CLA-2 RR:CR:GC 962687ptl
Mr. Warren E. Coe
7575 E. Fulton Road
Ada, MI 49355
RE: Acerola Cherry Concentrate Powder, (NF9716Z).
Dear Mr. Coe:
This is in response to your request for a ruling on the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of Acerola Cherry Concentrate powder submitted to the Customs National Commodity Specialist Division on August 28, December 11, 1998, and February 2, 1999. Your letters were forwarded to this office for response. In preparing this ruling, we have also considered the letter of January 24, 2000 from Bruce E. Benedict.
Acerola cherry concentrate powder (NF9716Z) is produced from the juice of Acerola cherries. The powder is produced by washing and milling the cherries, during which time the stems, skins and excess pulp are removed. During the water extraction process, a varying amount of maltodextrin (25-30 %) is added, as necessary, as a carrier to improve filtration and prevent the material from sticking to the mixing equipment. A trace amount of lime (calcium hydroxide) is added during the processing to neutralize the pH and allow the Vitamin C potency to meet the final requirements of 15%. The liquid material is then spray dried to produce powdered Acerola concentrate which is imported in bulk form. After importation the concentrate will be mixed with other materials to form various forms of Vitamin C supplements.
You suggest that the product be classified either in heading 2936, HTSUS, which provides for provitamins and vitamins, natural or reproduced by synthesis, or in subheading 1106.30.2000, HTSUS, which provides for flour, meal and powder ... of the product of chapter 8.
What is the classification of Acerola concentrate powder (NF9716Z) containing lime and an anticaking agent, imported in bulk form?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all 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 in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS headings under consideration are as follows:
1106 Flour, meal and powder of the dried leguminous vegetables of heading 0713, of sago or of roots or tubers of heading 0714 or of the products of chapter 8:
* * *
1106.30 Of the products of chapter 8:
* * *
2009 Fruit juices (including grape must) and vegetable juices, not fortified with vitamins or minerals, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter:
* * *
2009.80 Juice of any other single fruit or vegetable:
2009.80.6010 Cherry juice.
2106 Food preparations not elsewhere specified or included:
2936 Provitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or not in any solvent:
* * *
Vitamins and their derivatives, unmixed:
2936.27.0000 Vitamin C (Ascorbic acid) and its derivatives.
* * *
2936.90.0000 Other, including natural concentrates.
3003 Medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of two or more constituents which have been mixed together for therapeutic or prophylactic uses, not put up in measured doses or in forms or packings for retail sale:
* * *
You suggest that the goods be classified in subheading 2936.27.0000, HTSUS, which provides for vitamin C and its derivatives. As stated above, we must refer to chapter notes when classifying goods. Chapter note 1(a) to Chapter 29 states that the headings of that chapter apply only to “separate chemically defined organic compounds.” The Acerola concentrate powder is the dried concentrated juice of the fruit to which maltodextrin and calcium hydroxide have been added. Although it is high in Vitamin C, the product is not a “separate, chemically defined organic compound” vitamin described by the chapter note. Therefore, the product cannot be classified in subheading 2936.27.0000, HTSUS.
For the same reason, the product is not eligible for classification in subheading 2936.90 which covers natural concentrates of vitamins. The products covered by this subheading have been isolated from their source by one or more chemical or physical processes and the resulting product is an isolated substance. Both the Chapter notes and the ENs refer to concentrates which have been isolated from their (vegetable or animal) sources by one or more chemical or physical methods such as distillation, saponification, crystallization, acylation, etc. to form the desired products. The Acerola concentrate powder is not a true extract or vitamin concentrate, but rather the dried juice of the Acerola cherry to which maltodextrin and calcium hydroxide have been added.
You also suggest classification under subheading 1106.30.4000, HTSUS. However, that subheading provides for flour, meal and powder of products of chapter 8. EN 11.06 (C) states that the subheading covers “[T]he principal fruits or nuts of Chapter 8 which are made into flours, meals or powders are chestnuts, almonds, dates, bananas, coconuts and tamarinds. The heading also includes flour, meal and powder of peel of fruits.” This language is clear that what must be turned into the flour is the flesh and/or peel of the fruit. The product under consideration is derived from the juice of the fruit and thus, is not eligible for classification in this subheading.
The ENs to heading 3003, HTSUS, state, in part, that “This heading covers medicinal preparations for use in the internal or external treatment or prevention of human or animal ailments. These preparations are obtained by mixing together two or more substances.” While it is not disputed that the product contains a significant amount of Vitamin C, and you state that it is to be used in the manufacture of vitamins, the product is not formulated for the treatment of any medical condition. In its imported condition, the product is not intended for therapeutic or prophylactic uses. Consequently, it cannot be classified in heading 3003, HTSUS.
Although fruit juices may be concentrated or in powder form and still be classified in heading 2009, HTSUS, there are strict limitations on the types of substances which may be added to the juice.
The ENs to chapter 20 indicate the types of substances which may be added to juices of heading 2009:
The juices of this heading may be concentrated (whether or not frozen) or in the form of crystals or powder provided, in the latter case, that they are entirely or almost entirely soluble in water. Such products are usually obtained by processes involving either heat (whether or not in a vacuum) or cold (lyophilisation).
Provided they retain their original character, the fruit or vegetable juices of this heading may contain substances of the kinds listed below, whether these result from the manufacturing process or have been added separately:
(2) Other sweetening agents, natural or synthetic, provided that the quantity added does not exceed that necessary for normal sweetening purposes and that the juices otherwise qualify for this heading, in particular as regards the balance of the different constituents (see Item (4) below).
(3) Products added to preserve the juice or to prevent fermentation (e.g., sulphur dioxide, carbon dioxide, enzymes).
(4) Standardising agents (e.g., citric acid, tartaric acid) and products added to restore constituents destroyed or damaged during the manufacturing process (e.g., vitamins, colouring matter), or to “fix” the flavour (e.g., sorbitol added to powdered or crystalline citrus fruit juices). However, the heading excludes fruit juices in which one of the constituents (citric acid, essential oil extracted from the fruit, etc.) has been added in such quantity that the balance of the different constituents as found in the natural juice is clearly upset; in such case the product has lost its original character.
The vegetable juices of this heading may also contain added salt (sodium chloride), spices or flavouring substances.
Similarly, intermixtures of the juices of fruits or vegetables of the same or different types remain classified in this heading, as do reconstituted juices (i.e., products obtained by the addition, to the concentrated juice, of a quantity of water not exceeding that contained in similar nonconcentrated juices of normal composition).
In addition to requiring that the juices “retain their original character”, the ENs are very specific about not only what may be added to a juice, but also the reason for its being added. See HQ 955893, dated June 6, 1994, which held that “sparkling apple juice” was not classified as a juice because the addition of carbon dioxide did not “restore a constituent that was destroyed or damaged during a manufacturing process, and it does not prevent fermentation of the juice, then it is reasonable to conclude that the addition is for other reasons.”
Maltodextrin is added to the Acerola concentrate powder as an anticaking agent in such quantities that it constitutes 25 – 30 % of the product. The ENS list four types of substances which may be added to juices. Maltodextrin does not fall within any of these types. It is not added as a sugar or sweetener. It is not added as a preservative, and it does not prevent fermentation. It is not a standardizing agent, and is not added to replace a lost constituent. Maltodextrin is not normally found in juices. Its addition, especially in such quantities, causes the juice to lose its original character. Therefore, the Acerola concentrate cannot be classified as a juice of chapter 20.
The Acerola concentrate powder (NF9716Z) will be used in the production of human food supplements. Because the product cannot be classified in a more specific heading, it is classified in heading 2106.90.9998, HTSUS, as a food preparation, not elsewhere specified or included, ... other. See HQ 962686, dated February 4, 2000, for a similar ruling.
Acerola concentrate powder, (NF9716Z), containing an anticaking agent is classified in subheading 2106.90.9998, HTSUS, as a food preparation, not elsewhere specified or included, other, other, other, other, other, other, other.
John Durant, Director
Commercial Rulings Division