OT:RR:CTF:FTM H332382 KRM

Ms. Michelle Li
Thompson Hine, LLP
1919 M Street NW, Suite 700
Washington, D.C. 20036

RE: Tariff Classification of Caffeine Pouches

Dear Ms. Li,

This is in response to your request, dated March 1, 2023, requesting a binding ruling on behalf of your client, E-Alternative Solutions, LLC ("E-Alternative Solutions"), regarding the tariff classification of caffeine pouches under the Harmonized Tariff Schedule of the United States ("HTSUS"). Your client initially requested a binding tariff classification ruling from the National Commodity Specialist Division ("NCSD"). Additional information was requested, and the request was resubmitted in your letter dated May 4, 2023. Your request was forwarded to this office by the NCSD for a response. Within your request for a binding ruling, you asked that the percentages of ingredients by weight and cost submitted in connection with this request be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. 177.2(b)(7), your request for confidentiality is approved. The items specified by you will not be released to the public and will be withheld from the published version of this decision.

FACTS:

The merchandise under consideration is described as MOJO caffeine pouches. The products are a white powdery mixture in a small white rectangular pouch containing coffee-derived caffeine, microcrystalline cellulose, natural flavoring, sucralose, water, L-theanine, N-acetyl-L-tyrosine, sodium citrate, ginseng root extract, propylene glycol, niacin, elethero extract, rhodiola extract, yerba mat extract, pyridoxine HCl, and cyanocobalamin. Each pouch measures approximately 12 mm in length and 5 mm in width. The pouches contain 50 mg of caffeine that is water-extracted from coffee. The caffeine does not retain any of the flavor or color of coffee. The caffeine pouches are packaged in cylindrical cans that are 2.75 inches in diameter and 0.9375 inches in height. Each can contains 15 identical pouches.

The directions instruct the user to place the pouch between their gum and upper lip for approximately one hour. The ingredients are absorbed into the body via the oral mucosa (tissue in the cheek and gum), thereby entering the bloodstream without requiring the caffeine to be digested. The ingredients are not intended to be swallowed. The user is directed to dispose of the used pouch after a single use. The pouches are not meant to be swallowed, as they may pose a choking hazard.

The product is described as "balanced energy pouches" that are tobacco and nicotine free. The pouches are not marketed as a dietary supplement or food supplement. Rather, according to the requestor, the caffeine pouches are marketed as an energy product. Specifically, the product is offered as an alternative to caffeinated energy drinks and specialty coffee. Additionally, E-Alternative Solutions notes that convenience store chains and retailers will sell the pouches as energy products, and unlike tobacco products, there is no age or restricted access requirement.

In the ruling request, E-Alternative Solutions claims that the pouches are classified under subheading 2106.90.99, HTSUS, as food preparations not elsewhere specified or included.

ISSUE:

What is the tariff classification of the caffeine pouches at issue?

LAW AND ANALYSIS:

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 otherwise require, the remaining GRIs 2 through 6 may then be applied in order.

The 2023 HTSUS provisions under consideration are as follows:

2101: Extracts, essences and concentrates, of coffee, tea or mat, and preparations with a basis of these products or with a basis of coffee, tea or mat; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof:

* * * * *

2106: Food preparations not elsewhere specified or included:

* * * * *

The Harmonized Commodity Description and Coding System Explanatory Notes ("EN") constitute the official interpretation of the Harmonized System 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. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

EN 21.01 provides, in relevant part, that:

This heading covers:

1) Coffee extracts, essences and concentrates. These may be made from real coffee (whether or not caffeine has been removed) or from a mixture of real coffee and coffee substitutes in any proportion. They may be in liquid or powder form, usually highly concentrated. This group includes products known as instant coffee...

...

3) Preparations with a basis of the coffee, tea or mat extracts, essences or concentrates of paragraphs (1) and (2) above. These are preparations based on extracts, essences or concentrates of coffee, tea or mat (and not on coffee, tea or mat themselves), and include extracts with added starches or other carbohydrates.

4) Preparations with a basis of coffee, tea or mat. These preparations include, inter alia :

(a) "coffee pastes" consisting of mixtures of ground, roasted coffee with vegetable fats and sometimes other ingredients, and

(b) tea preparations consisting of a mixture of tea, milk powder and sugar.

* * * * *

EN 21.06 provides, in relevant part, that:

Provided that they are not covered by any other heading of the Nomenclature, this heading covers :

A) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption. ...

The heading includes, inter alia :

...

(16) Preparations, often referred to as food supplements or dietary supplements, consisting of, or based on, one or more vitamins, minerals, amino acids, concentrates, extracts, isolates or the like of substances found within foods, or synthetic versions of such substances, put up as a supplement to the normal diet. It includes such products whether or not also containing sweeteners, colours, flavours, odoriferous substances, carriers, fillers, stabilisers or other technical aids. Such products are often put up in packaging with indications that they maintain general health or well-being, improve athletic performance, prevent possible nutritional deficiencies or correct sub-optimal levels of nutrients.

These preparations do not contain a sufficient quantity of active ingredients to provide therapeutic or prophylactic effect against diseases or ailments other than the relevant nutritional deficiencies. Other preparations with a sufficient quantity of active ingredient to provide a therapeutic or prophylactic effect against a specific disease or ailment are excluded (heading 30.03 or 30.04).

* * * * *

Heading 2106 covers food preparations that are not elsewhere specified or included in the HTSUS. Therefore, before classifying the products in heading 2106, we must first determine whether they can be classified in any other heading. Heading 2101 covers preparations with a basis of the coffee extracts, essences, or concentrates. In the requestor's submission, E-Alternative Solutions claims that the subject pouches are not classified in heading 2101 because they do not contain any coffee, although the caffeine in the pouches is derived from coffee. The requestor suggests that the pouches should be classified under subheading 2106.90.99, as a food preparation. The requestor also notes that the pouches are for recreational use and intended to increase energy.

The ENs to heading 2101 provide for preparations based on extracts of coffee, tea or mat, with added starches or other carbohydrates. Generally, these preparations retain some nexus to coffee regardless of changes in the finished product's physical characteristics, such as preparations including instant coffee, which includes coffee that has been brewed and dehydrated, and coffee pastes. HQ 952589, dated June 10, 1993; See, e.g., HQ H308893, dated July 15, 2020 (noting that an instant coffee mix containing soluble coffee and sugar, a carbohydrate, is classifiable as a preparation based on extracts of coffee in heading 2101, HTSUS); see also NY K87929, dated August 5, 2004; HQ 952589, dated June 10, 1993.

While the caffeine pouches product is based on caffeine that is water-extracted from coffee, the coffee-derived caffeine is processed into an article that is not similar to instant coffee or liquid coffee extract but is an end product in itself. See, e.g., HQ 963167, dated May 9, 2000 (classifying herbal green tea microspheres under heading 2106, HTSUS, after determining that the microspheres may at one time have been tea leaves but have not been made from real tea, and that the tea leaves have been highly processed into an end product in itself). Additionally, the product contains amino acids, including L-theanine and N-acetyl-L-tyrosine, which are not added starches or carbohydrates. The product also contains yerba mat, which also provides caffeine and additional antioxidants, and rhodiola extract and ginseng root, which may increase energy and focus. See HQ H295066, dated June 28, 2019 (finding a "Thermo Action" capsule containing green tea extract and guarana is classified under heading 2106, HTSUS instead of heading 2101, HTSUS, because it contains other ingredients that are not "added starches or other carbohydrates"). As such, the subject merchandise is not classifiable in heading 2101, HTSUS.

In order for a product to be classified within heading 2106 as a "food preparation not otherwise specified," it must be a "preparation" that is "food." Preparation means "a substance specially prepared, or made up for its appropriate use or application, e.g. as food or medicine." See Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998) (quoting The Oxford English Dictionary 374 (2d. ed. 1989)).

Next, "food" specifies the type of "preparation" covered by heading 2106, HTSUS. See Mondelez Global LLC v. United States, 253 F.Supp. 3d 1329, 1333 (CIT 2017). The Court of International Trade ("CIT") noted that the "common meaning of 'food' is that of a substance that is intended to be ingested." Id. at 1335. A substance can be "'food' for tariff classification purposes even if they do not provide nutrition." Id. at 1336. However, a "preparation that itself is not ingested in the classic sense is nonetheless a food if its purpose is to impart flavor or nutrition into a substance that is ingested." Id. at 1335. In Mondelez Global LLC v. United States, the CIT examined a tariff classification dispute over gum base, a substance used in the manufacture of chewing gum, which lacked flavor, sweetener, and color, and was not intended to be ingested, eaten, or swallowed. Id. at 1331. Considering the heading under which the gum base should be classified, the CIT noted that the "gum base is not to be classified under heading 2106, HTSUS, unless like tea leaves or bouquet garni it is intended to leach flavor or any nutritive compounds it contains to be then ingested themselves." Id. at 1336. Here, the MOJO caffeine pouches include sucralose and natural flavorings that impart a sweet flavor when the pouches are placed against the oral mucosa. Unlike gum base, which is not flavored and is not an end product meant for human consumption, the MOJO caffeine pouches are a final product, used directly for human consumption, and impart flavoring and caffeine upon use.

When a tariff term is not defined in the HTSUS, it is well-settled that its definition is governed by "the term's correct meaning [which] is its common or dictionary meaning in the absence of evidence to the contrary." Airflow Technology, Inc. v. United States, 524 F.3d 1287, 1291 (Fed. Cir. 2008) (citing to Russell Stadelman & Co. v. United States, 242 F.3d 1044, 1048 (Fed. Cir. 2001); see also Kahrs Int'l, Inc. v. United States, 713 F.3d 640, 644 (Fed. Cir. 2013).

The Oxford English Dictionary defines "ingest" as "[t]o introduce into the stomach (or mouth)," or in the context of food as "to take in." See OED Online, Oxford University Press, March 2022, https://www.oed.com/view/Entry/95778 (last visited July 17, 2023). Similarly, the National Institute of Health's National Cancer Institute Dictionary of Cancer Terms defines ingestion as "[t]aking into the body by mouth." See National Institute of Health, National Cancer Institute Dictionary of Cancer Terms, Ingestion, at https://www.cancer.gov/publications/dictionaries/cancer-terms/def/ingestion (last visited July 17, 2023).

Additionally, the ENs to heading 2106, HTSUS, provide for preparations, based on extracts from, among others, plants, and containing mixtures of chemicals (organic acids, calcium salts, etc.). These products are often put up in packaging with indications that they maintain general health or well-being. The MOJO caffeine pouches are marketed as an "energy boosting experience" with "powerful adaptogens for added focus and balance." See Berry Mojo Pouches: 5-Can Bundle, Grab Mojo, https://grabmojo.com/berry-mojo-pouches-5-can-bundle/#product-fields (last visited Aug. 30, 2023). These pouches are based on caffeine extracted from coffee, a plant, along with several ingredients intended to improve the pouch's characteristics, such as: (1) microcrystalline cellulose, which functions as a texturizer, an anti-caking agent, an emulsifier and a bulking agent (see Compendium of Food Additive Specifications, Addendum 4, Microcrystalline cellulose, Food and Agric. Org. U.N. http://www.fao.org/docrep/W6355E/w6355e0l.htm (last visited Aug. 30, 2023)); (2) L-theanine, which may help increase focus and attention when paired with caffeine (see Here's What You Need to Know About L-Theanine, Clev. Clinic, https://health.clevelandclinic.org/l-theanine/ (last visited August 30, 2023)); (3) N-acetyl-L-tyrosine, which may help increase cognition and alertness (see Laura Steenbergen, et al., Tyrosine promotes cognitive flexibility: evidence from proactive vs. reactive control during task switching performance, 69 Neuropsychologia 50 (2015), https://pubmed.ncbi.nlm.nih.gov/25598314/ (last visited Aug. 30, 2023)); and (4) propylene glycol, which is used as a preservative, a flavor enhancer, an emulsifier, or a texturizer (see 21 C.F.R. 184.1666(c)). Although the product does not claim to be a food supplement or dietary supplement, the packaging indicates that the product is intended to improve wellbeing. For instance, the website promotes the product as "designed to heighten focus and mind-body balance." See Mint Mojo Pouches: 5-Can Bundle, Grab Mojo, https://grabmojo.com/mint-mojo-pouches-5-can-bundle/#product-description (last visited Aug. 30, 2023). Accordingly, the product is of the kind of preparations described in EN 21.06 and not more specifically classified elsewhere.

Upon review, we find that the Mojo caffeine pouches are ingested as a food preparation. Although the method of consumption is not ingestion in the classic sense as the pouches are not themselves swallowed or consumed as food, the pouches' ingredients are ingested by being placed in the mouth, which permits the caffeine, natural flavoring, and other ingredients to be absorbed through the oral mucosa. The pouches are specially prepared for the purpose of human consumption. While not gum, the pouches have similar ingredients and perform a similar function to a sugar-free chewing gum containing caffeine classified under 2106, HTSUS. See NY L81022, dated December 2, 2004. Additionally, the pouches are similar to an energy spray intended to provide individuals caffeine on the go, containing caffeine, n-acetyl-tyrosine, l-theanine, and flavor, among other ingredients, classified in subheading 2106, HTSUS, as a food preparation. See NY N321514, dated October 6, 2021. Therefore, the pouches meet the definition of a food preparation.

Based on the information provided, we find that the Mojo caffeine pouches are food preparations not elsewhere specified or included. As such, they are classified in subheading 2106.90.99, HTSUS.

HOLDING:

By application of GRIs 1 and 6, we find that the MOJO caffeine pouches product is classified under heading 2106, HTSUS, and specifically in subheading 2106.90.99, HTSUS, which provides for "Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other." The 2023 column one, general rate of duty is 6.4% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at https://hts.usitc.gov.

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 CBP 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 the goods are 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,


Sarah Kafka, Chief
Food, Textiles, and Marking Branch


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