OT:RR:CTF:FTM H314968 MJD
Ms. Misty Gibbins
Pacific Customs Brokers Inc.
1400 A ST
Blaine, Washington 98230
RE: Tariff Classification of Snack Foods; USMCA
Dear Ms. Gibbins,
This is in response to your request, dated October 5, 2020, for a binding ruling, on behalf of Baby Gourmet Foods Inc. (“Baby Gourmet”), concerning the tariff classification and eligibility of several snack foods called “Slammers” for preferential tariff treatment under the United States-Mexico-Canada Agreement (“USMCA”). Your request, submitted as an electronic ruling request, was forwarded to this office from the National Commodity Specialist Division for review. Our ruling is set forth below.
FACTS:
The merchandise at issue consists of five different types of snack foods called “Slammers.” The five “Slammers” are the “Awesome Acai Strawberry Apple,” “Epic Orange Mango,” “Chill’n Yumberry Banana Blueberry,” “Pomegranate Grape Crush,” and “Watermelon Kiwi Crush.” The “Slammers” are made of various fruit and vegetables purees, juice concentrates, and other ingredients. According to your submission, they are “marketed for retail sale to young kids as a superfood snack.” The “Slammers” are made in Canada and prepared with the following ingredients:
The “Awesome Acai Strawberry Apple,” contains organic apple puree from Argentina classified in subheading 2007.99.48, Harmonized Tariff Schedule of the United States (“HTSUS”), and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack food also contains in amounts of 10 percent or less, organic beet puree from the United States, organic blueberry puree SS from the United States, organic strawberry puree from the United States, organic acai puree from Brazil, organic precooked amaranth flour from Canada, organic lemon juice concentrate from Mexico, and wellmune beta glucan from Columbia.
The “Epic Orange Mango,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS, and organic mango puree from Mexico classified in subheading 2007.99.50, HTSUS. The snack food also contains in amounts of 10 percent or less, organic carrot puree from the United States, organic lemon juice concentrate from Mexico, organic orange juice from Mexico, organic vanilla from the United States, and wellmune beta glucan from Columbia.
The “Chill’n Yumberry Banana Blueberry,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack food also contains in amounts of 10 percent or less, organic blueberry puree SS from the United States, organic butternut squash puree from the United States, organic yumberry juice concentrate from China, organic blueberry puree from Canada, organic lemon juice concentrate from Mexico, and wellmune beta glucan from Columbia.
The “Pomegranate Grape Crush,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack foods also contain in amounts of 10 percent or less, coconut cream UHP from Sri Lanka, concord grape juice concentrate from the United States, whey protein 9420 Isolate from the United States, organic antifoam 3000 from the United States, pomegranate natural organic flavor from Canada, purple carrot juice concentrate from Turkey, pomegranate juice concentrate from Turkey, and lemon juice from Mexico.
The “Watermelon Kiwi Crush,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack food also contains in amounts of 10 percent or less, whey protein 9420 isolate from the United States, Niagara white grape juice concentrate from the United States, red beet juice concentrate from the United States, strawberry flavor from Canada, watermelon natural organic flavor from Canada, strawberry juice concentrate from the United States, watermelon juice concentrate from the United States, lemon juice concentrate from Mexico, and organic anti foam from the United States.
In Canada, the abovementioned ingredients go through a process of “blending, homogenization, and pasteurization.” The products are then “hot filled into 90-gram net weight, laminated PET 12/AL9/PE90 pouches, sealed with a plastic twist off lid and then cooled. The 90-gram pouches are packed four to a box for retail sale.”
ISSUES:
What is the tariff classification of the “Slammers”?
Are the “Slammers” eligible for preferential tariff treatment under the USMCA?
LAW AND ANALYSIS:
Tariff Classification
Classification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the 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 GRI may then be applied.
The 2020 HTSUS provisions under consideration are as follows:
2008: Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included:
2104: Soups and broths and preparations therefor; homogenized composite
food preparations:
* * * * *
Note 3 to Chapter 21, HTSUS, provides as follows:
For the purposes of heading 2104, the expression “homogenized composite food preparations” means preparations consisting of a finely homogenized mixture of two or more basic ingredients such as meat, fish, vegetables, fruit or nuts, put up for retail sale as food suitable for infants or young children or for dietetic purposes, in containers of a net weight content not exceeding
250 g. For the application of this definition, no account is to be taken of small quantities of any ingredients which may be added to the mixture for seasoning, preservation or other purposes. Such preparations may contain a small quantity of visible pieces of ingredients.
* * * * *
In understanding the language of the HTSUS, the Explanatory Notes (“EN”) of the Harmonized Commodity Description and Coding System may be utilized. The EN, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).
The General EN to Chapter 20, provides, in pertinent part, as follows:
This Chapter includes:
[. . .]
(4) Homogenised prepared or preserved vegetables and fruit.
EN 20.08 provides, in pertinent part, as follows:
This heading covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter.
[. . .]
The products of this heading may be sweetened with synthetic sweetening agents (e.g., sorbitol) instead of sugar. Other substances (e.g., starch) may be added to the products of this heading, provided that they do not alter the essential character of fruit, nuts or other edible parts of plants.
The products of this heading are generally put up in cans, jars or airtight containers, or in casks, barrels or similar containers.
EN 21.04 provides, in pertinent part, as follows:
(B) HOMOGENISED COMPOSITE FOOD PREPARATIONS
In accordance with Note 3 to this Chapter, the homogenised composite food preparations of this heading are those which consist of a finely homogenised mixture of two or more basic ingredients such as meat, fish, vegetables or fruit, put up for retail sale as food suitable for infants or young children or for dietetic purposes, in containers of a net weight content not exceeding 250 g. Besides the basic ingredients, these preparations may contain small quantities of substances such as cheese, egg yolk, starch, dextrin, salt or vitamins, which are added either for dietetic purposes (balanced diet), or for seasoning, preservation or for other purposes. They may also contain visible pieces of ingredients, provided that such pieces are present only in small quantities, i.e., that they do not alter the character of the products as homogenised preparations.
Homogenised composite food preparations are generally used as food suitable for infants or young children and take the form of a smooth paste, of varying consistency, suitable for consumption either directly or after re-heating. They are usually put up in airtight jars or cans in a quantity generally corresponding to one whole meal.
* * * * *
You state that all five “Slammers” are classified in heading 2104, HTSUS, specifically, subheading 2104.20.5000, HTSUSA (“Annotated”), which provides for “[s]oups and broths and preparations therefor; homogenized composite food preparations: Homogenized composite food preparations: Put up for retail sale as food suitable for young children.” Note 3 to Chapter 21 (“Note 3”), provides, in pertinent part, that:
For the purposes of heading 2104, the expression “homogenized composite food preparations” means preparations consisting of a finely homogenized mixture of two or more basic ingredients such as meat, fish, vegetables, fruit or nuts, put up for retail sale as food suitable for infants or young children or for dietetic purposes, in containers of a net weight content not exceeding 250 g.
According to Note 3, three criteria must be met in order for a food to be classified in heading 2104, HTSUS, as a “homogenized composite food preparation.” First, the preparation must be a “finely homogenized mixture of two or more basic ingredients such as meat, fish, vegetables, fruit or nuts.” Second, the food preparation must be “put up for retail sale as food suitable for infants or young children or for dietetic purpose.” Lastly the food preparation must be “in containers of a net weight content not exceeding 250 g.” In the instant case, all five “Slammers” meet the first and third requirement of Note 3. The “Slammers” are a finely homogenized mixture of fruit and vegetables, and other ingredients, and they are packaged in 90 g pouches. However, the “Slammers” do not meet the second requirement of Note 3 because they are not “put up for retail sale as food suitable for infants or young children or for dietetic purposes.”
The terms “infants” or “young children” are not defined in the HTSUS. However, CBP has previously considered the term “infant” and “young children” when classifying apparel under the HTSUS. In apparel classification, CBP have used the terms “infant” (also “babies”) and “young children” interchangeably. For example, Note 6(a) to Chapter 61 provides that “[t]he expression “babies’ garments and clothing accessories” means articles for young children of a body height not exceeding 86 centimeters.” Also, CBP, when classifying apparel, has defined an “infant” or “young child” as someone who is less than 2 years old. See Headquarters Ruling Letter (“HQ”) 082762, dated March 19, 1990 (classifying an infant’s two-piece snowsuit and citing to Headquarters Letter of October 27, 1987, file #081165, where Customs stated that for a child “a height not exceeding 86 centimeters” translated into the existing commercial size range of 0 to 24 months”); New York Ruling Letter (“NY”) I83817, dated July 29, 2002 (classifying a hat as an infant hat, and not a toddler hat, stating that “hats are normally labeled and marketed from 0 to 24 months as infant’s hats, and from 2 years to 3 years as toddler hats”); HQ 088575, dated May 31, 1991 (describing a babies’ costume hat and bib set as “sets [that] are sized for infants 0 to 24 months”). CBP has applied the definition of “children” and “infant” for apparel classification to food products as well. See HQ W967962, dated November 15, 2006, (classifying Cerelac, a wheat cereal with milk, as a preparation for infants by using the definition of “infant” used in classifying infant apparel). Therefore, we apply this definition of “young children” and “infant” to the instant case.
Here, the “Slammers” are not put up for retail sale as foods suitable for children that are 0 to 24 months old. They are put up for retail sale for older children, well over the age of two years old. The “Slammers” website contains many photos of older children and teenage children used to advertise the “Slammers.” None of which are children from 0 to 24 months old. For example, there is a photo of the founders and their children, who are much older than two years old, some of which are teenagers, whom they say inspired the creation of the “Slammers.” Moreover, in discussing the “Slammers,” the product is clearly targeted to children much older than two years old. For example, the website states how the product is “appealing to kids beyond the preschool years.” Another example is how there is a quote on the website from a mother who gives “Slammers” to her children where she states that, “my 12-year-old daughter dances every day, while her eight-year-old brother does taekwondo, swims, and takes hip-hop and tap lessons . . . I’m always looking for decent snacks to throw at the kids, and Slammers have become a staple in their lunches and sports bags.” The mother goes on to say that “[w]hen my kids were little, they loved applesauce pouches, so Slammers was an easy sell to them.” The website states that the “Slammers” are appropriate for people of all ages, and the “Slammers” are clearly marketed as food suitable for children much older than two years old. Lastly, the “Slammers” are not put for retail sale as food suitable for dietetic purposes. There is nothing about the “Slammers” that demonstrates that these products are suitable for dietetic purposes. Therefore, we find that the “Slammers” are not classified in heading 2104, HTSUS, as “homogenized composite food preparations” because they are not “put up for retail sale as food suitable for infants or young children or for dietetic purposes.”
Instead, the “Slammers” are classified in heading 2008, HTSUS, which provides for “[f]ruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.” The general EN to Chapter 20 provides that the chapter covers “[h]omogenised prepared or preserved vegetables and fruit.” Furthermore, the EN to 20.08, covers “fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter.” We find that the “Slammers” are appropriately classified in heading 2008, HTSUS, because the heading specifically provides for fruit preparations and the “Slammers” are fruit preparations made overwhelmingly with fruit puree. In accordance, with the general EN to Chapter 20, they are homogenized preparation of vegetables and fruits, and in line with the EN to 20.08 they are mixtures. Moreover, the EN to 20.08 states, in pertinent part, that “[o]ther substances (e.g., starch) may be added to the products of this heading, provided that they do not alter the essential character of fruit, nuts or other edible parts of plants.” The other ingredients in the “Slammers” such as the amaranth flour, vegetable puree, vegetable concentrate, wellmune beta glucan, whey protein, etc., are in quantities of less than 10% by weight of the overall product, and do not “alter the essential character” of the fruit purees. Furthermore, non-fruit ingredients in the “Slammers” are not prohibited items by the language in either the legal notes, heading, or the ENs. See also HQ H304024, dated February 18, 2020.
CBP has classified similar products in heading 2008, HTSUS. For example, in NY N258274, dated November 13, 2014, CBP classified smoothie type fruit snacks for adult health and wellness nutrition packaged in pouches in heading 2008, HTSUS. The fruit snacks came in an orange peach flavor, tropical flavor, and mixed berry flavor and contained, among other ingredients, fruit puree, fruit juice, whey protein, and whey protein isolate. Similarly, in NY N243774, dated July 16, 2013, CBP classified three freeze dried snack foods (the Banana-Blueberry-Red Beet, the Apple-Spinach, and Strawberry-Carrot) in the form of square-shaped, crunchy bites in heading 2008, HTSUS. The fruit snacks contained fruit puree, fruit juice, red beet juice concentrate (the Banana-Blueberry-Red beet), spinach powder (the Apple-Spinach), and carrot juice concentrate (Strawberry-Carrot), and black carrot juice concentrate (Strawberry-Carrot). Likewise, in NY N177715, dated August 15, 2011, CBP classified several baby food products in heading 2008, HTSUS. The products were the “Banana Apple Strawberry,” “Apple Sweet Potato Pineapple,” “Pear Banana Raspberry,” “Peach Apple Banana,” “Apple Peach Strawberry,” and “Banana Pear Sweet Potatoes,” and they contained water, fruit puree, lemon juice concentrate, sweet potato puree (”Banana Pear Sweet Potatoes” and “Apple Sweet Potato Pineapple”).
Accordingly we find that the “Awesome Acai Strawberry Apple,” “Epic Orange Mango,” “Chill’n Yumberry Banana Blueberry,” “Pomegranate Grape Crush,” and “Watermelon Kiwi Crush,” are classified in heading 2008, HTSUS, specifically, subheading 2008.97.1040, HTSUSA, which provides for “[f]ruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears: Other.”
If not imported in airtight containers, the “Awesome Acai Strawberry Apple,” “Epic Orange Mango,” “Chill’n Yumberry Banana Blueberry,” “Pomegranate Grape Crush,” and “Watermelon Kiwi Crush,” are classified in subheading 2008.97.9094, HTSUSA, which provides for “[f]ruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: Other: Other: Other.”
Eligibility for Preferential Tariff Treatment under the USMCA
The USMCA was signed by the Governments of the United States, Mexico, and Canada on November 30, 2018. The USMCA was approved by the U.S. Congress with the enactment on January 29, 2020, of the USMCA Implementation Act, Pub. L. 116-113, 134 Stat. 11, 14 (19 U.S.C. § 4511(a)). General Note (“GN”) 11 of the HTSUS implements the USMCA. GN 11(b) sets forth the criteria for determining whether a good is an originating good for purposes of the USMCA. GN 11(b) states:
For the purposes of this note, a good imported into the customs territory of the United States from the territory of a USMCA country, as defined in subdivision (l) of this note, is eligible for the preferential tariff treatment provided for in the applicable subheading and quantitative limitations set forth in the tariff schedule as a “good originating in the territory of a USMCA country” only if—
the good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries;
the good is a good produced entirely in the territory of one or more USMCA countries, exclusively from originating materials;
the good is a good produced entirely in the territory of one or more USMCA countries using nonoriginating materials, if the good satisfies all applicable requirements set forth in this note (including the provisions of subdivision (o)); or
. . .
Since the “Slammers” contains non-originating ingredients, they are not considered goods wholly obtained or produced entirely in a USMCA country under GN 11(b)(i), nor are they produced exclusively from originating materials per GN 11(b)(ii). Thus, we must determine whether the “Slammers” qualifies under GN 11(b)(iii). As previously noted, the “Slammers” are classified under heading 2008.97, HTSUS. The applicable rule of origin for goods classified under subheading 2008.97, HTSUS, is in GN 11(o)/20.3, HTSUS, which provides “[a] change to subheadings 2008.19 through 2008.99 from any other chapter.”
In this case, all of the “Slammers” contain the following non-originating ingredients that need to undergo the tariff shift: the organic apple puree from Argentina, classified in subheading 2007.99.48, HTSUS, and the organic banana puree from Ecuador, classified in subheading 2007.99.65, HTSUS. Since these non-originating ingredients are classified in Chapter 20, HTSUS, the tariff shift rule is not met. Accordingly, the “Slammers” are not eligible for preferential tariff treatment under the USMCA.
HOLDING:
Pursuant to GRI 1, if imported in airtight containers, the “Awesome Acai Strawberry Apple,” “Epic Orange Mango,” “Chill’n Yumberry Banana Blueberry,” “Pomegranate Grape Crush,” and “Watermelon Kiwi Crush,” are classified in subheading 2008.97.1040, HTSUSA, which provides for “[f]ruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears: Other.” The 2020 column one, general rate of duty will be 5.6% ad valorem.
If not imported in airtight containers, the “Awesome Acai Strawberry Apple,” “Epic Orange Mango,” “Chill’n Yumberry Banana Blueberry,” “Pomegranate Grape Crush,” and “Watermelon Kiwi Crush,” are classified in subheading 2008.97.9094, HTSUSA, which provides for “[f]ruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Mixtures: Other: Other: Other.” The 2020 column one, general rate of duty will be 14.9% ad valorem.
Based on the information provided, the “Slammers” are not eligible for preferential tariff treatment under the USMCA.
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.”
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is 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,
Yuliya A. Gulis, Chief
Food, Textiles and Marking Branch