OT:RR:CTF:FTM H340269 TJS
Razija Hendriks
Active Nutrition International GmbH
Zielstattstr. 38
Munich 81379
Germany
RE: Tariff Classification of an Energy Bar
Dear Ms. Hendriks,
This letter is in response to your request, dated August 2, 2023, for a binding ruling regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of an “Energize Original Berry” bar. The National Commodity Specialist Division forwarded your request to this office for a response. Our ruling is set forth below.
FACTS:
The “Energize Original Berry Bar,” is a snack bar made of fructose-glucose syrup, fruit preparation [sugar, juice from concentrate: raspberry, cherry, strawberry; fructose syrup, lactose, apple puree, raspberry, strawberry, apple, gelling agent (pectin), palm fat, antioxidant (ascorbic acid), acid (citric acid), natural flavorings], maltodextrin, oat flakes, milk protein, rice crisps, almond paste, sodium citrate, rapeseed oil, beetroot juice concentrate, citric acid, magnesium carbonate, natural flavorings, and salt. The ruling request provides a flowchart of the bar production wherein raw ingredients are sourced, weighed, sieved, mixed, filled, portioned, pressed, extruded, cooled, cut, coated, inspected, and packaged for export. Upon importation into the United States, the article will be presented at an ambient temperature and will undergo no further processing. The bars will be sold in boxes containing 25 individually wrapped bars each weighing 55 grams.
According to your submission, the product is marketed as a “carbohydrate bar” intended to replenish energy before and during exercise. The product description states that the product “provides a scientifically developed carbohydrate mix with a 2:1 ratio of glucose and fructose sources, as well as sodium and magnesium to support your mineral balance.”
A sample of the bar was sent to a U.S. Customs and Border Protection (“CBP”) laboratory for testing. The results, reported in Laboratory Report Number NY20231498, dated April 26, 2024, show the dry weight sugar content as 26.5% fructose, 17.5% glucose, and 8.5% sucrose, with a total sugar content of 52.5%.
ISSUE:
What is the tariff classification of the “Energize Original Berry” bar?
LAW AND ANALYSIS:
Classification decisions under the HTSUS are 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. If the goods cannot be classified solely based on 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. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes, and, mutatis mutandis, to GRIs 1 through 5.
* * *
The 2025 HTSUS headings under consideration are as follows:
1704: Sugar confectionery (including white chocolate), not containing cocoa:
2106: Food preparations not elsewhere specified or included:
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The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 id.
The ENs to Chapter 17, HTSUS, provide in relevant part:
This Chapter covers not only sugars as such (e.g., sucrose, lactose, maltose, glucose and fructose), but also sugar syrups, artificial honey, caramel, molasses resulting from the extraction or refining of sugar and sugar confectionery. Solid sugar and molasses of this Chapter may contain added colouring matter, flavouring matter (e.g., citric acid or vanilla) or artificial sweeteners (e.g., aspartame or stevia), as long as they retain their original character as sugar or molasses.
The Chapter does not include:
…
Sweetened food preparations of Chapter 19, 20, 21 or 22.
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The ENs to Heading 1704, HTSUS, provide in relevant part:
This heading covers most of the sugar preparations which are marketed in a solid or semi solid form, generally suitable for immediate consumption and collectively referred to as sweetmeats, confectionery or candies.
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If the instant merchandise is a sugar confectionery of heading 1704, HTSUS, then it is excluded from classification as a food preparation of heading 2106, HTSUS. The term “confectionery” is not defined in the HTSUS. However, CBP has adopted the meaning of the term given by the Court of International Trade’s predecessor, the United States Customs Court, in Leaf Brands, Inc. v. United States, 70 Cust. Ct. 66 (1973). The court defined “confectionery” as the “many kinds of sweet-tasting articles which are eaten as such for their taste and flavor without further preparation and which are usually sold in confectionery outlets.” Id. at 71. Further, the court found that whether an article is confectionery is determined by its chief use as a confection, which may be evidenced by its character and design and the manner in which it is sold (i.e., through candy brokers, in confectionery outlets), rather than by its shape and texture. Id. at 72. Following Leaf Brands, CBP has consistently taken the position that a confection is a product that, in its condition as imported, is ready for consumption at retail as a confectionery, is marketed as such, and is not an ingredient of another food. See Headquarters Ruling Letter (“HQ”) 086101 (Feb. 27, 1990) (peanut flavored chips); HQ 955580 (May 26, 1994) (rainbow sprinkles); HQ H027857 (Aug. 8, 2008) (small marshmallows); and HQ H333793 (Mar. 12, 2024) (strawberry mochi).
In determining whether a snack bar has the character of sugar confectionery, CBP will look at its ingredients, avenue of sale, and packaging. For example, in HQ H269530, dated April 27, 2016, CBP classified a Frosted Flakes Bar, which consisted of corn flakes in bar form with a chocolate flavored coating on the bottom and weighing 21 grams each. The cereal bar contained approximately 26% added sugars and sweeteners, such as glucose and high fructose corn syrup, not including the additional sugar present in the frosted flakes and chocolate coating. CBP determined that the Frosted Flakes Bar had the character of sugar confectionery because of the high proportion of added sugars.
Similarly, in HQ H200575, dated April 16, 2012, CBP classified Kellogg’s Rice Krispies Treats, which were made from crisped rice cereal, butter or margarine, and marshmallows. They were sold to consumers in the United States in multi-pack boxes and as individual bars through various retail outlets, such as grocery stores, drug stores, and similar businesses. The treats were stated to contain approximately 35% medium grained milled rice and a combined sugar content over 50%, which included corn syrup, fructose, fine granulated sugar, corn syrup solids, dextrose and high fructose corn syrup. CBP examined the physical properties of the treat and determined it was moist, gooey, sticky, easily malleable, and very sweet like a marshmallow. Moreover, the packaging described the product as a “Crispy Marshmallow Square,” which emphasized that the treats were a marshmallow snack rather than a rice cereal snack. CBP also found that the treats were sold alongside other snack bars and candy. Therefore, CBP classified the bars in heading 1704, HTSUS, as a sugar confectionery.
In HQ 956769, dated February 2, 1996, CBP considered the classification of a “Crunchy Oat Bar,” which contained 55% rolled oats, 22% brown sugar, 13.5% vegetable oil, 3% sliced almonds, 3% honey, 1.5% sesame seeds, 1.5% wheat germ, and less than one percent each of salt and vanilla extract. CBP looked at the bars’ presentation and avenue of sale and found that, despite being marketed as a healthier option than candy bars, the granola bars were “snacks in the same vein as candy bars, in general.” Specifically, CBP noted that the bars were fully prepared for consumption and sold in vending machines or in grocery stores alongside other snacks, such as candy. Given these characteristics, CBP classified the granola bars in heading 1704, HTSUS.
In comparison to the confectionery products described above, here the “Energize Original Berry” bar contains 52.5% sugar, which is more than twice the amount of added sugar in the Frosted Flakes Bar and the Crunchy Oat Bar and equivalent to the sugar amount in the Rice Krispies Treats. The bar is marketed as a “carbohydrate bar” of which the carbohydrates are sourced from a sugar mix of glucose and fructose. It is evident that the bar’s chief use is to be consumed for the high sugar content. Additionally, the bar is a good of the kind usually sold alongside other snack bars. In addition to HQ H269530, HQ H200575, and HQ 956769, CBP has consistently classified snack and energy bars as sugar confectionery in heading 1704, HTSUS. See, e.g., New York Ruling Letter (“NY”) N317675 (Mar. 19, 2021); NY N315440 (Nov. 9, 2020); NY N042407 (Nov. 19, 2008); and NY E83332 (June 25, 1999). Therefore, consistent with previous CBP rulings, we find the “Energize Original Berry” bar is a sugar confectionery.
Since the bar is, in its condition as imported, ready for consumption at retail as a confectionery, is marketed for the sugar composition, and is not an ingredient of another food preparation, we conclude that the “Energize Original Berry” bar at issue is classified in heading 1704, HTSUS, and specifically in subheading 1704.90.35, HTSUS, which provides for “Sugar confectionery (including white chocolate), not containing cocoa: Other: Confections or sweetmeats ready for consumption: Other: Other.”
HOLDING:
By application of GRIs 1 and 6, we find that the “Energize Original Berry” bar at issue is classified in heading 1704, HTSUS, and specifically in subheading 1704.90.35, HTSUS, which provides for “Sugar confectionery (including white chocolate), not containing cocoa: Other: Confections or sweetmeats ready for consumption: Other: Other.” The 2025 general, column one rate of duty is 5.6% 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 online 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 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 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