CLA-2 CO:R:C:F 951070 JGH
Mr. Richard Cowcill
CSC Promotions Ltd.
12 Elsie Dr.
Quispamsis, N.B.
Canada E2E 4R7
RE: Classification of Mini Sips
Dear Mr. Cowcill:
Your inquiry of January 23, 1992, concerns the tariff status
under the Harmonized Tariff Schedule of the United States
(HTSUS), of Mini Sips, a product of Canada.
FACTS:
Mini Sips are described as flavored drinks made of water,
sugar and flavoring. They are packaged in 200 ml clear, light-
weight, plastic pouches, measuring about 5-1/2 inches in length
and 3-3/4 inches in width, with 6 pouches placed in an outer
plastic bag, labeled, "6 Mini Sips Beverage," in French and
English.
The Mini Sips are pre-frozen and distributed to wholesale
and retail outlets in a fozen condition. The consumer is
supposed to allow the product to melt and then pierce the pouch
with an enclosed straw.
ISSUE:
Whether Mini Sips are classifiable as beverages in
subheading 2202.10.00, HTSUS, or as a food preparation not
elsewhere specified or included, in subheading 2106.90.60, HTSUS.
LAW AND ANALYSIS:
As a general rule, merchandise is classified in its
condition as imported. Since they are frozen when imported,
Mini Sips are not necessarily considered beverages. Although
they are marketed as beverages and are packaged with a straw,
they are sold frozen at retail in sealed plastic bags which
resemble, if anything, small sandwich bags.
The Explanatory Notes to the HTSUS provide an interpretation
of the tariff provisions on the international level. Heading
2105 not only covers ice cream but also "other edible ice (e.g.,
sherbert and iced lollipops)..."
One form of the edible ice is a product which has the same
type of ingredients as Mini Sips. In fact, the court has
considered the classification of a similar product in W.R.
Filbin & Co., v. United States, 744 F. Supp. 289. There, the
products were sold in a frozen condition and contained a straw.
Even so, the court noted that it could not ignore the physical
evidence: that the product was designed to be consumed in its
frozen condition as well as in a liquid form. In fact, it is
noted from examining the frozen samples, that because of the
packaging, Mini Sips are easier to consume frozen than in the
liquid state.
While Customs does consider how the product is marketed
when determining classification, in view of its packaging, as
well as it condition as imported, and when purchased by the
consumer, Mini Sips are considered an edible ice.
HOLDING:
Mini Sips are classifiable under the provision for other
edible ice in subheading 2105.00.90, HTSUS. The rate of duty for
a product of Canada which meets all of the requirements is 12
percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division