OT:RR:CTF:FTM H324168 PJG
Brandy L. Porter
Assistant Center Director - Enforcement
Pharmaceuticals, Health, and Chemicals Center of Excellence and Expertise
U.S. Customs and Border Protection
1100 Raymond Blvd.
Newark, New Jersey 07102
ATTN: Ms. Anabelle Sánchez, Supervisory Import Specialist
RE: Internal Advice; Tariff Classification of CA2786 Spirulina Blue Colour
Dear Assistant Center Director:
This is in response to the internal advice request, initiated by Willson International Incorporated (“Willson”), on behalf of their client, Calico Food Ingredient Ltd. (“Calico Food”), dated November 17, 2021, and transmitted to our office on March 25, 2022, concerning the tariff classification of CA2786 Spirulina Blue Colour under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The merchandise for which an internal advice on tariff classification was requested is called CA2786 Spirulina Blue Colour. The product is described as a water soluble, coloring powder that ranges from light greenish blue to dark blue. Willson states that the product “is made in China and is sold to food manufacturers for use in the beverage, confectionary, dairy, nutraceutical, and pet food industries.” The product is said to have the ability to “enhance[] immunity” and have “anti-inflammat[ory], anti-oxidant, [and] anti-cancer effect[s].”
Spirulina is described as a one-cell algae and the blue color extraction is referred to as phycocyanin. The ingredients in the CA2786 Spirulina Blue Colour are composed of phycocyanin (Spirulina extract) from China, trehalose from Japan, and sodium citrate from China. Willson provides the following ingredient breakdown: phycocyanin (spirulina extract) 50-55%; trehalose 45-50%, and sodium citrate 5%. Willson indicates that the trehalose is meant to protect the protein and the sodium citrate is meant to adjust the PH and can protect the color.
Willson also provides a process flow chart indicating, in relevant part, that the product is developed by extracting the phycocyanin from the spirulina using water, breaking the cell wall, filtering, separating using centrifugation, eventually drying at a temperature of 320 degrees Fahrenheit, and adding the trehalose and sodium citrate (when required by the customer). Willson confirmed that in the instant case, the trehalose and sodium citrate are always incorporated in the product. The product is subsequently packaged and shipped to the customer for further processing.
Willson explains that their client originally classified the product under subheading 3203.00.8000, HTSUSA, which provides for “[c]oloring matter of vegetable or animal origin (including dyeing extracts but excluding animal black), whether or not chemically defined; preparations as specified in note 3 to this chapter based on coloring matter of vegetable or animal origin: Other.” Willson International believes the product to be properly classified under subheading 2102.20.6000, HTSUSA, which provides for “[y]easts (active or inactive); other single-cell microorganisms, dead (but not including vaccines of heading 3002); prepared baking powders: Inactive yeasts; other single-cell microorganisms, dead: Other.”
ISSUE:
What is the proper tariff classification of the CA2786 Spirulina Blue Colour?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is determined in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods 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:
2102 Yeasts (active or inactive); other single-cell microorganisms, dead (but not
including vaccines of heading 3002); prepared baking powders:
* * *
2102.20 Inactive yeasts; other single-cell microorganisms, dead:
* * *
2102.20.60 Other
* * *
3203.00 Coloring matter of vegetable or animal origin (including dyeing extracts but
excluding animal black), whether or not chemically defined; preparations as specified in note 3 to this chapter based on coloring matter of vegetable or animal origin:
* * *
3203.00.80 Other
* * *
3206 Other coloring matter; preparations as specified in note 3 to this chapter, other than those of heading 3203, 3204 or 3205; inorganic products of a kind used as luminophores, whether or not chemically defined:
* * *
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:
* * *
Other:
* * *
3824.99 Other:
* * *
Other:
* * *
Other:
* * *
Other:
* * *
3824.99.92 Other
Note 3 to Chapter 32, HTSUS, states as follows:
Headings 3203, 3204, 3205 and 3206 apply also to preparations based on coloring matter (including, in the case of heading 3206, coloring pigments of heading 2530 or chapter 28, metal flakes and metal powders), of a kind used for coloring any material or used as ingredients in the manufacture of coloring preparations. The headings do not apply, however, to pigments dispersed in nonaqueous media, in liquid or paste form, of a kind used in the manufacture of paints, including enamels (heading 3212), or to other preparations of heading 3207, 3208, 3209, 3210, 3212, 3213 or 3215.
Note 1(b) to Chapter 38, HTSUS, states 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 Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the ENs “provide a commentary on the scope of each heading” of the HTSUS and are “generally indicative of [the] proper interpretation” of these headings. See id.
The EN to 21.02 states, in pertinent part:
* * *
(B) OTHER SINGLE-CELL MICRO-ORGANISMS, DEAD
This category covers single-cell micro-organisms such as bacteria and unicellular algae, which are not alive. Inter alia, covered here are those which have been obtained by cultivation on substrates containing hydrocarbons or carbon dioxide. These products are particularly rich in protein and are generally used in animal feeding.
Certain products of this group may be put up as food supplements for human consumption or animal feeding (e.g., in powder or tablet form) and may contain small quantities of excipients, e.g., stabilising agents and anti-oxidants. Such products remain classified here provided that the addition of such ingredients does not alter their character as micro-organisms.
* * *
The EN to Chapter 32 states, in pertinent part:
GENERAL
* * *
It also includes colouring matter of vegetable, animal or mineral origin and synthetic organic colouring matter and most of the preparations obtained from these colouring matters (paints, ceramic colours, inks, etc.). Various other preparations such as varnishes, driers and putty are also included.
* * *
The EN to 32.06 states, in pertinent part:
OTHER COLOURING MATTER; PREPARATIONS AS SPECIFIED IN NOTE 3 TO THIS CHAPTER, OTHER THAN THOSE OF HEADING 32.03, 32.04 OR 32.05
This heading covers inorganic colouring matter or colouring matter of mineral origin.
* * *
Inorganic pigments with added organic colouring matter are also classified in this heading.
These products are primary materials used principally for the manufacture of the colours or pigments for the ceramic industries (see the Explanatory Note to heading 32.07), the colours, paints, enamels and lacquers of headings 32.08 to 32.10 and 32.12, artists’, students’ or amusement colours of heading 32.13 and printing inks (classified in heading 32.15).
* * *
The subject merchandise is not classifiable in heading 2102, HTSUS, which provides, in relevant part, for “other single-cell microorganisms, dead (but not including vaccines of heading 3002).” In accordance with EN to 21.02, products may remain in that heading even if they “contain small quantities of excipients, e.g., stabilising agents and anti-oxidents….provided that the addition of such ingredients does not alter their character as micro-organisms.” In the instant case, the spirulina, which is a one-cell algae, undergoes an extraction process to separate the phycocyanin, which would alter its character as a micro-organism. Moreover, two excipients are added to the product, specifically, the trehalose, which Willson states is meant to protect the protein, and the sodium citrate, which Willson states is meant to adjust the PH and can protect the color. Willson indicates that the product contains 45-50% trehalose, a quantity which cannot be characterized as not altering the character of the product as micro-organism. Based on this information, the addition of the trehalose and the sodium citrate alter the character of the product as micro-organisms; therefore, the product is not classifiable in heading 2102, HTSUS.
The subject merchandise is also not classifiable in heading 3203, HTSUS, which provides for “[c]oloring matter of vegetable or animal origin (including dyeing extracts but
excluding animal black), whether or not chemically defined; preparations as specified in note 3 to this chapter based on coloring matter of vegetable or animal origin.” To be classifiable under this heading, a product must be “of vegetable or animal origin” and the subject merchandise includes two chemical excipients and an extraction from a single-cell algae, spirulina, which is neither a vegetable nor an animal.
The subject merchandise is also not classifiable in heading 3206, HTSUS. Heading 3206, HTSUS, provides for “[o]ther coloring matter; preparations as specified in note 3 to this chapter, other than those of heading 3203, 3204 or 3205; inorganic products of a kind used as luminophores, whether or not chemically defined.” With respect to the first part of the heading, specifically, “[o]ther coloring matter; preparations as specified in note 3 to this chapter, other than those of heading 3203, 3204 or 3205,” the EN to 32.06, states in pertinent part, that “[t]hese products are primary materials used principally for the manufacture of the colours or pigments for the ceramic industries (see the Explanatory Note to heading 32.07), the colours, paints, enamels and lacquers of headings 32.08 to 32.10 and 32.12, artists’, students’ or amusement colours of heading 32.13 and printing inks (classified in heading 32.15).” Willson indicates that the primary purpose of the subject merchandise is to provide color to food and beverages, and in their original submission, they indicate that the product can also be used in the food and pharmaceutical industries. The subject merchandise is not used for any of the purposes provided for in the EN to 32.06. Finally, the subject merchandise is not used as luminophores and therefore is also not classifiable in the latter part of heading 3206, HTSUS. Accordingly, heading 3206, HTSUS, is inapplicable to the subject merchandise.
Finally, we must consider classification in heading 3824, HTSUS, which provides for “[p]repared 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.” Note 1(b) to Chapter 38, HTSUS, provides that the chapter does not cover “[m]ixtures of chemicals with foodstuffs or other substances with nutritive value, of a kind used in the preparation of human foodstuffs (generally, heading 2106).” Phycocyanin (spirulina extract) is described by Willson and some scientific articles as having a variety of potential health effects, such as its anti-inflammatory, anti-oxidant, and anti-cancer effects, however, while phycocyanin’s pigment and food coloring properties are clear, its nutritive value is not. Therefore, when mixed with the trehalose and sodium citrate, the phycocyanin does not preclude the completed product from classification in heading 3824, HTSUS. The subject merchandise is classified in heading 3824, HTSUS, and specifically, in subheading 3824.99.92, HTSUS, which provides for “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: Other: Other: Other: Other: Other: Other.”
HOLDING:
Under the authority of GRI 1 and 6, the CA2786 Spirulina Blue Colour is classified under heading 3824, HTSUS, specifically, in subheading 3824.99.92, HTSUS, which provides for “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: Other: Other: Other: Other: Other: Other.” The 2020 column one, general rate of duty is 5 percent ad valorem.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at https://hts.usitc.gov/current.
You are to mail this decision to the requester no later than 60 days from the date of the decision. At that time, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Acting Director
Commercial and Trade Facilitation Division