CLA-2-22:OT:RR:NC:232
Mr. Joseph F. Walter
Livingston International Trade Services, Inc.
670 Young Street
Tonawanda, NY 14150
RE: The tariff classification, marking and country of origin of fruit smoothies from Canada
Dear Mr. Walter:
In your letter dated August 6, 2008 you requested a ruling on tariff classification and country of origin. Your request also asks for the marking requirements for the products. Descriptive and illustrative information of the products were included with your request. An ingredient breakdown and samples were also submitted along with your letter. The samples were forwarded to the Customs Laboratory for analysis. The products are described as five fruit smoothies produced in Canada by Arthur’s Fresh Co., Ltd from fruit juices and purees obtained from various source countries. The ingredients are mixed together (batched), tested for quality, and pasteurized. None of the five products will be fortified with additional Vitamin C. The finished products are then packaged in 900 ml (30.5 ounce) bottles which are then packed eight to a case. The products will be sold to grocery stores, supermarkets and other retail outlets in the United States.
The five products are: 103111-Acai Plus; 103103-Green Energy; 103110-Pom Plus; 103101-Mango Plus and 103205-Strawberry Rainforest. The stated ingredients expressed by weight percentages along with respective country of origin are as follows for each individual fruit smoothie. 103111-Acai Plus is said to contain 35.90 percent Apple Juice (USA), 26.30 percent Banana Puree (Ecuador) and 37.80 percent Acai Blend (Canada). 103103-Green Energy is said to contain 66.42 percent Apple Juice (USA), 5.39 percent Passion Fruit Juice (Ecuador), 24.67 percent Banana Puree (Ecuador), 3.01 percent Prune Plum Puree (USA), 0.33 percent Spirulina Powder (China), 0.10 percent Omega Flax Seed Oil (Canada), 0.04 percent Barley Grass (South America) and 0.03 percent Wheat Grass (South America). 103110-Pom Plus is said to contain 24.80 percent Apple Juice (USA), 57.24 percent Pomegranate Juice (Turkey), 12.34 percent Banana Puree (Ecuador), 2.13 percent Black Currant Puree (Canada) and 3.49 percent Dark Cherry Puree (Canada). 103101-Mango Plus is said to contain 66.10 percent Apple Juice (USA), 0.60 percent Lemon Juice NFC (New Zealand), 10.90 percent Alphonso Mango Puree (India), 10.90 percent Totapuri Mango Puree (India) and 11.50 percent Banana Puree (Ecuador). 103205-Strawberry Rainforest is said to contain 57.60 percent Apple Juice (USA), 18.60 percent Banana Puree (Ecuador) and 23.80 percent Strawberry Blend (Canada).
According to Customs Laboratory Report no. NY20081220, dated November 28, 2008, the sample, a dark brown colored liquid in a plastic bottle labeled “Arthur’s Acai Plus” contains 5.18 percent of fructose, 3.80 percent of glucose and 1.71 percent of sucrose. The product has 84.5 percent of water and a Brix Value of 14.4. According to Customs Laboratory Report no. NY20081218, dated November 28, 2008, the sample, a grey colored liquid in a plastic bottle labeled “Arthur’s Green Energy” contains 6.82 percent of fructose, 4.61 percent of glucose and 1.43 percent of sucrose. The product has 83.6 percent of water and a Brix Value of 16.1. According to Customs Laboratory Report no. NY20081221, dated November 28, 2008, the sample, a dark brown colored liquid in a plastic bottle labeled “Arthur’s Pom Plus” contains 6.67 percent of fructose, 6.24 percent of glucose, and no sucrose. The product has 83.7 percent of water and a Brix Value of 15.9. According to Customs Laboratory Report no. NY20081219, dated November 28, 2008, the sample, a dark brown liquid in a plastic bottle labeled “Arthur’s Strawberry Rainforest” contains 5.65 percent of fructose, 2.67 percent of glucose and 1.57 percent of sucrose. The product has 87.7 percent of water and a Brix Value of 12.8.
The applicable subheading for the 103111-Acai Plus, 103103-Green Energy, 103110-Pom Plus, 103101-Mango Plus and 103205-Strawberry Rainforest will be 2209.90.9090, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009: Other: Other…Other. The rate of duty will be 0.2 cents per liter.
The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.
The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.
Section 134.1(b) of the regulations, defines "country of origin" as the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin.
Section 134.1(j) of the regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.
Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the imported 103111-Acai Plus, 103103-Green Energy, 103110-Pom Plus, 103101-Mango Plus and 103205-Strawberry Rainforest Fruit Smoothies are all goods of Canada for marking purposes.
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/.
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 Frank Troise at (646) 733-3031.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division