CLA-2 CO:R:C:G 081382 JGH
District Director of Customs
2039 Federal Office Building
909 First Avenue
Seattle, Washington 98174
RE: Tariff Classification of fruit spreads; Internal Advice
No. 32/87
Dear Sir:
This decision concerns the tariff classification of
certain fruit spreads.
FACTS:
The spreads, products of Denmark, are said to be produced
in the following manner:
(1) Half of the sugar, in the form of refined sugar, is
melted in kettles.
(2) Fruit and the other half of the sugar (glucose syrup)
are added and the mixture heated and stirred
continuously.
(3) Pectin in solution is added.
(4) Citric acid in solution is added to adjust acidity.
(5) Potassium sorbate is added as a preservative.
Water is added in the amount of 4 to 6 percent in order
to dissolve the pectin, citric acid and potassium sorbate.
The proportion of the ingredients in the mixture are said
to be 40 percent fruit to 28 percent sugar and 25 percent
glucose syrup. This fruit mixture is cooked until thickened.
- 2 -
ISSUE:
The issue is whether the fruit spreads are classifiable
as jams in items 153.03 to 153.32, TSUS, or prepared or
preserved fruits in items 146.24 to 150.05, TSUS. It is also
asked whether a lower sugar content or the addition of water
would affect classification.
LAW AND ANALYSIS:
The Summaries of Trade and Tariff Information, Schedule
1, Vol. 8 (1969), p. 267, states that the Food and Drug
Administration (FDA) has established standards of identity for
preserves and jams. For jams and preserves it provides a
weight of 45 percent fruit and 55 per cent sugar. The
summaries also state that if the fruit is processed and packed
in a manner which substantially retains the shape of the
fruit, then it is dutiable as a preserve under the provision
for prepared or preserved fruits. Conversely, it is noted
that a jam is defined as a product made by boiling fruit and
sugar to a thick consistency without preserving the shape of
the fruit. The summary adds that an imported product properly
labeled as a jam by FDA standards may be dutiable as a
preserved fruit; similarly some imported products labeled as a
"preserve," may be dutiable as a jam. The court in Julius
Goldfarb v. United States, C.D. 2560 (1965) stated that the
tariff summaries and the FDA standards were both accepted as
evidence that is to be weighed with other evidence. In the
FDA regulations, 21 CFR 150.160, fruit preserves and jams are
described as viscous or semi-solid foods, mixtures composed of
specified fruit ingredients and one or any combination of
optional specified ingredients. The fruit ingredients have to
be at least 45 percent. The regulations also permit the
addition of nutritive carbohydrate sweeteners, pectin
preservatives and certain other additives. The addition of
water is also permitted.
Although it is often stated that Customs is not bound by
the rulings or regulations of other agencies, it is noted here
that both the Customs court and the tariff summaries quote
with approval the FDA definition of jams and preserves. The
tariff summaries differ from the FDA standards in one
significant aspect: the former require that identifiable
pieces of fruit be present to distinguish the preserve from
the jam.
- 3 -
While Customs has adhered to traditional definition of
jams and preserves in listing sugar as the only sweetener, the
FDA standards, in listing what is referred to as safe and
suitable optional ingredients, include nutritive carbohydrate
sweeteners. In view, therefore, of current processing methods
the addition of glucose syrup to the product would not remove
it from the category of jam or preserves; nor is it believed
that the addition of water to the extent indicated would
affect the classification, noting the FDA's standard that jams
or preserves are mixtures with or without water.
To establish that the products are classifiable as jams
in items 153.03 - 153.32, TSUS, it would have to be
demonstrated that a product was made by boiling the
ingredients to a thick consistency, without preserving the
shape of the fruit.
In any examination of samples of this type of product
there is an element of subjectivity, and in this case both the
import specialist at the port and the national import
specialist agreed that the products had recognizable pieces of
fruit and, in some cases, whole berries were found.
Therefore, the products would be classified as prepared fruits
as follows:
Fruit-Berry Item No. Duty
Apricot 146.24 35% ad valorem
Black Currant 146.82 7% ad valorem
Raspberry 146.84 7% ad valorem
Strawberry 146.85 14% ad valorem
Blackberry 146.86 14% ad valorem
Black Cherry 146.99 7 cents per lb.+10%
ad valorem
Orange 147.31 1 cent per lb.
Peach 148.78 20% ad valorem
Pineapple 148.98 .25 cent per lb.
Mixed Fruit 150.02 7% ad valorem
Pinecot 150.05 17.5% ad valorem
Under the Harmonized Tariff Schedule of the United States
you suggest that the products are classifiable as jams, being
cooked preparations, whether or not containing sugar or other
sweeteners in heading 2007.99 - 2007.99.45.00. However, the
Explanatory Notes for heading 2007 state that jams are made by
boiling whole fruit or fruit pulp with sugar in approximately
equal proportions. In this case the fruit spreads contain 40
percent fruit and 53 percent sweeteners. This is not believed
to be "approximately equal proportions."
- 4 -
HOLDING:
Therefore the products are classifiable as follows under
the provision for fruit, otherwise prepared or preserved,
whether or not containing sugar or other sweetening matter:
Product Heading Duty
Apricot 2008.50.4000 35% ad valorem
Black Currant 2008.99.2000 7% ad valorem
Raspberry 2008.99.2000 7% ad valorem
Blackberry 2008.99.2000 7% ad valorem
Black Cherry 2008.60.0000 15.4 cents/kg+10% ad
valorem
Strawberry 2008.80.0000 14% ad valorem
Orange 2008.30.4000 2.2 cents/kg
Peach 2008.70.0000 20% ad valorem
Mixed Fruit 2008.92.1000 7% ad valorem
Pinecot 2008.92.9090 17.5% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division
CO:R:C:G:JGHURLEY:lw 5/3/88 6/22/88 10/6/88 final 10/24/88