CLA-2 OT:RR:CTF:TCM H242694 CkG
TARIFF NO: 2106.90.09
Letty Lacerda
General Manager – VP of Operations
The Green Labs
20 Mill st. M1100
Belleville, NJ 07109
Re: Request for Binding Ruling for microencapsulated iron supplement
Dear Ms. Lacerda:
This is in response to your request of November 12, 2012, on behalf of The Green Labs, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of AB Fortis, a microencapsulated iron supplement.
FACTS:
AB Fortis is a dark brown powder of microencapsulated ferric saccharate. A calcium alginate matrix produced by ionotropic gelation encapsulates the ferric saccharate (an iron salt) inside for controlled release and better absorption of the iron. The ionotropic gelation cross links the calcium and alginate to form a three-dimensional matrix surrounding the iron core. The AB Fortis is intended for use as a food supplement/fortification to resolve iron deficiency. The encapsulation is stated to stabilize the ferric saccharate by preventing oxidation of the iron, which in turn greatly prolongs the shelf life of the product and prevents the release of iron directly into the fortified foods, avoiding the metallic taste of other iron supplements.
You state that AB Fortis is composed of 73% ferric saccharate, 22% calcium alginate, and 5% water. This is consistent with the analysis conducted on a sample of by the CBP Laboratory in New York. The CBP Laboratory Report indicates that the AB-Fortis contains approximately 41.2% iron and 2.59% calcium on a dry basis.
ISSUE:
Whether the AB Fortis is classified as a food preparation of heading 2106, HTSUS, or a chemical product not elsewhere specified or included of heading 3824, HTSUS.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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:
2106: Food preparations not elsewhere specified or included:
2106.90: Other:
Other:
Other:
Other:
Other:
2106.90.99: Other…
* * * * * *
3824: Prepared binders for foundry molds or cores; chemical products and
preparations of the chemical or allied industries (including those consisting of
mixtures of natural products), not elsewhere specified or included:
3824.90: Other
Other:
Other:
Other:
3824.90.92: Other…
* * * * * *
Note 1 to Chapter 29 provides, in pertinent part:
Except where the context otherwise requires, the headings of this chapter
apply only to:
Separate chemically defined organic compounds, whether or not
Containing impurities;
…
(f) The products mentioned in (a), (b), (c), (d) or (e) above with an added
stabilizer (including an anticaking agent) necessary for their preservation
or transport;
* * *
Note 1 to chapter 38 provides, in pertinent part, as follows:
This Chapter does not cover…
(b) Mixtures of chemicals with foodstuffs or other substances with nutritive
value, of a kind used in the preparation of human foodstuffs (generally,
heading 2106);
* * * * * *
The Harmonized Commodity Description and Coding System (HS) Explanatory Notes (“ENs”) constitute the official interpretation of the HS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HS at the international level, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 21.06 (B) provides 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.).”
The General EN to Chapter 29 provides:
GENERAL
As a general rule, this Chapter is restricted to separate chemically defined compounds, subject to the provisions of Note 1 to the Chapter.
(A) Chemically defined compounds
(Chapter Note 1)
A separate chemically defined compound is a substance which consists of one molecular species (e.g., covalent or ionic) whose composition is defined by a constant ratio of elements and can be represented by a definitive structural diagram. In a crystal lattice, the molecular species corresponds to the repeating unit cell.
Separate chemically defined compounds containing other substances deliberately added during or after their manufacture (including purification) are excluded from this Chapter. Accordingly, a product consisting of saccharin mixed with lactose, for example, to render the product suitable for use as a sweetening agent is excluded (see Explanatory Note to heading 29.25).
The General EN to Chapter 38, further provides:
For the purposes of Note 1 (b) to the Chapter, the expression “foodstuffs or other substances with nutritive value” principally includes edible products of Sections I to IV.
The expression “foodstuffs or other substances with nutritive value” also includes certain other products, for example, products of Chapter 28 used as mineral supplements in food preparations, sugar alcohols of heading 29.05, essential amino acids of heading 29.22, lecithin of heading 29.23, provitamins and vitamins of heading 29.36, sugars of heading 29.40, animal blood fractions of heading 30.02 for use in food preparations, casein and caseinates of heading 35.01, albumins of heading 35.02, edible gelatin of heading 35.03, edible protein substances of heading 35.04, dextrins and other edible modified starches of heading 35.05, sorbitol of heading 38.24, edible products of Chapter 39 (such as amylopectin and amylose of heading 39.13). It should be noted that this list of products is simply illustrative and should not be taken to be exhaustive.
The mere presence of “foodstuffs or other substances with nutritive value” in a mixture would not suffice to exclude the mixture from Chapter 38, by application of Note 1 (b). The mixtures which are excluded from Chapter 38 by virtue of Note 1 (b) are those which are of a kind used in the preparation of human foodstuffs.
* * * * * *
Headings 2106, HTSUS, and 3824, HTSUS, only cover products which
are not more specifically provided for elsewhere in the tariff. Hence, we must first consider whether the AB Fortis is described in any other heading.
Ferric saccharate and calcium alginate are products of Chapter 29. However, pursuant to Note 1(a) and Note 1(f), Chapter 29 does not include compounds containing other substances deliberately added during or after their manufacture to render the product suitable for a specific use. While the AB Fortis contains 73% ferric saccharate, it is formulated for a specific use by encapsulation of the iron core with the calcium alginate matrix. Even if the calcium alginate could be considered a stabilizer permissible under Note 1(f) to Chapter 29, it is not added for the preservation or the transport of the ferric saccharate. Rather, the calcium alginate is added to improve the taste and appearance of fortified foods and to improve the absorption of the ferric saccharate by preventing oxidation of the iron. AB Fortis thus excluded from classification in Chapter 29. As AB Fortis is not more specifically provided for elsewhere in the tariff, the only headings under consideration are 2106, HTSUS, and 3824, HTSUS.
Heading 2106, HTSUS, provides for food preparations. EN 21.06, as well as
Note 1(b) to Chapter 38, further clarify that heading 2106, HTSUS, covers mixtures of chemicals with foodstuffs or other substances with nutritive value, for incorporation in food preparations either as ingredients or to improve some of their characteristics.
A mixture is “a blend or combination; an aggregate of heterogeneous ingredients. See Oxford English Dictionary Online, at http://www.oed.com/search?searchType=dictionary&q=mixture&_searchBtn=Search; See also, Merriam-Webster Dictionary Online (“combination: as a : a portion of matter consisting of two or more components in varying proportions that retain their own properties.”), at http://www.merriam-webster.com/dictionary/mixture.
AB Fortis contains primarily ferric saccharate (an iron salt) and calcium alginate (calcium salt). The calcium alginate and ferric saccharate retain their respective properties and can be separated by dissolution of the calcium alginate coating. AB Fortis can thus be considered a mixture of chemical compounds. Furthermore, ferric saccharate and calcium alginate are both substances of nutritive value of the type described in EN 21.06 and the General EN to Chapter 38. The General EN to Chapter 38 specifically directs the classification of products of Chapter 28 (which includes both iron and calcium) used as mineral supplements to heading 2106, HTSUS. The EN to heading 2106 also lists calcium salts as an example of the chemical component of a mixture of heading 2106, HTSUS.
Finally, AB-Fortis has been formulated for a specific use—the preparation of human foodstuffs. It is formulated as a food additive rather than a supplement to be taken directly. Ferric saccharate is a soluble iron salt with high bioavailability, and the organic polymer surrounding the iron core is designed to prevent the release of the iron into the food so as to prevent undesirable effects such as a metallic taste or oxidation.
AB-Fortis is a mixture containing chemicals and nutrients which has been formulated for and is used in the preparation of human foodstuffs, and is therefore covered by heading 2106, HTSUS.
This finding is consistent with prior CBP rulings classifying similar mixtures of chemicals and nutritive substances, including microencapsulated products, in heading 2106, HTSUS. See HQ H097660, dated September 2, 2010; HQ 965782, dated October 22, 2002; HQ 962766, dated January 23, 2001; HQ 962940, dated May 10, 2000; HQ 956649, dated December 8, 1994; NY I85369, dated August 27, 2002.
HOLDING:
AB Fortis is classified in heading 2106, HTSUS, specifically subheading 2106.90.99, HTSUS, which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other.” The 2013 general, column one rate of duty is 6.4% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed
at the time the goods are entered. If the documents have been filed without a
copy, this ruling should be brought to the attention of the CBP officer handling the
transaction.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division