CLA-2 RR:TC:FC 958922 ALS
Mr. Daniel D. Anderson
Operations Consultant
International Dairy Queen, Inc.
7505 Metro Blvd.
Minneapolis, MN 55439
RE: Frozen Reduced Fat Ice Cream
Dear Mr. Anderson:
This is reference to your request for a binding
classification ruling regarding the subject product.
FACTS:
The instant product, referred to as reduced fat ice cream,
contains milk fat, nonfat milk solids, sugar, corn syrup, mono
and diglycerides, guar gum, carrageenan, natural and artificial
flavor, and artificial colors. It contains 5 percent milk fat,
12.50 percent nonfat milk solids, 15 percent sweetener solids,
and .50 percent stabilizer solids. The product is stated to meet
the U.S. Food and Drug Administration (FDA) regulations
promulgated to meet the Nutrition Labeling and Education Act of
1990 (NLEA) and is classified by the general standard "reduced
fat ice cream." It is also stated that the product meets the FDA
requirements contained in the regulations of that agency in title
21, Code of Federal Regulations, sections 101.62 and 135.110 (21
CFR 101.62. 135.110).
ISSUE:
What is the classification of this product under the
Harmonized Tariff Schedule of the United States (HTSUSA)?
- 2 -
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determination first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the goods
and if the headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
In considering this matter we noted that there are a variety
of different dairy products on the market with varying degrees of
milk. Some of these products are considered ice cream while
others are not. These products are frozen and are ready for
consumption. We have previously noted that the term "ice cream"
does not include all frozen dessert products containing dairy
ingredients, nor does it include all products containing ice
cream. The range of milk solids in these products range from
substantial to minimal.
The Explanatory Notes to the Harmonized System (EN), which
represents the view of the international classification experts,
notes that heading 21.05 covers ice cream which is usually
prepared with a basis of milk or cream, and other edible ice, but
that it excludes mixes and constituents. The EN, however, do not
contain a specific description of the term "ice cream."
We, therefore, consulted Part 135 of the FDA Regulations.
These regulations, although not binding for the purposes of
tariff classification under the HTSUSA, were consulted for
guidance purpose. We specifically noted section 135.110(a)(2) of
those regulations provides that "Ice cream contains not less than
10 percent milkfat, nor less than 10 percent nonfat milk
solids,..." The instant product, which contains only 5 percent
milkfat, does not meet that definition.
We next consulted section 101.62 of the FDA Regulations and
noted that food which contains "at least 25 percent less fat per
reference amount customarily consumed than an appropriate
reference food..." may have the terms "reduced fat," "reduced in
fat," etc. on the label. According to section 101.13(j)(1)
"{T}hese statements shall be known as "relative claims..."
Based on our analysis of these regulations, we concluded
that they permitted a dairy product which did not have the
minimum 10 percent milkfat, to be labeled and marketed as - 3 -
"reduced fat ice cream." The regulations in Part 101 of the FDA
Regulations do not alter the definition of ice cream contained in
Part 135 of the FDA Regulations. The former regulations deal
only with labeling claims and permit a dairy product to be
labeled as previously noted. They do not permit a dairy product
which does not meet the minimum specification in section 135.110,
FDA Regulations, to be called "ice cream." Further, in
consulting Grolier's Multimedia Encyclopedia (1994), we noted
that such source confirms that the FDA "...requires that ice
cream contain at least 10% milk fat by weight."
We next consulted section 135.120, FDA Regulations, which
describes "ice milk." That section provides that this dairy
product must comply with all the provisions of section 135.110,
FDA Regulations, except, as herein pertinent, that its content of
milkfat was less that 7 percent but more than 2 percent. This is
confirmed by the aforementioned encyclopedia. We were unable to
establish that a dairy product which contained less than the
minimum standard for milkfat is considered "ice cream" although
it may be marketed as "reduced fat ice cream."
In considering this matter we noted that the milkfat content
of ice creams may differ, with economy ice cream containing a
lower percentage of milkfats and a higher quality ice cream
containing a higher percentage of milkfats. However, we
concluded that the dairy product known as "ice cream", without
any qualifying terms, must contain a recognized minimum milkfat
percentage and that the instant product, which contains 50
percent less than such amount, does not meet that requirement.
The fact that the product is labeled "reduced fat ice cream",
indicating a minimum milkfat reduction of 25 percent, confirms
that it contains less than the required minimum.
HOLDING:
A dairy product containing 5 percent milkfat is not ice
cream for tariff purposes and is, therefore, classifiable under
subheading 2105.00.3000, HTSUSA. That subheading covers "Ice
cream and other edible ice, whether or not containing cocoa:
Other: Dairy products described in additional U.S. note 10 to
chapter 4 (HTSUSA) and entered pursuant to its provisions."
(emphasis added). Merchandise so classified is subject to a
general rate of duty of 20 percent ad valorem and is further
subject to certain quantitative limitations. Such merchandise
not qualifying for admission under the referenced subheading
would be classified under the immediately subsequent "Other" - 4 -
provision, subheading 2105.00.4000, HTSUSA. Such merchandise is
subject to a general rate of duty of 56.1› per kilogram plus 19
percent ad valorem and is further subject to certain additional
duties, as specified in chapter 99, HTSUSA.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division