CLA-2 RR:CR:GC 964881 JGB
Ms. Jean Aiello
International Trade Logistics, Inc.
2525 Brunswick Ave., Suite 200
Linden, NJ 07036
RE: Juvital Fruit Juices; Reconsideration of NY G86210
Dear Ms. Aiello:
This is in response to your letter of February 15, 2001, requesting reconsideration of New York Ruling Letter (NY) G86210, issued to you on January 23, 2001, on behalf of Iberia Foods Corp concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Juvital fortified fruit drinks. We regret the delay.
FACTS:
Your letter of December 21, 2000, indicated that the subject merchandise will be imported in three varieties: Passion Fruit & Peach, Orange & Banana, and Pineapple & Orange. The Passion Fruit & Peach product is stated to contain 58.49% water, 14% peach puree, 6% passion fruit concentrate, 9.92% sugar, 8% skim milk powder, 2% cereal, 1% citric acid, 0.36% stabilizer, and various quantities of calcium and vitamins. The Orange & Banana product contains 59.33% water, 14% orange concentrate, 6% banana puree, 9.09% sugar, 8% skim milk powder, 2% cereal, 1% citric acid, 0.36% stabilizer, and various quantities of calcium and vitamins. The Pineapple & Orange product contains 59.01% water, 12% pineapple concentrate, 8% orange concentrate, 9.40% sugar, 8% skim milk powder, 2% cereal, 1% citric acid, 0.36% stabilizer, and various quantities of calcium and vitamins. All of the above products are imported ready for consumption in aseptic cartons holding 330 milliliters.
In NY G86210, the Director, National Commodity Specialists Division, determined that the Juvital ”fruit juice” products were classified in subheading 2202.90.2400, HTSUS, which provides for waters…and other non-alcoholic beverages…other: milk-based drinks…other: Described in additional U.S. note 1 to chapter 4: Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions, if imported in quantities that fall within the limits described in additional U.S. note 10 to chapter 4. If the quantitative limits of additional U.S. note 10 to chapter 4 have been reached, the product would be classified in subheading 2202.90.2800, HTSUS. In addition, products classified in subheading 2202.90.2800, HTSUS, would be subject to additional duties based on their value, as described in subheadings 9904.04.50 to 9904.04.58, HTSUS.
Your letter of February 15, 2001, states that the products should be classified in a provision other than "milk based" because skim milk powder makes up only 8% of the products ingredients and because "the essential character of the 'Juvital' fruit drinks is fruit juice --this product would not be purchased as a milk product --the consumer would purchase this as a fruit drink product." You request classification in subheading 2202.90.9090, HTSUS.
ISSUE:
Whether the Juvital drink as formulated is classifiable in subheading 2202.90, as a milk-based drink or as other than a milk-based drink.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported 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 GRIs may then be applied.
The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.
The HTSUS provisions under consideration are as follows:
2202.90.24 or 2202.90.28: Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other non-alcoholic beverages, not including fruit or vegetable juices of heading 2009: Other: Milk-based drinks: Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions [for "24"] or Other [for "28"].
2202.90.90: Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other non-alcoholic beverages, not including fruit or vegetable juices of heading 2009: Other: Other.
The provisions under consideration are within heading 2202, HTSUS, as indicated supra. At issue within the heading, under the control of GRI 6, is whether the instant beverages meet the description of "Milk-based drinks." If they meet this description, they are more specifically provided for in subheading 2202.90.24 or 2202.90.28, HTSUS, than in the residual "Other" provision of subheading 2202.90.90, HTSUS. In other words, since the contest is at the eight-digit level, that is, all the acceptable choices will have the same first six digits, under the authority of GRI 6, all the subheadings at the eight digit level are treated under the same rules as though they were four digit headings. Therefore, the analysis does not consider "essential character", which is an element that only arises under the GRI's in the case of composite goods and sets put up for retail sale.
Headquarters rulings (HQ) have treated the subject of "how much" milk products need to be present in a beverage to make it a milk-based drink. As a starting point, the EN's to heading 2202 state that "The heading covers non-alcoholic beverages. . . (B) . . . This group includes, inter alia, (2) Certain other beverages ready for consumption, such as those with a basis of milk or cocoa." Therefore, the EN's make it clear that certain milk-based drinks are properly classified in the heading. Moreover, this suggests that the milk portion would be the predominant ingredient beyond water. HQ 952016, dated July 26, 1992, indicates that fluid milk contains 87% water and 13% milk solids, while in the case of skim milk, the amount of milk solids has been reduced to 9%. That ruling held that the beverage under consideration was not milk-based, because the milk solids were not greater than 1.13%, and that the product was classified in subheading 2202.90.9090, HTSUS. Likewise, in HQ 952107, dated September 17, 1992, a product was classified in subheading 2202.90.9090, that had 3.1% powdered non-fat fermented milk plus orange flavoring. That ruling determined that the amount of milk was insignificant and the orange imparted the dominant flavor. See also HQ 952178, dated November 23, 1992.
By contrast, HQ 952776, dated February 10, 1993, held that three protein drinks: Tiger's Milk Drink (Liquid Caramel Vanilla), Tiger's Milk Drink (Liquid Strawberry Shake), and DNA Body Shaper which contained 80% water, 5.5% to 6% nonfat dry milk solids, 8% fructose, and flavors, minerals, fillers and preservatives were classified in the provision for milk-based beverages at that time (subheading 2202.90.20/9904.10.60), because the amount of milk in the products was significant and imparted the essential character to the beverages.
We do not dispute your claim that the consumer would purchase Juvital as a fruit drink product; however, the Juvital beverages under consideration in this decision have an appreciable amount of milk solids, 8%, very close to the 9% present in ordinary skim milk, and with a greater percentage than has been ruled on by Customs to be a milk-based beverage. Consequently, the beverages meet Customs understanding of milk-based and are, in substance, skim milk with flavor of the added fruit juices. Because the classification is determined by the product meeting the terms of the subheading under GRI 6/GRI 1, and because the products do meet those terms, consideration of the "other" of subheading 2202.90.90, HTSUS, cannot take place.
HOLDING:
The applicable subheading for the Juvital ”fruit juice” products, if imported in quantities that fall within the limits described in additional U.S. note 10 to chapter 4, will be 2202.90.2400, HTSUS, which provides for waters…and other non-alcoholic beverages…other: milk-based drinks…other: Described in additional U.S. note 1 to chapter 4: Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions. If the quantitative limits of additional U.S. note 10 to chapter 4 have been reached, the product will be classified in subheading 2202.90.2800, HTSUS. In addition, products classified in subheading 2202.90.2800, HTSUS, will be subject to additional duties based on their value, as described in subheadings 9904.04.50 to 9904.04.58, HTSUS.
NY G86210 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division