CLA-2-21:OT:RR:NC:N2:228
Ms. Sharon Garcia
Crowley Inc.
10205 NW 108th Avenue
Miami, FL 33178
RE: The tariff classification of jelly snacks from China.
Dear Ms. Garcia
In your letter dated June 7, 2022, you requested a tariff classification ruling on behalf of your client, Tropical Del Campo.
An ingredients breakdown, description of the manufacturing process, manufacturing flowchart, and a picture of the product accompanied your letter.
The subject merchandise, “Jelly Cup Penguin,” is described as a jelly-like snack food (soft and smooth in texture), that is individually packed for retail sale in 32-gram foil-sealed, circular-shaped plastic cups, and packaged in a plastic penguin casing containing 35 pieces. The jelly cups are said to contain 73 percent water, 8 percent fructose, 10 percent coconut, 8 percent sugar derived from sugar cane (13 percent by dry weight), and trace amounts of seaweed extract, citric acid, malic acid, sodium citrate, potassium citrate, potassium sorbate, aspartame, artificial fruit flavors, and artificial colors. The product is said to be marketed towards kids but is not suitable for children under 5 years old.
In your request, you proposed that the product may be classified under subheading 1704.90.3550, Harmonized Tariff Schedule of the United States (HTSUS), which provides for sugar confectionary (including white chocolate), not containing cocoa: other: confections or sweetmeats ready for consumption: other: other: put up for retail sale: other. We disagree.
The HTSUS does not contain a statutory definition for the term “confectionery.” However, CBP has adopted the meaning of the term given by the Court of International Trade (CIT) in Leaf Brands, Inc. v. United States, (“Leaf Brands”) 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.” 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.
The applicable subheading for the product, “Jelly Cup Penguin,” will be 2106.90.9997, HTSUS, which provides for food preparations not elsewhere specified or included . . . other . . . other . . . other containing sugar derived from sugar cane and/or sugar beets. 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.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 2106.90.99, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 2106.90.9997, HTSUS, listed above.
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