CLA-2 RR:CR:GC 959587 RC

Port Director of Customs
c/o Chief, Residual Liquidation and Protest Branch
9901 Pacific Highway
Blaine, Washington 98230

RE: Protest 3004-96-100468, Peppermint and Peach Flavors

Dear Port Director:

This is our decision on protest 3004-96-100468, timely filed June 27, 1996, against your decision in the classification of peppermint and peach flavors under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of Peppermint Flavour, #942104100, and Peach Flavour, #X90391075. The flavors serve as raw material ingredients, used to produce finished drink beverages and finished foods.

You classified the peppermint flavor in heading 2106, HTSUS, the provision for other food preparations not elsewhere specified or included, syrups derived from cane or beet sugar, containing added coloring but not added flavoring matter; and the peach flavor in heading 2208, HTSUS, the provision for other undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages; compound alcoholic preparations of a kind used for the manufacture of beverages. Pursuant to a CF 28 request for additional information, you classified both flavors in subheading 2106.90.9999, HTSUS.

The protestant claims that both the peppermint and the peach flavors should be classified in subheading 3302, HTSUS, the provision for mixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry.

In a supplemental submission, the protestant provided, inter alia, the following breakdown of ingredients for each flavor:

The peppermint flavor consists of water, modified food starch, peppermint essential oil, citric acid, and sodium benzoate. The peach flavor consists of propylene glycol, ethyl alcohol, fruit essences, ethyl acetate and other organic esters, acetic acid and other organic acids, acetyl aldehyde and other organic aldehydes, essential oils, and miscellaneous organic flavor compounds.

The peppermint flavor is described as a water based emulsion of essential oils, utilizing the modified food starch as the emulsion stabilizer. The organic flavor compounds in the peach flavor are derived from natural sources.

The HTSUS provisions discussed herein are those which were in effect at the time the merchandise covered by the referenced protest was entered (1995).

ISSUE:

Whether the peppermint and peach flavors are properly classified in headings 2106 and 2208, HTSUS, respectively, or both in heading 2106 or 3302, HTSUS.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 GRI's may then be applied.

The peppermint flavor is described as a water-based emulsion of essential oils, utilizing modified food starch as the emulsion stabilizer. The organic flavor compounds in the peach flavor are derived from natural sources. The products are raw materials typically used in the beverage and food industries. Both flavors are based on odoriferous substances. The peppermint flavor is based on peppermint essential oil, and the peach flavor has its basis in the fruit essences -- essential oils, esters, acids and aldehydes.

In each case, the essential oils and the synthetic aromatics, which are products of chapters 33 and 29, form the basis of the flavor, therefore placing the merchandise in heading 3302, HTSUS, the provision for mixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of the listed substances, of a kind used as raw materials in industry. HOLDING:

The Peppermint Flavour, #942104100, is properly classified in subheading 3302.10.10, HTSUS, the provision for "[m]ixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry: Of a kind used in the food or drink industries: Not containing alcohol," dutiable at 4.8 percent ad valorem (1995). The Peach Flavour, #X90391075, is properly classified in subheading 3302.10.30, HTSUS, the provision for "[m]ixtures of odoriferous substances and mixtures (including alcoholic solutions) with a basis of one or more of these substances, of a kind used as raw materials in industry: Of a kind used in the food or drink industries: Containing over 20 percent of alcohol by weight," dutiable at 5 percent ad valorem (1995).

You are instructed to allow the protest in full. A copy of this decision should be attached to the Customs Form 19 to be returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, 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
Commercial Rulings Division