OT:RR:CTF:FTM H329278 TSM
Ms. Christi Roos
M-PACT Solutions
P.O. Box 30209
4294 Swinnea Road
Memphis, TN 38118
RE: Tariff Classification of Banana and Blueberry Smoothie Paws and Strawberry and Banana
Smoothie Yoyo
Dear Ms. Roos:
This letter is in response to your request, on behalf of Lotus Bakeries North America, Inc.,
(“Requestor” or “LBNA”) dated December 7, 2022, for a binding ruling regarding the tariff
classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of certain bite-
sized “fruit roll-up” snack foods.
FACTS:
The products at issue are identified as: (1) Banana and Blueberry Smoothie Paws, containing
52% apples, 31% pears, 9% gluten free oat extract, 5% bananas, 2% blueberries, vegetable oil
(sunflower), and black carrot extract; and (2) Strawberry and Banana Smoothie YoYo, containing
48% apples, 34% pears, 9% gluten free oat extract, 4% strawberry, 4% bananas, vegetable oil
(sunflower), black carrot extract. The black carrot extract is said to be used as a natural way to color
the products. Each package contains five pouches that include two roll-ups each.
The manufacturing process includes several steps. The fruit is first placed into a stainless-
steel blender where it is blended and pureed. The fruit is then moved to a stainless-steel depositor
where it is transferred to a baking sheet and allowed to dry. The sheets of fruit are then slightly baked
in a convection oven at a temperature of 108 degrees Fahrenheit. After baking is complete, the fruit
sheets are cut into lengths by a stainless-steel cutting machine. The fruit strips are then rolled and cut
into bite sized “Fruit Rolls” shapes and packed into plastic bags and cardboard boxes ready for
shipment.
ISSUE:
What is the tariff classification of the Banana and Blueberry Smoothie Paws and
Strawberry and Banana Smoothie Yoyo?
LAW AND ANALYSIS:
Classification under the HTSUS is determined 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.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized
Commodity Description and Coding System may be utilized. The ENs to the Harmonized
Commodity Description and Coding System represent the official interpretation of the tariff 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 HTSUS provisions under consideration are as follows:
0813 Fruit, dried, other than that of headings 0801 to 0806; mixtures of nuts or dried
fruits of this chapter
* * *
2007 Jams, fruit jellies, marmalades, fruit or nut pureé and fruit or nut pastes, obtained by
cooking, whether or not containing added sugar or other sweetening matter
* * *
2008 Fruit, nuts and other edible parts of plants, otherwise prepared or preserved,
whether or not containing added sugar or other sweetening matter or spirit, not
elsewhere specified or included
* * *
Note 3 to Chapter 8 provides as follows:
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Dried fruit or dried nuts of this chapter may be partially rehydrated, or treated for the
following purposes:
(a) For additional preservation or stabilization (for example, by moderate heat
treatment, sulfuring, the addition of sorbic acid or potassium sorbate),
(b) To improve or maintain their appearance (for example, by the addition of
vegetable oil or small quantities of glucose syrup), provided that they retain the
character of dried fruits or dried nuts.
* * *
Note 5 to Chapter 20 provides as follows:
For the purposes of heading 2007, the expression “obtained by cooking”
means obtained by heat treatment at atmospheric pressure or under reduced
pressure to increase the viscosity of a product through reduction of water
content or other means.
* * *
The General EN to Chapter 8 provides, in pertinent part, the following:
This Chapter covers fruit, nuts and peel of citrus fruit or melons (including
watermelons), generally intended for human consumption (whether as
presented or after processing). They may be fresh (including chilled), frozen
(whether or not previously cooked by steaming or boiling in water or
containing added sweetening matter) or dried (including dehydrated,
evaporated or freeze-dried); provided they are unsuitable for immediate
consumption in that state, they may be provisionally preserved (e.g., by
sulphur dioxide gas, in brine, in sulphur water or in other preservative
solutions).
* * *
Fruit and nuts of this Chapter may be whole, sliced, chopped, shredded,
stoned, pulped, grated, peeled or shelled.
* * *
EN 5 to Chapter 20 provides as follows:
For the purposes of heading 20.07, the expression “obtained by cooking”
means obtained by heat treatment at atmospheric pressure or under reduced
pressure to increase the viscosity of a product through reduction of water
content or other means.
* * *
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EN 08.13 provides in relevant part as follows:
Dried fruit.
This heading includes dried fruits which when fresh are classified in
headings 08.07 to 08.10. They are prepared either by direct drying in the sun
or by industrial processes (e.g., tunnel-drying).
The fruits most commonly processed in this way are apricots, prunes, apples,
peaches and pears. Dried apples and pears are used for the manufacture of
cider or perry as well as for culinary purposes. With the exception of prunes,
the fruits are usually halved or sliced, and stoned, cored or seeded. They may
also be presented (particularly in the case of apricots and prunes) in the form
of slices or blocks of pulp, dried or evaporated.
The heading covers tamarind pods. It also includes tamarind pulp, without
sugar or other substances added and not otherwise processed, with or without
seeds, strings or pieces of the endocarp.
* * *
The General EN to Chapter 20 provides as follows:
This Chapter includes:
(1) Vegetables, fruit, nuts and other edible parts of plants prepared or preserved
by vinegar or acetic acid.
(2) Vegetables, fruit, nuts, fruit-peel and other parts of plants preserved by
sugar.
(3) Jams, fruit jellies, marmalades, fruit or nut purées, fruit or nut pastes,
obtained by cooking.
(4) Homogenised prepared or preserved vegetables and fruit.
(5) Fruit or vegetable juices, neither fermented nor containing added alcohol, or
of an alcoholic strength by volume not exceeding 0.5 % vol.
(6) Vegetables, fruit, nuts and other edible parts of plants prepared or preserved
by other processes not provided for in Chapter 7, 8 or 11 or elsewhere in the
Nomenclature.
(7) Products of heading 07.14, 11.05 or 11.06 (other than flour, meal and
powder of the products of Chapter 8), which have been prepared or
preserved by processes other than those specified in Chapter 7 or 11.
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(8) Fruit preserved by osmotic dehydration.
These products may be whole, in pieces or crushed.
The Chapter does not cover:
(a) Food preparations containing more than 20 % by weight of sausage, meat, meat
offal, blood, insects, fish or crustaceans, molluscs or other aquatic invertebrates,
or any combination thereof (Chapter 16).
(b) Products such as fruit tarts, prepared with pastry (heading 19.05).
(c) Soups and broths and preparations therefor and homogenised composite food
preparations of heading 21.04.
(d) Fruit or vegetable juices of an alcoholic strength by volume exceeding
0.5 % vol (Chapter 22).
* * *
EN 20.07 provides as follows:
Jams are made by cooking whole fruit or fruit pulp or certain vegetables (e.g.,
marrows, aubergines) or other products (e.g., ginger, rose petals) with sugar in
approximately equal proportions. When cool they are of moderately firm
consistency and contain pieces of the fruit.
Marmalades are a variety of jam generally prepared from citrus fruit.
Fruit jellies are prepared by cooking fruit juices (expressed from raw or cooked
fruit) with sugar until the product sets on cooling. They are of firm consistency,
clear and free from pieces of fruit.
Fruit or nut purées are prepared by cooking sieved fruit pulp or powdered nuts
with or without the addition of sugar, to a thickish consistency. Fruit purées
differ from jams in having a higher proportion of fruit and a smoother
consistency.
Fruit or nut pastes (apple, quince, pear, apricot, almond, etc.) are evaporated
purées of a solid or almost solid consistency.
Products of this heading which are normally prepared with sugar may be
sweetened with synthetic agents (e.g., sorbitol) instead of sugar.
This heading also includes homogenised preparations.
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The heading excludes:
(a) Jellies and pastes in the form of sugar confectionery or chocolate
confectionery (heading 17.04 or 18.06 respectively).
(b) Table jellies prepared from gelatin, sugar and fruit juice or artificial fruit
essences (heading 21.06).
* * *
EN 20.08 provides as follows:
This heading covers fruit, nuts and other edible parts of plants, whether whole,
in pieces or crushed, including mixtures thereof, prepared or preserved
otherwise than by any of the processes specified in other Chapters or in the
preceding headings of this Chapter.
It includes, inter alia:
(1) Almonds, ground-nuts, areca (or betel) nuts and other nuts, dry-roasted,
oil-roasted or fat-roasted, whether or not containing or coated with vegetable
oil, salt, flavours, spices or other additives.
(2) “Peanut butter”, consisting of a paste made by grinding roasted ground-nuts,
whether or not containing added salt or oil.
(3) Fruit (including fruit-peel and seeds) preserved in water, in syrup, in
chemicals or in alcohol.
(4) Fruit pulp, sterilised, whether or not cooked.
(5) Whole fruits, such as peaches (including nectarines), apricots, oranges
(whether or not peeled or with the stones or pips removed) crushed and
sterilised, whether or not containing added water or sugar syrup but in a
proportion insufficient to render them ready for direct consumption as
beverages. When rendered ready for direct consumption as beverages by
addition of a sufficient quantity of water or of sugar syrup, these products
fall in heading 22.02.
(6) Cooked fruit. However, fruit cooked by steaming or boiling in water and
frozen remains in heading 08.11.
(7) Stems, roots and other edible parts of plants (e.g., ginger, angelica, yams,
sweet potatoes, hop shoots, vine leaves, palm hearts) conserved in syrup or
otherwise prepared or preserved.
(8) Tamarind pods in sugar syrup.
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(9) Fruit, nuts, fruit-peel and other edible parts of plants (other than vegetables),
preserved by sugar and put up in syrup (e.g., marrons glacés or ginger),
whatever the packing.
(10) Fruit preserved by osmotic dehydration. The expression “osmotic
dehydration” refers to a process whereby pieces of fruit are subjected to
prolonged soaking in a concentrated sugar syrup so that much of the water
and the natural sugar of the fruit is replaced by sugar from the syrup. The
fruit may subsequently be air-dried to further reduce the moisture content.
The products of this heading may be sweetened with synthetic sweetening agents
(e.g., sorbitol) instead of sugar. Other substances (e.g., starch) may be added to
the products of this heading, provided that they do not alter the essential
character of fruit, nuts or other edible parts of plants.
The products of this heading are generally put up in cans, jars or airtight
containers, or in casks, barrels or similar containers.
The heading also excludes products consisting of a mixture of plants or parts of
plants (including seeds or fruits) of different species or consisting of plants or
parts of plants (including seeds or fruits) of a single or of different species mixed
with other substances such as one or more plant extracts, which are not
consumed as such, but which are of a kind used for making herbal infusions or
herbal “teas” (e.g., heading 08.13, 09.09 or 21.06).
The heading does not cover fruit, nuts or other edible parts of plants transformed
into sugar confectionery (including those based on natural honey), of heading
17.04.
The heading further excludes mixtures of plants, parts of plants, seeds or fruit
(whole, cut, crushed, ground or powdered) of species falling in different
Chapters (e.g., Chapters 7, 9, 11, 12), not consumed as such, but of a kind used
either directly for flavouring beverages or for preparing extracts for the
manufacture of beverages (Chapter 9 or heading 21.06).
In the request for a ruling, the Requestor argued that the Banana and Blueberry Smoothie
Paws and Strawberry and Banana Smoothie Yoyo are classified in heading 2007, HTSUS, which
provides for “Jams, fruit jellies, marmalades, fruit or nut pureé and fruit or nut pastes, obtained by
cooking, whether or not containing added sugar or other sweetening matter.” In this regard, Note 5
to Chapter 20, HTSUS, and EN 5 to Chapter 20, provide that the expression “obtained by cooking”
means obtained by heat treatment at atmospheric pressure or under reduced pressure to increase
the viscosity of a product through reduction of water content or other means. It is CBP’s position
that “heat treatment at atmospheric pressure” includes cooking techniques such as, for example,
sterilization, requiring treatment at high temperatures. See NY N315532, dated November 12,
2020 (classifying fruit purees prepared by washing, peeling, crushing, sieving, mixing, cooking,
and sterilizing, in heading 2007, HTSUS); NY N132742, dated December 14, 2010 (classifying
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pear puree prepared by cooking, pitting, sieving, evaporating and concentrating to 30-32 Brix, and
sterilizing, in heading 2007, HTSUS); and NY M83691, dated June 1, 2006 (classifying fruit
purees prepared by pitting, milling, de-aerating, heating to 85 to 95 degrees Centigrade for one to
one and one half minutes to inactivate enzymes, passing through a pulper and finisher, evaporating
to 30-32 degrees Brix, and sterilizing, in heading 2007, HTSUS). Moreover, CBP has interpreted
“heat treatment under reduced pressure” to include cooking techniques such as vacuum
evaporation, designed to encompass pressure to reduce moisture in the product in order to increase
its viscosity. See NY N323398, dated January 21, 2022 (classifying fruit bars made by placing the
ingredients into a wall evaporator that uses steam to cook the product while removing the majority
of the moisture via a vacuum, in heading 2007, HTSUS); and NY N327737, dated September 16,
2022 (classifying certain fruit bars prepared by cooking in a vacuum evaporator to reduce the
moisture content to approximately 78-88 brix, in heading 2007, HTSUS).
Upon review, we noted that the manufacturing process for the Banana and Blueberry
Smoothie Paws and Strawberry and Banana Smoothie Yoyo products is described in relevant part
as follows: “The fruit is then moved to a stainless-steel depositor where it is transferred to a baking
sheet and allowed to dry. The sheets of fruit are then slightly baked in a convection oven at a
temperature of 108 degrees Fahrenheit.” Consistent with the foregoing discussion, we find that that
heat treatment at 108 degrees Fahrenheit is not sufficient to render a product to be “obtained by heat
treatment at atmospheric pressure or under reduced pressure” and therefore are not “obtained by
cooking” within the meaning of Note 5 to Chapter 20. Accordingly, we conclude that the Banana and
Blueberry Smoothie Paws, and Strawberry and Banana Smoothie Yoyo products are not classified
in heading 2007, HTSUS.
Heading 0813, HTSUS, provides for “Fruit, dried, other than that of headings 0801 to 0806;
mixtures of nuts or dried fruits of this chapter.” Consistent with EN 08.13, this heading covers
dried fruit prepared either by direct drying in the sun or by industrial processes such as, for
example, tunnel-drying. We find that the manufacturing process for the products under
consideration, consisting of drying on the baking sheet and subsequent baking at 108 degrees
Fahrenheit, does not exceed drying as described in EN 08.13. See NY I81943, dated June 7, 2002
(classifying two varieties of fruit rolls dried on trays for 12 hours at 55 degrees Celsius and
containing differing proportions of fruits such as apricot, blackberry, blueberry, passion fruit,
raspberry, strawberry, cherry, apple, banana, guava, mango, pineapple, and passion fruit, in
heading 0813, HTSUS). However, consistent with Note 3 to Chapter 8, HTSUS, dried fruit of this
Chapter may be treated for additional preservation or stabilization (for example, by moderate heat
treatment, sulfuring, the addition of sorbic acid or potassium sorbate), or for improvement or
maintenance of appearance (for example, by the addition of vegetable oil or small quantities of
glucose syrup), provided that the character of dried fruit is retained. Accordingly, we determine
that the products at issue are beyond the scope of Chapter 8, HTSUS because the subject products
contain ingredients other than vegetable oil or glucose syrup. In particular, the subject products
contain gluten free oat extract and black carrot extract, which are not akin to the ingredients
included in Note 3 to Chapter 8, HTSUS, for additional preservation or stabilization, or
improvement or maintenance of appearance. As a result, we find that the products at issue no
longer retain the character of dried fruit within the meaning of Note 3 to Chapter 8, HTSUS, and
are thus not classifiable in heading 0813, HTSUS.
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Heading 2008, HTSUS, provides for “Fruit, nuts and other edible parts of plants, otherwise
prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit,
not elsewhere specified or included.” General EN to Chapter 20 states that this Chapter includes
“Jams, fruit jellies, marmalades, fruit or nut purées, fruit or nut pastes, obtained by cooking” and
“vegetables, fruit, nuts and other edible parts of plants prepared or preserved by other processes
not provided for in Chapter 7, 8 or 11 or elsewhere in the Nomenclature.” Moreover, EN 20.08
specifically covers “fruit, nuts and other edible parts of plants, whether whole, in pieces or
crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes
specified in other Chapters or in the preceding headings of this Chapter.” EN 20.08 further
provides that “Other substances (e.g., starch) may be added to the products of this heading,
provided that they do not alter the essential character of fruit, nuts or other edible parts of plants.”
Upon review of the ingredients contained in the Banana and Blueberry Smoothie Paws and
Strawberry and Banana Smoothie Yoyo products, we conclude that the products overwhelmingly
consist of various fruit purees. Therefore, we find that they are appropriately classified within
heading 2008, HTSUS, as fruit preparations. The other ingredients in the products at issue –
gluten free oat extract, sunflower oil, and black carrot extract – do not “alter the essential
character” of the subject products as fruit purees. See NY N195650, dated January 4, 2012
(classifying two products containing differing proportions of ingredients such as apples, cereals
(rice flour, corn flour, oat fiber, psyllium), ascorbic acid, yogurt, strawberries, blackcurrant
concentrated juice, carrot extract, ascorbic acid, and natural flavor, in heading 2008, HTSUS).
Based on the foregoing, we conclude that Banana and Blueberry Smoothie Paws and
Strawberry and Banana Smoothie Yoyo are classified in heading 2008, HTSUS, and specifically in
subheading 2008.97.90, HTSUS, which provides for “Fruit, nuts and other edible parts of plants,
otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter
or spirit, not elsewhere specified or included: Other, including mixtures other than those of
subheading: Mixtures: Other.”
HOLDING:
By application of GRIs 1 and 6, we find that the Banana and Blueberry Smoothie Paws,
and Strawberry and Banana Smoothie Yoyo fruit puree products at issue are classified in heading
2008, HTSUS. Specifically, they are classified in subheading 2008.97.90, HTSUS, which
provides for “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether
or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or
included: Other, including mixtures other than those of subheading: Mixtures: Other.” The 2025
column one, general rate of duty is 14.9%.
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 the internet 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 Customs Service field office to the transaction
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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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