrates. It is prepared in powder
form and said to consist of maltodextrin, hydrolyzed
lactalbumin, corn oil, and numerous vitamins and minerals.
It is to be mixed with water and is suitable for either oral
or tube feeding. The suggested usage is said to be for the
nutritional management of patients with short bowel
syndrome, Crohn's disease and pancreatic insufficiency, as
well as patients and others undergoing radiation therapy in
the GI tract.
In HQ 952278 (followed in HQ 952637 dated February 4, 1993),
we held "FLORIDIX" or "FLORAVITAL" brand herbal and vitamin
products, grouped in the categories of iron and herb products,
multivitamins, and herbal rest products, to be classifiable as
other food preparations in subheading 2106.90.60, HTSUS. In the
case of the first category, the classification was based on the
fact that the products primarily consist of herbal extracts and
fruit concentrates, contain added vitamins, and maintain general
health or well-being. In the case of the second category, the
significant quantity of herbal extract, fruit concentrate, and
other non-vitamin ingredients included in the product led to the
finding that the products are not simply vitamins. In the case
of the third category, the holding was based on the fact that the
product primarily contains flavoring agents and other substances,
in addition to various herbs, and appears to be a dietary
supplement.
In HQ 950917 dated May 11, 1992, we held "ALACTAMIL",
described as being "designed for infants who exhibit a lactose
intolerance, and ... intended as a complete nutritional source,
or as a breast milk supplement, from birth to age one[,]" to be
classifiable as an other food preparation in subheading
2106.90.60, HTSUS. The basis of the ruling was that "... since
[ALACTAMIL] is intended as a food product, one to be used to
supplement or supplant an infant's normal diet, it is something
more than a beverage. It is a food. Therefore, heading 2202,
HTSUS, would not apply."
HQ 086942 dated November 14, 1990, concerned "LIPOVITAN",
described as a "healthful vitamin drink [intended] for [the]
prevention of deficiencies of niacin, vitamin B-1, vitamin B-2,
and vitamin B-6." Each label bore the statement "Suggested use:
Drink entire bottleful, one time daily." The product was further
described as a "vitamin supplement or tonic beverage" and as a
"health drink." We held the product to be classifiable as an
other food preparation in subheading 2106.90.60, HTSUS.
In HQ 088377 dated May 4, 1992, we reconsidered and modified
HQ 086942, holding LIPOVITAN to be classifiable as an other
nonalcoholic beverage in subheading 2202.90.90, HTSUS. The bases
for this decision were:
... The product is advertised as a refreshing drink; one
which "makes you feel good all over after athletic
activities or hard work." The fact that it contains a large
quantity of vitamins does not necessarily make it any less a
beverage, since judging from the contents, it is a sweetened
drink; one intended to be refreshing. ... [T]he product is
marketed as a refreshing drink. While it may contain a
large quantity of vitamins, it is also a sweetened drink.
Although the label suggestion, "drink one entire bottle each
day" was interpreted [in HQ 086942] as a dosage limitation,
it can just as well be viewed as an invitation to be sure to
drink at least one bottle a day. ... Conclusions:
[LIPOVITAN], marketed as a refreshing, healthful vitamin
drink, is a beverage. While it may be designed to replenish
the imbiber's vitamin supply, it is also intended to be the
"pause that refreshes", a primary function of a beverage.
All in all the main purpose of this drink is no different
than that of many other chilled, sweetened beverages: to
slake one's thirst after arduous activity.
Customs interpretation of this matter, as demonstrated by
these rulings, is consistent with the competing HTSUS provisions
and the applicable ENs. That is, heading 2106 covers food
preparations not elsewhere specified or included, and EN 21.06
contains an explicit proviso that the merchandise covered
therein, including food supplements, may not be covered by any
other heading of the Nomenclature. Accordingly, merchandise
which the available evidence indicates to be intended to function
primarily as a beverage must be classified as such, in heading
2202, regardless of whether the merchandise may also be intended
"to replenish the imbiber's vitamin supply." We so held in
regard to LIPOVITAN (see HQs 086942 and 088377, above). When
there is no such evidence, and the merchandise appears to be
primarily intended to function as a food supplement and not as a
beverage, we have held the merchandise to be classifiable as an
other food preparation in heading 2106 because it is not
elsewhere specified or included (see HQs 082193, 085776, 089455,
952278, and 950917).
The classification of BOOST as an other nonalcoholic
beverage under subheading 2202.90.90, HTSUS, is consistent with
the other rulings. Just as in the case of LIPOVITAN, BOOST is
advertised as a refreshing drink (the label describes it as
available in "four delicious flavors"); "it is a sweetened drink;
one intended to be refreshing" (quoting from HQ 088377 regarding
LIPOVITAN, above). We affirm the holding in HQ 956858 that BOOST
is a beverage, and is classifiable as an other nonalcoholic
beverage under subheading 2202.90.90, HTSUS.
In the case of SUSTACAL, on the other hand, according to the
available information at the time of issuance of HQ 088662, the
merchandise had been sold only in hospitals and nursing homes in
the United States, and had not even been marketed directly to the
consumer. The merchandise was described as "a nutritionally
complete, ready to use liquid food ... formulated to meet the
supplemental or total nutritional needs of patients who ... have
difficulty in meeting their nutritional requirements through a
normal diet." The label in the file for HQ 088662, rather than
emphasizing the function of the merchandise as "a refreshing
drink" (see above), describes the merchandise as a "nutritionally
complete liquid food", and does not even refer to the taste or
"refreshing" nature of the merchandise.
(Further, although this is not the principal basis for our
conclusion, we note that the BOOST and SUSTACAL are not
"categorically the same food nutritional supplement[s][.]" A
side-by-side comparison of the nutrient values of each product
and the labels for each product demonstrate substantial
differences in the nutrient values, with large differences in fat
and protein contents.)
HOLDING:
BOOST Nutritional Energy Drink is classifiable as an other
nonalcoholic beverage in subheading 2202.90.90, HTSUS.
EFFECTS ON OTHER RULINGS:
HQ 956858 dated January 23, 1995, is affirmed.
No later than 60 days from the date of this letter the
Office of Regulations and Rulings will take steps to make the
decision available to Customs personnel via the Customs Rulings
Module in ACS and to the public via the Diskette Subscription
Service, the Freedom of Information Act, and other public access
channels.
Sincerely,
John Durant
Director, General
Classification Division