HQ H295066
CLA-2 OT:RR:CTF:FTM H295066 TSM
Mr. Joseph Walter
Livingston International
670 Young Street
Tonawanda, NY 14150
RE: Modification of New York Ruling Letter (“NY”) N293615; The tariff classification of the “Thermo Action” dietary supplement.
Dear Mr. Walter:
This is in reference to New York Ruling Letter (“NY”) N293615, dated February 9, 2018, issued to you on behalf of Immunotec, Inc., concerning the tariff classification of the “Thermo Action” dietary supplement under the Harmonized Tariff Schedule of the United States (“HTSUS”). In that ruling, U.S. Customs and Border Protection (“CBP”) classified the “Thermo Action” product under heading 2101, HTSUS, which provides for “Extracts, essences and concentrates, of coffee, tea or mate and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof.” Upon additional review, we have found this classification to be incorrect. For the reasons set forth below we hereby modify NY N293615 with regard to the tariff classification of the “Thermo Action” product.
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), a notice was published in the Customs Bulletin, Volume 53, No. 13, on May 1, 2019, proposing to modify NY N293615 and revoke any treatment accorded to substantially identical transactions. No comments were received in response to the notice.
FACTS:
NY N293615 states that the “Thermo Action” product contains approximately 59 percent green tea extract and 18 percent guarana. The remaining ingredients are magnesium stearate, microcrystalline cellulose, vegetable capsule (hydroxyropyl methyl cellulose), and a trace amount of chromium. The product is said to function as a dietary supplement that provides weight management. The product is imported for retail sale in bottles containing 120 capsules.
ISSUE:
What is the tariff classification of the “Thermo Action” product at issue?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
2101 Extracts, essences and concentrates, of coffee, tea or mate and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof
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2106 Food preparations not elsewhere specified or included
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When interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
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Explanatory Note to heading 21.01 provides as follows:
The heading covers:
Coffee extracts, essences and concentrates. These may be made from real coffee (whether or not caffeine has been removed) or from a mixture of real coffee and coffee substitutes in any proportion. They may be in liquid or powder form, usually highly concentrated. This group includes products known as instant coffee. This is coffee which has been brewed and dehydrated or brewed and then frozen and dried by vacuum.
Tea or maté extracts, essences and concentrates. These products correspond, mutatis mutandis, to those referred to in paragraph (1).
Preparations with a basis of the coffee, tea or maté extracts, essences or concentrates of paragraphs (1) and (2) above. These are preparations based on extracts, essences or concentrates of coffee, tea or maté (and not on coffee, tea or maté themselves), and include extracts, etc., with added starches or other carbohydrates.
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These products may be presented in lump, granular or powder form, or as liquid or solid extracts. They may also be mixed either with one another or with other ingredients (e.g., salt or alkaline carbonates), and may be put up in various types of containers.
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Explanatory Note to heading 21.06 provides, in relevant part, as follows:
Provided that they are not covered by any other heading of the Nomenclature, this heading covers:
Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.)(see the General Explanatory Note to Chapter 38).
The heading includes, inter alia:
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).
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Upon additional review, we find that the “Thermo Action” dietary supplement is covered by heading 2106, HTSUS. According to the ENs cited above, this heading provides for preparations, often referred to as food supplements, based on extracts from, among others, plants, and containing mixtures of chemicals (organic acids, calcium salts, etc.) and foodstuffs, for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.)
The “Thermo Action” is a dietary supplement based on tea extract, which is a plant extract, and also contains guarana, a plant ingredient, along with several ingredients intended to improve the supplement’s characteristics, such as: (1) magnesium stearate, which functions to prevent capsule contents from sticking; (2) microcrystalline cellulose, which functions as a texturizer, an anti-caking agent, an emulsifier and a bulking agent; and (3) hydroxypropyl cellulose, which is used as a binder, a thickening agent, and a viscosity increasing agent. In addition, the “Thermo Action” supplement is imported in capsule form. See HQ 956890, dated December 12, 1994 (classifying food supplements in tablet and capsule forms in heading 2106, HTSUS).
Although in NY N293615, dated February 9, 2018, the “Thermo Action” product was classified in heading 2101, HTSUS, we find this classification to be incorrect. According to the ENs to heading 21.01, this heading provides for preparations based on extracts of coffee, tea or maté, with added starches or other carbohydrates, and presented in lump, granular or powder form. While the “Thermo Action” product is based on tea extract, it also contains other ingredients that are not “added starches or other carbohydrates.” Finally, the “Therma Action” product is not imported in lump, granular or powder form.
Based on the foregoing, we find that the “Thermo Action” product is classified in heading 2106, HTSUS, and specifically in subheading 2106.90.98, HTSUS, which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other.”
HOLDING:
By application of GRIs 1 and 6, we find that the “Thermo Action” product is classified under heading 2106, HTSUS, and specifically in subheading 2106.90.98, HTSUS, which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other.” The 2018 column one, general rate of duty is 6.4% ad valorem.
EFFECT ON OTHER RULINGS:
NY N293615, dated February 9, 2018, is hereby MODIFIED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division