CLA-2-21:OT:RR:NC:N2:228
Ms. April Collier
Pacific Customs Brokers, Inc.
P.O. Box 4505
Blaine, WA 98231
RE: The tariff classification, country of origin, and status under the North American Free Trade Agreement (NAFTA) of food products from Canada; Article 509
Dear Ms. Collier:
In your letter dated April 10, 2013, you requested a ruling on classification, country of origin and the status of the food products from Canada under the NAFTA on behalf of Rhema Health Products Ltd., Canada.
Ingredient information and samples accompanied your inquiry. The samples were forwarded to the Customs & Border Protection laboratory for analysis. Ocean Avenue brand WHEYBEYOND™ Glutathione Rejuvenating Formula and WHEYSMART™ Vanilla Bean Smoothie Mix are said to be a multisource protein powder, which the ultimate consumer will mix with water, juice or other products to produce a dietary supplement drink. Both products will be packaged for sale to the ultimate consumer via a multi-level marketing program in gusset bags/jars or single serve sachets. The products will also be imported in bulk form (in approximately 400-kg plastic bags) for further packaging in the United States by Rhema Health Products Inc. Packaging is subject to change based on the needs of the customer.
Glutathione Rejuvenating Formula is composed of chiefly whey protein concentrate (80 percent protein) and l-glycine. The remaining ingredients are soy bean lecithin, citric acid, stevia leaf extract, raspberry fruit powder, red beet powder, blueberry fruit powder, and pomegranate fruit powder. Vanilla Bean Smoothie Mix contains mostly whey protein concentrate (80 percent protein), pea protein isolate (82 - 84 percent protein), and l-glycine with the balance of inulin, acacia gum fiber, micellar casein (85 percent protein), apple fiber powder, flaxseed concentrate, soy bean lecithin, arabinogalactan, stevia leaf extract, vanilla bean extract, spirulina, chlorella, acerola berry SE, dandelina root, kelp, and potassium chloride. Laboratory analysis found that the Glutathione Rejuvenating Formula has a protein content of 48.6 percent, and the Vanilla Bean Smoothie Mix has a protein content of 43.9 percent.
The whey protein concentrate and soy bean lecithin are products of the United States. The l-glycine is a product of China. The citric acid is a product of Canada. The stevia leaf extract, raspberry fruit powder, red beet powder, blueberry fruit powder, and pomegranate fruit powder are said to be sourced from various countries.
In your letter, you suggested the products may fall in subheading 2106.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), the provision for other protein concentrates. We disagree. Based on the products’ ingredient composition and laboratory analysis, classification will fall elsewhere.
The applicable subheading for the Glutathione Rejuvenating Formula and the Vanilla Bean Smoothie Mix will be 2106.90.8200, HTSUS, which provides for food preparations not elsewhere specified or included…other…other…containing over 10 percent by weight of milk solids…other…other. The 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 http://www.usitc.gov/tata/hts/.
General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that
For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--
(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or
(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--
(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; . . . .
Based on the facts provided, the Glutathione Rejuvenating Formula described above qualifies for NAFTA preferential treatment because it meets the requirements of HTSUS General Note 12(b)(ii)(A) and 12(t)/21.12. The good will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
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.
As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.
Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.
Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the country of origin of the Glutathione Rejuvenating Formula for marking purposes is the United States. The country of origin for Customs duty purposes will be Canada. The samples you submitted do not appear to be properly marked with the country of origin.
Products of the United States are not subject to the country of origin marking requirements of 19 U.S.C. 1304. Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you direct any questions on this issue to the FTC.
Your inquiry does not provide enough information for us to give a country of origin, and NAFTA statue ruling on the Vanilla Bean Smoothie Mix. Your request should indicate the country of origin of each ingredient, and provide costs of each ingredient, and the total cost of the product. You should also explain what the acerola berry SE ingredient and the acacia gum fiber ingredient are. Detailed description of the manufacturing processes of the two ingredients will be helpful.
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 181 of the Customs Regulations (19 C.F.R. 181).
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 Bruce N. Hadley, Jr. at (646) 733-3029.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division