CLA-2 CO:R:C:F 954994 EAB
New York Seaport
6 World Trade Center
New York, New York 10048
Re: Suitable for medicinal use; HRL 952892; HRL 086920; salicylic
acid; U.S.P. grade
In HQ 952892 (May 10, 1993) Customs held that salicylic acid
that did not meet the United States Pharmacopoeia (U.S.P.)
standards was classifiable under subheading 2918.21.5000,
Harmonized Tariff Schedule of the United States Annotated (HTSUSA),
a provision for salicylic acid other than that suitable for
medicinal use, rather than under subheading 2918.21.1000, HTSUSA,
a provision for salicylic acid that is suitable for medicinal use.
This Office has been asked to examine HQ 952892, supra, with
particular attention being given to the phrase "suitable for
medicinal use" viz-a-viz the U.S.P. We take this opportunity to do
so with respect to the separate chemically defined compound
Salicylic acid of purity or grade less than the U.S.P.
standard has been imported into the United States.
When is salicylic acid "suitable for medicinal use" for tariff
classification purposes under the HTSUSA?
LAW AND ANALYSIS:
In HQ 952892, supra, Customs found that salicylic acid that
has a melting point lower than the melting point of U.S.P. grade
salicylic acid was not "suitable for medicinal use."
In HQ 086920 (July 17, 1990), Customs informed a member of the
public requesting clarification of the meaning of that phrase that
"There is * * * no compelling reason potentially to expand the
scope of 'suitable for medicinal use' to include all substances
that are of U.S.P. grade."
With the exception of actual use provisions, classification is
based upon the condition of the goods as imported and not upon the
use of the goods after importation. Therefore, we take the
foregoing statements to mean that salicylic acid that does not meet
the U.S.P. standard is not suitable for medicinal use and is not
classifiable under subheading 2819.21.5000, HTSUSA. Salicylic acid
that meets or exceeds the U.S.P. standard may not necessarily be
suitable for medicinal use and is not per se classifiable under
subheading 2819.21.1000, HTSUSA.
We have considered counsel's arguments presented in a meeting
at Headquarters, especially the claim that further processing
requirements after importation are not relevant to whether a basic
product is "suitable for medicinal use." In the context of HRL
952892, the salicylic acid was exported to Mexico to be marketed to
the public as aspirin in Mexico. In this case the product was not
salable as pharmaceutical grade salicylic acid in the U.S. The
record does not reflect whether or not this is the case in Mexico.
The type of further processing has the greatest relevance here,
because some further processing steps would be immaterial to the
question of whether a product would be suitable for medicinal use.
For example, a product that is suitable for medicinal use may
require such further steps as tabletting or dividing into measured
doses to be put up for retail sale. Also, for example, the
addition of a buffering agent to acetylsalicylic acid that already
met U.S.P. standards would not be an indication that the basic
product was not suitable for medicinal use.
Counsel further advanced the position that any amount of
further processing might be done to a product to prepare it for
medicinal use, so long as the underlying substance will, with some
alteration, ultimately be medicinally used. Counsel's reliance on
a case, decided in 1945 by our former appeals court, under an act
since twice superseded, appears to be misplaced. There, the court
decided that a certain female sex hormone, derived from a pregnant
mare's urine, possessed a medicinal property and was chiefly used
for medicinal purposes, thereby securing its classification as a
"drug" in Paragraph 34 of the 1930 Act. The only point of
correspondence in that case with the one at hand is that the
government's unsuccessful position in that case was that Paragraph
34 required the product to be ready for medicinal use without
further processing and that is what counsel interprets the
government's position to be in this case. As indicated above,
however, that is not the government's position here, because the
presence of further processing by itself does not settle the
"suitable for medicinal use" issue.
There is no dispute that the substance under consideration is
classified at the 6-digit level under "[S]alicylic acid and its
salts", subheading 2918.21. However, under the protestant's
reading of the statute, all salicylic acid and its salts would be
classified under 2918.21.10 as suitable for medicinal use, if any
amount of further processing may be undertaken after importation to
disclose the true identity of the substance. This reading of the
"suitable for" subheading would rob the "other" subheading of any
meaning and defy common logic.
With regard to the sampling question raised, Customs accepts
the sample provided by the importer as being adequate and
representative of the product in the entry under protest.
Salicylic acid with a melting point lower than that of U.S.P.
grade salicylic acid is not "suitable for medicinal use."
Salicylic acid that meets or exceeds the U.S.P. standard and
is suitable for medicinal use in its condition as imported is
classifiable under subheading 2918.21.1000, HTSUSA.
John Durant, Director
Commercial Rulings Division