OT:RR:CTF:FTM H315436 MD

Ms. Misty Gibbins
Pacific Customs Brokers, Inc. 1400 A Street
Blaine, Washington 98230

RE: Tariff Classification of Organic Baby Foods; USMCA Dear Ms. Gibbins, This is in response to your request for a binding ruling, dated November 6, 2020, on behalf of your client, Baby Gourmet, concerning the tariff classification and eligibility of five varieties of organic baby foods 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 subject merchandise is described as five varieties of organic baby foods, manufactured in Canada. Specifically, the five varieties - "Coconut Kiwi Mangosteen," "Banana Fig Oatmeal," "Roasted Squash & Fruit Medley," "Juicy Pear and Garden Greens," and "Gingery Pear" - consist of a mix of fruit and/or vegetable purees, are packaged in 90-gram pouches, and are marketed towards infants of six months and older. According to attached supplements, the ingredient breakdown of each of the five varieties is as follows.

Coconut Kiwi Mangosteen contains approximately 57% organic apple puree, 27.58% organic banana puree, 6.83% organic kiwi puree, 2.96% organic coconut milk, 2.31% organic spinach puree, 2.29% organic mangosteen puree, 0.88% organic pre-cooked non-diastatic quinoa flour, and 0.15% lemon juice. The organic kiwi puree is a product of the United States, while the organic pre-cooked non-diastatic quinoa flour is a product of Canada. The ingredients of the Coconut Kiwi Mangosteen are as follows:

|Ingredient |Origin |HTSUS Classification | |Organic Apple Puree |Argentina |2007.99.481 | |Organic Banana Puree |Ecuador |2007.99.65 | |Organic Kiwi Puree |United States |2007.99.65 | |Organic Coconut Milk |Sri Lanka |2106.90.99 | |Organic Spinach Puree |Ecuador |2007.90.85 | |Organic Mangosteen Puree |Brazil |2007.99.65 | |Organic Pre-Cooked Non- Diastatic Quinoa |Canada |1102.90.60 | |Flour | | | |Lemon Juice |Argentina |2009.39.60 |

Banana Fig Oatmeal contains approximately 43% organic banana puree, 30.39% water, 18.14% organic apple puree, 2.45% organic fig slurry, 2.45% organic quick oats, 2.45% organic pre-cooked garbanzo bean flour, 1.1% lemon juice, and 0.02% organic vanilla. The organic fig slurry and organic vanilla are products of the United States, while the water, organic quick oats, and organic pre-cooked garbanzo bean flour are products of Canada. The ingredients of the Banana Fig Oatmeal are as follows:

|Ingredient |Origin |HTSUS Classification | |Organic Banana Puree |Ecuador |2007.99.65 | |Water |Canada |2201.10.00 | |Organic Apple Puree |Argentina |2007.99.48 | |Organic Fig Slurry |United States |2007.99.65 | |Organic Quick Oats |Canada |1904.20.00 | |Organic Pre-Cooked Garbanzo Bean Flour |Canada |1106.10.00 | |Lemon Juice |Argentina |2009.39.60 | |Organic Vanilla |United States |1302.19.91 |

Roasted Squash & Fruit Medley contains approximately 60.46% organic apple puree, 19.97% organic pear puree, 10.38% organic butternut squash puree, 8.81% organic banana puree, 0.35% lemon juice, and 0.04% organic vanilla. The organic butternut squash puree and the organic vanilla are products of the United States. The ingredients of the Roasted Squash & Fruit Medley are as follows:

|Ingredient |Origin |HTSUS Classification | |Organic Apple Puree |Argentina |2007.99.48 | |Organic Pear Puree |Argentina |2007.10.00 |

1 You state that the organic apple puree from Argentina is classified in subheading 2007.10.00, HTSUS. The correct classification of this ingredient is in subheading 2007.99.48, HTSUS. You also state that the organic banana puree from Ecuador is classified in subheading 2008.99.13, HTSUS. The correct classification of this ingredient is in subheading 2007.99.65, HTSUS. |Organic Butternut Squash Puree |United States |2004.90.85 | |Organic Banana Puree |Ecuador |2007.99.65 | |Lemon Juice |Argentina |2009.39.60 | |Organic Vanilla |United States |1302.19.91 |

Juicy Pear and Garden Greens contains approximately 94.45% organic pear puree, 3.11% organic broccoli puree, and 2.08% organic spinach puree. The ingredients of the Juicy Pear and Garden Greens are as follows:

|Ingredients |Origin |HTSUS Classification | |Organic Pear Puree |Argentina |2007.99.48 | |Organic Broccoli Puree |Ecuador |2006.00.90 | |Organic Spinach Puree |Ecuador |2004.90.85 |

Gingery Pear consists of approximately 47% organic pear puree, 46.37% organic banana puree, 1.70% organic spinach puree, 1.27% organic mangosteen puree, 0.85% organic pre- cooked millet flour, 0.6% lemon juice, and 0.51% organic ginger puree. The organic pre-cooked millet flour is a product of Canada. The ingredients of the Gingery Pear are as follows:

|Ingredients |Origin |HTSUS Classification | |Organic Pear Puree |Argentina |2007.99.48 | |Organic Banana Puree |Ecuador |2007.99.65 | |Organic Spinach Puree |Ecuador |2007.90.85 | |Organic Mangosteen Puree |Brazil |2007.99.65 | |Organic Pre-Cooked Millet Flour |Canada |1102.90.60 | |Lemon Juice |Argentina |2009.39.60 | |Organic Ginger Puree |China |0910.12.00 |

You state that all ingredients for each of the five aforementioned products will be shipped to Canada, where they will be processed into organic baby foods. This Canadian processing includes blending, homogenizing, and pasteurizing the ingredients into the ultimate products. The organic baby foods are then hot-filled into 90-gram net weight, laminated pouches, which are sealed with plastic twist-off lids. These pouches are cooled and subsequently packaged for individual retail sale.

ISSUES:

1) What is/are the tariff classification(s) of the organic baby foods?

2) Are the organic baby foods eligible for preferential tariff treatment under the USMCA? LAW AND ANALYSIS:

1) Tariff Classification

Classification under the HTSUS is made in accordance with the General Rules of Interpretation ("GRIs"). 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 require, the remaining GRIs 2 through 6 may then be applied in order.

The 2021 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:

Other, including mixtures other than those of subheading 2008.19:

* * * 2008.97: Mixtures:

* * *

2008.97.10: In airtight containers and not containing apricots, citrus fruits, peaches or pears:

* * *

2008.97.1040: Other

* * *

2104: Soups and broths and preparations therefor; homogenized composite food preparations:

* * * 2104.20: Homogenized composite food preparations: * * *

2104.20.1000: Put up for retail sale as food suitable for infants or for dietetic purposes

* * * In addition, the Explanatory Notes ("ENs") to the Harmonized Commodity Description and Coding system represent the official interpretation of the tariff at the international level. 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 T.D. 89-90, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The ENs to heading 2008, in relevant part, are 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 the 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

* * *

The ENs to heading 2104, in relevant part, are as follows:

(B) Homogenized Composite Preparations

In accordance with Note 3 to this Chapter, the homogenized composite food preparations of this heading are those which consist of a finely homogenized mixture of two of 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 amounts 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 product as homogenized preparations.

Homogenized composite food preparations are generally used as food suitable for infants or young children and take the form on 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. The heading excludes homogenized composite food preparations which are put up otherwise than for retail sale as food suitable for infants or young children or dietetic purposes, or in containers of a net weight content exceeding 250 g. It also excludes preparations of this kind which consists of one basic ingredient such as meat, meat offal, fish, vegetable or fruit (generally Chapter 16 or 20), whether or not containing small quantities of any ingredients added for seasoning, preservation or for other purposes.

* * *

You contend that Coconut Kiwi Mangosteen, Roasted Squash & Fruit Medley, Juicy Pear and Garden Greens, and Gingery Pear are classified under subheading 2104.20.1000, HTSUSA, which provides for "Soups and broths and preparations therefor; homogenized composite food preparations: Homogenized composite food preparations: Put up for retail sale as food suitable for infants or for dietetic purposes." Note 3 to Chapter 21 ("Note 3"), HTSUS, 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 New York Ruling Letter ("NY") N147418, dated February 8, 2011, four products were submitted for tariff classification. Specifically, these products were described as "'baby food' composed of a mixture of fruit or fruit and vegetable purees, packed for retail sale in sealed plastic film pouched with a twist-off plastic cap/spout, containing 120 grams, net weight." Although the ruling could not provide a tariff classification for three of the products, due to a lack of information submitted, it did classify "Apple, Sweet Corn, and Carrot" under subheading 2104.20.0000, HTSUSA, "which provides for homogenized composite food preparations." The component ingredients of the product were "60 percent apple puree, 25 percent corn puree, 15 percent carrot puree, and a trace amount of malic acid." As with the products here, the "Apple, Sweet Corn, and Carrot" was made "by blending the fruit and vegetable ingredients, pasteurizing, hot filling into pouches, sealing, cooling, and packing for retail sale."

In NY N177715, dated August 15, 2011, eight "baby food products" were submitted for tariff classification and eligibility for preferential tariff treatment under the North American Free Trade Agreement ("NAFTA"). The eight baby food products, which were described as "put up in airtight 'cheerpack' pouches, were described [as follows]:" Pear Mango Squash, Pear Banana Raspberry, Apple Mango Carrot, Banana Apple Strawberry, Peach Apple Banana, Apple Peach Strawberry, Banana Pear Sweet Potatoes, and Apple Sweet Potato Pineapple. Each of the eight baby foods was either a mixture of fruit purees/concentrates or fruit and vegetable purees/concentrates with water. The Banana Apple Strawberry, and Apple Sweet Potato Pineapple were classified under subheading 2008.92.1040, HTSUSA, and the Pear Banana Raspberry, Peach Apple Banana, Apple Peach Strawberry, and Banana Pear Sweet Potatoes were classified under subheading 2008.92.9094, HTSUSA. In contrast, Pear Mango Squash and Apple Mango Carrot - mixtures of fruit and vegetable purees/concentrates - were classified under subheading 2104.20.0000, HTSUSA, which provided for "homogenized composite food preparations."

In the instant case, while their specific ingredients differ, each of the organic baby foods are a mixture of fruit and/or vegetable purees, described as "of a[] thick applesauce consistency," packaged for individual sale in 90-gram units, and are marketed towards infants six months or older. This is supported by statements on the "Baby Gourmet" website, which contains a landing page where an infant is consuming the product in a high-chair, links to social media containing similar advertising photos, product pages detailing each product as either for "6 months +" or "7 months +", and product reviews with a majority stating how a child under the age of 1 year reacted to the product.2

The Coconut Kiwi Mangosteen eight component ingredients: organic apple puree, organic banana puree, organic kiwi puree, organic coconut milk, organic spinach puree, organic mangosteen puree, organic pre-cooked non-diastatic quinoa flour, and lemon juice. Manufacture of the Coconut Kiwi Mangosteen consists of the blending, homogenization, and pasteurization of the component ingredients. The resulting product is then hot-filled into 90-gram net weight, laminated PET12/AL9/PE90 pouches, sealed with a plastic twist-off lid, and cooled. These pouches are then labelled and packaged for individual sale, marketed as organic baby foods. As a product consisting of more than two basic ingredients, put up for retail sale as food suitable for infants or young children of for dietetic purposes, in containers of a net weight content not exceeding 250 grams, the Coconut Kiwi Mangosteen is properly classified as a homogenized composite food preparation under subheading 2104.20, HTSUS. Specifically, the Coconut Kiwi Mangosteen is classifiable under subheading 2104.20.1000, HTSUSA, which provides for "Soups and broths and preparations therefor; homogenized composite food preparations: Homogenized composite food preparations: Put up for retail sale as food suitable for infants or for dietetic purposes."

Similarly, the Roasted Squash & Fruit Medley, Juicy Pear and Garden Greens, and Gingery Pear are also classified under subheading 2104.20.1000, HTSUSA. Although each contain some unique component ingredients, these are limited to derivations of vegetables, fruits, starch, and/or flavoring. For each of the organic baby foods, the processing of these ingredients results in a "finely homogenized mixture of two or more basic ingredients such as... vegetables or fruit," as described within the ENs to heading 2104, HTSUS. As with the Coconut Kiwi Mangosteen, these homogenized composite food preparations are hot-filled into 90-gram net weight, laminated PET12/AL9/PE90 pouches, sealed with a plastic twist-off lid, and cooled. These pouches are then labelled and packaged for individual sale, marketed as organic baby foods.

2 See Baby Gourmet, at http://www.babygourmet.com (last visited March 23, 2021).

In contrast, the Banana Fig Oatmeal is excluded from classification under subheading 2104.20.1000, HTSUSA. The Banana Fig Oatmeal consists of eight ingredients: organic banana puree, water, organic apple puree, organic fig slurry, organic quick oats, organic pre-cooked garbanzo bean flour, lemon juice, and organic vanilla. Unlike the other organic baby foods, the Banana Fig Oatmeal is not a "finely homogenized mixture of two of more basic ingredients such as meat, fish, vegetables or fruit." Rather, the Banana Fig Oatmeal is a finely homogenized mixture of a sole basic ingredient - fruits.

As the ENs to heading 2104 specifically exclude "preparations of this kind which consists of one basic ingredient such as meat, meat offal, fish, vegetable or fruit (generally Chapter 16 or 20), whether or not containing small quantities of any ingredients added for seasoning, preservation or for other purposes," the Banana Fig Oatmeal is classified elsewhere. Specifically, we classify the Banana Fig Oatmeal under subheading 2008.97.1040, HTSUSA, which provided for "Fruits, 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."

In sum, the organic baby foods here are properly classified under either subheading 2008.97.1040, HTSUSA, or subheading 2104.20.1000, HTSUSA. Whereas Banana Fig Oatmeal is classified under the former, the remaining organic baby foods - Coconut Kiwi Mangosteen, Roasted Squash & Fruit Medley, Juicy Pear and Garden Greens, and Gingery Pear - are classified as the latter.

2) 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 United States Congress with the enactment of the USMCA Implementation Act, Pub. L. 116-113, 134 Stat. 11, 14 (19 U.S.C. 4511(a)) on January 29, 2020. 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 the purposes of the USMCA. GN 11(b) states, in relevant part:

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 (I) 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 -

i) The good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries;

ii) The good is a good produced entirely in the territory of one or more USMCA countries, exclusively from originating materials;

iii) The good is a good produced entirely in the territory of one or USMCA countries using non-originating materials, if the good satisfies all applicable requirements set forth in this note (including the provisions of subdivision (o));

* * *

Since the organic baby foods contain 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 pursuant to GN 11(b)(ii). Thus, we must determine whether the organic baby foods are eligible for preferential tariff treatment under GN 11(b)(iii).

For Banana Fig Oatmeal, which is classified under subheading 2008.92.1040, HTSUSA, the applicable rule is GN 11(o)/20.3, HTSUS, which provides: "[a] change to subheadings 2008.19 through 2008.99 from any other chapter." Since the Banana Fig Oatmeal contains three non-originating ingredients classified in Chapter 20; specifically, Ecuadorian organic banana puree, Argentine organic apple puree, and Argentine lemon juice, the Banana Fig Puree does not meet the tariff shift rule. As such, the Banana Fig Oatmeal is not eligible for preferential tariff treatment under the USMCA.

The applicable rule for the Coconut Kiwi Mangosteen, Roasted Squash & Fruit Medley, Juicy Pear and Garden Greens, and Gingery Pear is GN 11(o)/21.9, HTSUS, which provides: "[a] change to heading 2104 from any other chapter." Since the non-originating ingredients in the Roasted Squash & Fruit Medley, Juicy Pear and Garden Greens, and Gingery Pear are all classified in a Chapter other than Chapter 21, the tariff shift rule is met. Accordingly, the Roasted Squash & Fruit Medley, Juicy Pear and Garden Greens, and Gingery Pear are eligible for preferential tariff treatment under the USMCA.

However, the Coconut Kiwi Mangosteen contains a non-originating ingredient, classified in Chapter 21, specifically, Sri Lankan organic coconut milk, which does not meet the tariff shift rule. The organic coconut milk represents less than 10% of the total cost of the Coconut Kiwi Mangosteen. The de minimis rule provided for in GN 11(e)(i), HTSUS, states as follows:

In general. Except as provided in subparagraphs (e)(ii) through (iv) below, a good that does not undergo a change in tariff classification or satisfy a regional value content requirement set forth in subdivision (o) of this note is an originating good if-

(A) [T]he value of all nonoriginating materials that are used in the production of this good, and do not undergo the applicable change in tariff classification set forth in subdivision (o) of this note -

1) [D]oes not exceed 10 percent of the transaction value of the good, adjusted to exclude any costs incurred in the international shipment of the good; or

2) [D]oes not exceed 10 percent of the total cost of the good

B) [T]he good meets all other applicable requirements of this note; and

C) [T]he value of such nonoriginating materials is included in the value of the nonoriginating materials for any applicable regional value content requirement for the good

Based on the information provided, the organic coconut milk represents approximately 1.07% of the total cost of Coconut Kiwi Mangosteen. Since the organic coconut milk does not exceed 10% of the total cost of the good, the de minimis requirement is satisfied and the Coconut Kiwi Mangosteen is eligible for preferential tariff treatment under the USMCA.

HOLDING:

By application of GRIs 1 and 6, Coconut Kiwi Mangosteen, Roasted Squash & Fruit Medley, Juicy Pear and Garden Greens, and Gingery Pear are all classified in subheading 2104.20.1000, HTSUSA, which provides for "Soups and broths and preparations therefor; homogenized composite food preparations: Homogenized composite food preparations: Put up for retail sale as food suitable for infants or for dietetic purposes." The column one, general rate of duty is 2.5% ad valorem.

By application of GRIs 1 and 6, Banana Fig Oatmeal is classified in subheading 2008.97.1040, HTSUSA, which provided for "Fruits, 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 column one, general rate of duty is 5.6% ad valorem.

Based on the information provided, the organic baby foods classified under 2104.20.1000, HTSUSA, are eligible for preferential tariff treatment under the USMCA. These are the Coconut Kiwi Mangosteen, Roasted Squash & Fruit Medley, Juicy Pear and Garden Greens, and Gingery Pear. The column one, special rate of duty is Free. On the same basis, the Banana Fig Oatmeal, classified in subheading 2008.97.1040, HTSUSA, is not eligible for preferential tariff treatment under the USMCA. The column one, general rate of duty is 5.6% ad valorem.

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
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