OT:RR:CTF:CPMM
H311058 MMM
TARIFF NO: 2106.90.98
Mr. Matthew Clark
SEKO Customs Brokerage, Inc.
1100 Arlington Heights Rd.
Itasca, Illinois 60143
Re: Request for Binding Ruling for Unflavored powder amino acid blend
Dear Mr. Clark:
This is in response to your request of April 23, 2020, on behalf of Prinova US LLC, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an unflavored powder amino acid blend.
FACTS:
The subject product is a soluble food grade, unflavored blend of three branched-chain amino acids combined at a 2:1:1 ratio of L-leucine (50%), L-isoleucine (25%), and L-valine (25%). In addition to these active food ingredients, the product contains a small amount of lecithin as a processing aid/emulsifier. It is marketed as a dietary supplement for human consumption after mixing with water or other liquid. The subject blend is in the form of a powder that has been microencapsulated.
ISSUE:
Whether the Amino acid blend is classified as a food preparation of heading 2106, HTSUS, or a chemical product not elsewhere specified or included of heading 3824, HTSUS.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 2020 HTSUS provisions under consideration are as follows:
2106: Food preparations not elsewhere specified or included:
3824: Prepared binders for foundry molds or cores; chemical products and
preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:
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Note 1 to chapter 38 provides, in pertinent part, as follows:
This Chapter does not cover…
(b) Mixtures of chemicals with foodstuffs or other substances with nutritive
value, of a kind used in the preparation of human foodstuffs (generally,
heading 2106);
* * * * * *
The Harmonized Commodity Description and Coding System (HS) Explanatory Notes (“ENs”) constitute the official interpretation of the HS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HS at the international level, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 21.06 (B) provides as follows:
“provided that they are not covered by any other heading of the Nomenclature, this heading covers… Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.).”
EN 21.06 (16) provides as follows:
(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).
The General EN to Chapter 38, further provides:
For the purposes of Note 1 (b) to the Chapter, the expression “foodstuffs or other substances with nutritive value” principally includes edible products of Sections I to IV.
The expression “foodstuffs or other substances with nutritive value” also includes certain other products, for example, products of Chapter 28 used as mineral supplements in food preparations, sugar alcohols of heading 29.05, essential amino acids of heading 29.22, lecithin of heading 29.23, provitamins and vitamins of heading 29.36, sugars of heading 29.40, animal blood fractions of heading 30.02 for use in food preparations, casein and caseinates of heading 35.01, albumins of heading 35.02, edible gelatin of heading 35.03, edible protein substances of heading 35.04, dextrins and other edible modified starches of heading 35.05, sorbitol of heading 38.24, edible products of Chapter 39 (such as amylopectin and amylose of heading 39.13). It should be noted that this list of products is simply illustrative and should not be taken to be exhaustive.
The mere presence of “foodstuffs or other substances with nutritive value” in a mixture would not suffice to exclude the mixture from Chapter 38, by application of Note 1 (b). The mixtures which are excluded from Chapter 38 by virtue of Note 1 (b) are those which are of a kind used in the preparation of human foodstuffs.
* * * * * *
Heading 2106, HTSUS, provides for food preparations. EN 21.06, as well as
Note 1(b) to Chapter 38, further clarify that heading 2106, HTSUS, covers mixtures of chemicals with foodstuffs or other substances with nutritive value, for incorporation in food preparations either as ingredients or to improve some of their characteristics.
A mixture is “a blend or combination; an aggregate of heterogeneous ingredients. The Amino Acid blend contains leucine, isoleucine, valine, and lecithin. The amino acids are combined with water and lecithin and sent to a homogenizer. The resulting emulsion is passed through a spray dryer to produce the microencapsulated particles, which are then passed through a sieve before packaging.
The amino acid blend is certainly a mixture of chemical compounds. This does not end our inquiry. Leucine, isoleucine, and valine are substances of nutritive value of the type described in EN 21.06 and the General EN to Chapter 38. Additionally, the General EN to Chapter 38 specifically directs the classification of edible essential amino acids to heading 2106, HTSUS.
Finally, amino acid blends are frequently marketed for health and sports nutrition, and the subject merchandise is specifically marketed as a dietary supplement for human consumption after mixing with water or other liquid. EN 21.06 (16) also includes preparations, referred to as dietary supplements, consisting of amino acids, put up as a supplement to a normal diet.
The subject amino acid blend is a mixture containing nutrients which has been formulated for and is used in the preparation of human foodstuffs, and is therefore covered by heading 2106, HTSUS.
HOLDING:
The amino acid blend is classified in heading 2106, HTSUS, specifically subheading 2106.90.98, HTSUS, which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other.” The 2020 general, column one 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 on World Wide Web at http://www.usitc.gov/tata/hts/.
Sincerely,
Craig T. Clark, Director
Commercial and Trade Facilitation Division