CLA-2-21:OT:RR:NC:N2:228
Mr. Jonathan Hupert
Biddle Sawyer Corporation
505 Eighth Avenue, Suite 1802 New York, NY 10018
RE: The tariff classification of sugar-free chewing gum preparations from Spain
Dear Mr. Hupert:
In your letter dated February 17, 2023, you requested a tariff classification ruling.
Ingredients breakdowns, a manufacturing flowchart, product specification sheets, pictures of the products, marketing literature and product labeling accompanied your letter.
The first product, “Health In Gum (HIG) PWD-03,” is a sugar-free chewing gum preparation in free-flowing powder form that is said to contain gum base, sorbitol, isomalt, anticaking agent (E-551), and antioxidant (BHT).
The second product, “Health In Gum (HIG) PWD-04,” is a sugar-free chewing gum preparation in free-flowing powder form that is said to contain gum base, mannitol, xylitol, plasticizer, anticaking agent (E-551), sorbitol and antioxidant (BHT).
The gum base for both HIG PWD preparations is said to contain elastomeric polymers, resins, refined waxes, glycerol esters of edible fatty acids, talc, and antioxidant (BHT). These two excipient preparations are used to make compressible gum tablets which are intended to be chewed and discarded, not ingested. They are white to yellowish granulates partly soluble in water and alcohol that are used for both pharma and nutraceutical products depending on the active ingredient in the gum being produced. The instant HIG PWD products do not contain any active ingredients upon importation. These excipient preparations are sold to the nutraceutical and pharmaceutical industries who then add active ingredients to manufacture the finished product, i.e., vitamins, supplements, active pharmacological ingredients (API’s), etc., which are then formed into a gum tablet for packaging and retail sales in the United States. The gum preparation products will be imported in ambient condition in packages weighing 22 kg., net packed.
In your letter, you suggested that the “Health in Gum (HIG) PWD-03” and the “Health in Gum (HIG) PWD-04” may be classified under subheading 2106.90.9985, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or included…other…other…other…confectionery (including gum) containing synthetic sweetening agents (e.g., saccharin) instead of sugar. The term “confectionery” is not defined in the HTSUS. However, CBP has adopted the meaning of the term given by the United States Customs Court (now the Court of International Trade) in Leaf Brands, Inc. v. United States, (“Leaf Brands”) 70 Cust. Ct. 66 (1973). In the alternative you also mentioned 1704.10.0000, HTSUS, which provides for “Sugar confectionery (including white chocolate), not containing cocoa…chewing gum, whether or not sugar-coated.”
The Court has 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.” See Leaf Brands, Inc. v. United States, (“Leaf Brands”) 70 Cust. Ct. 66 (1973) 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. 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 and is marketed as such; it is not an ingredient of another food product. See, e.g., HQ 086101, dated February 27, 1990 (peanut flavored chips), HQ 085206, dated February 23, 1990 (white chocolate in 5 kg blocks), HQ 955580, dated July 30, 2002, and HQ 965211, dated August 1, 2002 (chocolate fish). Based on the ingredients breakdown, character, design and manner in which the product is sold, the excipient preparations will be classified elsewhere.
The applicable subheading for the sugar-free chewing gum preparation products will be 2106.90.9998, HTSUS, which provides for food preparations not elsewhere specified or included . . . other . . . other . . . other. The general rate of duty will be 6.4 percent 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 the World Wide Web at https://hts.usitc.gov/current.
This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Timothy Petrulonis at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division