CLA-2:OT:RR:NC:N5:232
Ms. Sandra R. Calloway
Herbalife International of America, Inc.
950 West 190th Street
Torrance, CA 90502
RE: The tariff classification of Soup from Brazil
Dear Ms. Calloway:
In your letter dated September 15, 2023 you requested a tariff classification ruling.
The product under review is known as a Meal Replacement Soup Bean and Bacon. It is described as a powdered dietary supplement meal with formula number FF005027. The product is said to be packaged in a plastic canister of 432 grams containing sixteen servings of three tablespoons (27 grams). The item is described as being made by placing three tablespoons into a dish, adding 250 ml of warm water or nonfat milk, and mixing with a spoon. Ingredients include soy protein isolate, corn starch, black bean powder, cellulose powder, sunflower oil, inulin (chicory), salt, beans and bacon flavor, salt flavor, silicon dioxide, cocoa powder, dark brown coloring, lecithin powder, chives, magnesium oxide powder, yeast extract flavor, onion powder, natural annatto coloring, beet red powder coloring, onion flakes, vitamin premix, xanthan gum, mineral premix, garlic powder, black pepper powder, rosemary extract, and natural tocopherols.
In your letter, you proposed classification under subheading 2104.10.0020, Harmonized Tariff Schedule of the United States (HTSUS), which provides for soup and broths and preparations therefor ... dried. Pursuant to the General Explanatory Notes to 2104, HTSUS, the heading excludes “(d) Food preparations containing cocoa (generally heading 18.06 or 19.01).” This classification is therefore precluded because the soup contains cocoa powder.
In your letter, you also proposed classification under subheading 2106.90.9998, HTSUS, which provides for food preparations not elsewhere specified or included . . . other . . . other . . . other. Heading 2106, HTSUS, is a ‘basket’ provision for food preparations that are not covered elsewhere. Inasmuch as this heading applies only when all other provisions have been excluded and no competing heading specifies or includes the food preparations, it is inapplicable here. That is because the provisions in Chapter 18, HTSUS apply here, rendering Chapter 21 inapplicable for this item.
The General Explanatory Note to Chapter 18 provides, in pertinent part, as follows:
This Chapter covers cocoa (including cocoa beans) in all forms, cocoa butter, fat and oil and preparations containing cocoa (in any proportion), except “(c) food preparations of flour, groats, meal, starch or malt extract, containing less than 40% by weight of cocoa…”, “(d) swelled or roasted cereals containing not more than 6% by weight of cocoa calculated on a totally defatted basis…,” and “ (e) pastry, cakes, biscuits and other bakers’ wares, containing cocoa (heading 19.05).”
Furthermore, Explanatory Note 18.06 states, in pertinent part, as follows:
The heading also includes all sugar confectionery containing cocoa in any proportion (including chocolate nougat), sweetened cocoa powder, chocolate powder, chocolate spreads, and, in general, all food preparations containing cocoa (other than those excluded in the General Explanatory Note to this Chapter). [Emphasis added]
As such, the applicable subheading for the Meal Replacement Soup Bean and Bacon will be 1806.90.9090, HTSUS, which provides for: “Chocolate and other food preparations containing cocoa…other … other…other.” The rate of duty will be 6 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.
The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in Title 19, Code of Federal Regulations (CFR), Section 177.9(b)(1). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, whether directly, by reference, or by implication, is accurate and complete in every material respect. In the event that the facts are modified in any way, or if the goods do not conform to these facts at time of importation, you should bring this to the attention of CBP and submit a request for a new ruling in accordance with 19 CFR 177.2. Additionally, we note that the material facts described in the foregoing ruling may be subject to periodic verification by CBP.
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 questions regarding the above, contact National Import Specialist Frank Troise at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division