CLA-2 OT:RR:CTF:TCM H243642 TNA
Robert J. Leo, Esq.
Meeks, Shappard, Leo, & Pillsbury
Attorneys At Law
570 Lexington Ave., 44th Floor
New York, NY 10022
RE: Tariff classification of two types of skin toner
Dear Mr. Leo:
This is in response to your request on behalf of your clients, Johnson & Johnson Consumer Companies, Inc. and Neutrogena Corporation (collectively “J & J Consumer”), submitted on April 10, 2013, to U.S. Customs and Border Protection (“CBP”), National Commodity Specialist Division (“NCSD”), for a binding ruling on the tariff classification of two types of skin toner under the Harmonized Tariff Schedule of the United States (“HTSUS”). Your ruling request, along with a sample of one of the products at issue, was forwarded to this office for a response.
FACTS:
The subject merchandise consists of two types of skin toner that can also be used to treat acne. The first, made by Johnson & Johnson, is called “Clean and Clear® Essentials” deep cleaning toner. It is a scented, blue, clear liquid that contains 0.5 percent salicylic acid. It is packaged for retail sale in eight fluid ounce (207 mL) bottles. Its other ingredients include water, alcohol, glycerin, isoteth-20, PEG-32, sodium citrate, fragrance, propylene glycol, dimethicone propyl PG-betaine, benzophenone-4, algae extract, aloe barbadensis leaf extract, denatonium benzoate, and blue dye. This toner will be imported in retail packages with a label on the back entitled “Drug Facts,” that lists its ingredients, uses, warnings, directions for use, etc. A sample of this product was obtained and examined by this office. This sample’s label reads “deep cleaning toner.”
The second toner at issue is Neutrogena’s Rapid Clear® 2-in-1 Fight & Fade. On Netrogena’s website, it is called “Rapid Clear 2-in-1 Fight and Fade Toner,” and the product’s description calls it an “acne toner.” It is used to fade acne marks as well as fight acne. It is packaged for retail sale in eight fluid ounce (207 mL) bottles. It is a clear orange liquid that contains two percent salicylic acid. Its other ingredients include denatured alcohol, which constitutes 38 percent of the product, water, butylene glycol, PPG-5-ceteth-20, C12-15 Alkyl lactate, sodium citrate, cocamidopropyl PG dimonium chloride, phosphate, PEG/PPG-20/6 dimethicone, cetyl lactate, benzalkonium chloride, sodium benzotriazolyl butylphenol sulfonate, disodium EDTA, sodium hydroxide, glycolic acid, fragrance, and yellow and red dyes. This toner will be imported in retail packages with a label on the back entitled “Drug Facts,” that lists its ingredients, uses, warnings, directions for use, etc.
ISSUE:
Whether the subject skin toners are classified as medicaments of heading 3004, HTSUS, or as preparations for the care of the skin (other than medicaments), of heading 3304, HTSUS?
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 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
3004 Medicaments (excluding goods of heading 3002, 3005 or 3006) consisting
of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses (including those in the form of transdermal administration systems) or in forms or packings for retail sale:
3304 Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations:
Note 1 to Chapter 30, HTSUS, provides, in pertinent part, that:
This chapter does not cover:…
(e) Preparations of headings 3303 to 3307, even if they have
therapeutic or prophylactic properties;
Note 3 to Chapter 33, HTSUS, provides, in pertinent part, that:
Headings 3303 to 3307 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packings of a kind sold by retail for such use.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) 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 (August 23, 1989).
The EN for heading 3004, HTSUS, states, in pertinent part:
This heading covers medicaments consisting of mixed or unmixed products, provided they are:…
(b) In packings for retail sale for therapeutic or prophylactic use. This
refers to products (for example, sodium bicarbonate and tamarind powder) which, because of their packing and, in particular, the presence of appropriate indications (statement of disease or condition for which they are to be used, method of use or application, statement of dose, etc.) are clearly intended for sale directly to users (private persons, hospitals, etc.) without repacking, for the above purposes.
These indications (in any language) may be given by label, literature or otherwise. However, the mere indication of pharmaceutical or other degree of purity is not alone sufficient to justify classification in this heading…
This heading includes pastilles, tablets, drops, etc., of a kind suitable only for medicinal purposes, such as those based on sulphur, charcoal, sodium tetraborate, sodium benzoate, potassium chlorate or magnesia….
The heading also excludes:
(c) Aqueous distillates or aqueous solutions of essential oils and
preparations of headings 33.03 to 33.07, even if they have therapeutic or prophylactic properties (Chapter 33).
The EN for heading 3304, HTSUS, states, in pertinent part:
(A) BEAUTY OR MAKE-UP PREPARATIONS AND PREPARATIONS
FOR THE CARE OF THE SKIN, INCLUDING SUNSCREEN OR
SUN TAN PREPARATIONS
This part covers:…
(3) Other beauty or make-up preparations and preparations for the care of the skin (other than medicaments), such as:… anti-acne preparations (other than soaps of heading 34.01) which are designed primarily to cleanse the skin and which do not contain sufficiently high levels of active ingredients to be regarded as having a primary therapeutic or prophylactic effect against acne.
At issue in this case is whether the subject toners are medicaments of heading 3004, HTSUS, or preparations for the care of the skin of heading 3304, HTSUS. Preparations of headings 3304, HTSUS, are excluded from classification in Chapter 30, HTSUS, even if they have therapeutic or prophylactic properties. See Note 1(e) to Chapter 30, HTSUS. As a result, we first examine classification in heading 3304, HTSUS, to determine if the subject merchandise is classified there.
Heading 3304, HTSUS, provides for “[b]eauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations.” The heading includes the type of anti-acne preparations that are primarily designed to clean the skin, and which do not contain sufficiently high levels of active ingredients to be regarded as having a primary therapeutic or prophylactic effect against acne. See EN 33.04. The subject merchandise fits this description exactly. It is primarily designed to clean the skin, even if it has therapeutic anti-acne properties. This merchandise is also marketed and sold as a skin toner. Toners are commonly accepted in the industry as preparations that primarily cleanse the skin, and whose anti-acne properties are secondary to this cleansing function. See, e.g., www.oed.com (defining “toning lotion” as a lotion, usu. slightly astringent, used for cosmetic purposes to refine the texture of the skin.); Webster’s New World College Dictionary, Fourth Edition at 15-7 (Wiley Publishing Inc. 2007) (defining “toner” as “a facial cleanser, usually containing alcohol, and astringent to varying degrees.”); www.wikipedia.com (stating that “skin toner or simply toner refers to a lotion or wash designed to cleanse the skin and shrink the appearance of pores, usually used on the face. Toners can be applied to the skin in different ways.”).
Furthermore, in Headquarters Ruling Letter (“HQ”) 965977, dated December 19, 2002, CBP found heading 3304, HTSUS, to be an eo nomine provision. In HQ 965977, CBP also consulted several lexicographic sources to define the term “preparations” as it appears in heading 3304, HTSUS. From these definitions, CBP concluded that “each definition specifically states or denotes that a ‘preparation’ is made for a specific purpose. Therefore, the eo nomine provision is limited by use.” See HQ 965977. Thus, because the terms of heading 3304, HTSUS, provide for preparations for the care of the skin, goods classified in this provision must be substances made for the specific purpose of skin care. This description, too, fits the subject merchandise exactly. As a result, the subject merchandise is described by the terms of heading 3304, HTSUS, which provides for “preparations for the care of the skin (other than medicaments).” This conclusion is consistent with prior CBP rulings that have classified anti-acne skin preparations with low levels of active ingredients that are primarily used to clean the skin in heading 3304, HTSUS. Such merchandise has included other Neutrogena products that are similar to the subject merchandise. See, e.g., NY G89460, dated April 30, 2001; NY N092720, dated February 17, 2010; NY N198416, dated January 25, 2012; NY N236797, dated January 23, 2013.
This conclusion is also consistent with the Food and Drug Administration’s (“FDA’s”) regulations, which set forth permitted active ingredients in certain concentrations which merchandise must contain in order to be considered acne medication. See 21 CFR 333.310 and 21 CFR 333.320; see also http://www. fda.gov/downloads/Drugs/Guidances/UCM259744.pdf. The only three permitted single active ingredients include benzoyl peroxide; sulfur; and salicylic acid. In particular, the salicylic acid is permitted in concentrations of 0.5 to two percent. See 21 CFR 333.310 and 21 CFR 333.320. Thus, products that fall within the class or kind of products recognized as medicaments for acne of heading 3004, HTSUS, must contain one of these active ingredients in the prescribed concentrations, and be regarded as having a primary therapeutic or prophylactic effect against acne. See, e.g., NY J83634, dated April 23, 2003; NY C82081, dated December 5, 1997; NY H83201, dated July 11, 2001; NY E81352, dated May 7, 1999.
The instant merchandise is distinguishable from the merchandise in the rulings cited above because the subject merchandise does not have a “primary therapeutic or prophylactic use against acne.” See EN 33.04. Both products at issue here primarily cleanse and tone the skin. They contain large amounts of astringents, surfactants, moisturizers, and other known cosmetic ingredients for the care of the skin. Therefore, they are described by heading 3304, HTSUS, as preparations for the care of the skin, regardless of any therapeutic effect their salicylic acid may have against acne. Acne treatment is not the primary effect of using this product. As such, they cannot be classified as medicaments of heading 3004, HTSUS.
Lastly, we note that because heading 3304, HTSUS, is an eo nomine provision, we do not apply the factors set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979, even though heading 3004, HTSUS, is a principal use provision. Hence, even if an analysis of the Carborundum factors were relevant to this case, the subject merchandise is marketed and sold in the skin care or beauty section of many stores, and products are marketed as a “toner.” Toners are known for their cleansing and skin-tightening properties. They are also cheaper than prescription acne medication, but approximately the same price as face cleaners, making it economically practical to use them a facial cleanser. As a result, the Carborundum factors do not support classification in heading 3004, HTSUS. Hence, the subject merchandise is a preparation for the care of the skin, and will be classified as such in heading 3304, HTSUS. This conclusion is consistent with prior CBP rulings. See, e.g., NY G89460; NY N092720; NY N198416; NY N236797.
HOLDING:
By operation of GRI 1, the subject skin toners are classified under heading 3304, HTSUS. They are specifically provided for in subheading 3304.99.50, HTSUS, which provides for “Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations: Other: Other: Other.” The column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
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,
Ieva O’Rourke, Chief
Tariff Classification and Marking Branch