CLA-2 RR:CR:GC 961915ptl
Mr. Richard J. Salamone
BASF Corporation
3000 Continental Drive - North
Mount Olive, NJ 07828-1234
RE: Nutritional premixes DC Ref. 1367 and 1368; NY 815648 revoked.
Dear Mr. Salamone:
In New York Ruling Letter (NY) 815648, issued to you on November 3, 1995, Customs ruled that certain nutritional premixes identified as DC Ref. 1367 and 1368 were classified in subheading 3003.90.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Medicaments ... 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: Other.” Customs has reviewed that ruling and determined that classification to be incorrect. Therefore, this ruling revokes NY 815648 and sets forth the correct classification of the nutritional premixes.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American
Free Trade Agreement Implementation Act (Pub.L. 103-182, 107 Stat. 2057), notice of the proposed revocation of NY 815648, was published on April 21, 1999, in the Customs Bulletin, Volume 33, No. 16. This letter reflects issues raised in the only comment received in response to the notice.
FACTS:
The merchandise is identified as nutritional premixes DC Ref. 1367 and 1368. Both products are water-dispersible mixtures of vitamins and a single mineral, in powder form, which serve as a source of multiple vitamins. Both products are in bulk form. The vitamins are blended with a water-soluble carrier (carbohydrate: maltodextrin) to provide a final product suitable for addition to human food. No health benefit claims are made for the product. The products under consideration are intended to be used as additives to human food to provide vitamin supplements to the diet.
In your initial request to Customs for a classification ruling dated October 5, 1995, you proposed that the goods be classified in subheading 2936.90.0000, HTSUS, which provides for “Provitamins and vitamins, ..., intermixtures of the foregoing, whether or not in any solvent; other.”
ISSUE:
What is the classification of nutritional premix 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:
2106 Food preparations not elsewhere specified or included:
Other:
Other:
Other:
Other:
Other:
2106.90.99 Other:
2106.90.9998 Other.
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:
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:
3003.90.0000 Other.
In your original classification request, you suggest that heading 2936, HTSUS, was the correct classification for this product. At first reading, the heading appears to cover the mixtures of vitamins we are considering. However, both the chapter notes and the ENs justify exclusion of the article. Chapter Note 1(a) states that the headings of the chapter apply only to “separate chemically defined organic compounds”. The vitamins are organic compounds, but the minerals which have been mixed with them are not. By virtue of this Note, the vitamin/mineral mixture is excluded from classification in chapter 29, HTSUS. Even if the mixture had not contained added minerals, we would have reached the same result because the EN to 29.36 states, in pertinent part, that the heading includes: (c) Intermixtures of vitamins, ... provided that the quantity added or the processing in no case exceeds that necessary for their preservation or transport and that the addition or processing does not alter the character of the basic product and render it particularly suitable for specific use rather than for general use. The subject product cannot be classified in heading 2936, HTSUS, because it has been processed far beyond that which is necessary for preservation or transportation. Additionally, the precise formulae in which the various vitamins in the products have been mixed has rendered the products suitable for specific use as a dietary supplement rather than general use.
The blend of vitamins and minerals is designed as a dietary supplement for general maintenance of health and well-being. There are no claims or indications of usage for the product’s being intended for the treatment of any specific condition or ailment. The product is intended to be added to food, not taken to cure or prevent any particular ailment or condition. The concentrations of vitamins and minerals in the mixture are comparatively low and do not reach levels found in therapeutic dosages which are usually only taken under the supervision and direction of a physician.
Chapter 30, HTSUS, covers pharmaceutical products. Of special significance to the instant analysis is Note 1(a) to chapter 30, which states: “This chapter does not cover: (a) Foods or beverages (such as dietetic, diabetic or fortified foods, food supplements, tonic beverages and mineral waters) (section IV)”. Chapter notes are part of the legal text of the HTSUS, and are to be considered statutory provisions of law for all purposes. Because the chapter notes are mandatory authority for classification, merchandise described by Note 1(a) to chapter 30 is excluded from classification in that chapter.
The exclusion of the instant products from chapter 30 is reinforced by the ENs to both headings 30.03 and 30.04 which provide that:
Further this heading excludes food supplements containing vitamins or mineral salts which are put up for the purpose of maintaining health or well being but have no indication as to use for the prevention or treatment of any disease or ailment. These products which are usually in liquid form but may also be put up in powder or tablet form, are generally classified in heading 21.06 or Chapter 22.
Inasmuch as this product is excluded from chapter 30, we turn to the alternative provisions directed by the ENs. Chapter 22, HTSUS, covers Beverages, Spirits and Vinegar, which are all liquids. Because the product is in dry powder form, Chapter 22 is inappropriate.
Chapter 21 covers miscellaneous edible preparations. As the product is a food preparation and has not been found to be specified or included elsewhere in the HTSUS, a heading in chapter 21 would need to be given consideration as a potential heading for classification. The only heading in chapter 21 that appears to provide for the product is heading 2106 which provides for "food preparations not elsewhere specified or included." Guidance concerning the coverage of heading 2106 can be found in the ENs to this heading:
(16) Preparations, often referred to as food supplements, based on extracts from plants, fruit concentrates, honey, fructose, etc. and containing added vitamins and sometimes minute quantities of iron compounds. These preparations are often put up in packagings with indications that they maintain general health or well being. Similar preparations, however, intended for the prevention or treatment of diseases or ailments are excluded (heading 30.03 or 30.04).
In fact, this EN is consistent with the previously discussed EN to heading 3003, wherein heading 2106 is specifically identified as a potential heading for the classification of vitamin or mineral salt fortified, liquid foods. In the instant case, the product clearly fits the above description. We conclude that the multi-vitamin food supplement nutritional premixes are properly classified as food preparations in heading 2106, HTSUS.
HOLDING:
Nutritional premixes DC Ref. 1367 and 1368, water-dispersible mixtures of vitamins, in bulk powder form, which are blended with a water-soluble carrier (carbohydrate: maltodextrin) to provide a final product suitable for addition to human food to serve as a source of multiple vitamins are classified in subheading 2106.90.9998, HTSUS, the provision for food preparations not elsewhere specified or included: other: other: other: other: other: other: other.
NY 815648 is revoked.
Sincerely,
John Durant, Director
Commercial Rulings Division