CLA-2-21:OT:RR:NC:N5:433
Razija Hendriks
Active Nutrition International GmbH
Zielstattstr. 38
München 81379
Germany
RE: The tariff classification of a powder food preparation from Germany.
Dear Ms. Hendriks:
In your letter dated January 15, 2025, you requested a tariff classification ruling. In lieu of samples, technical and illustrative literature, a product description, and manufacturing processes were provided.
The “Dymatize Creatine Monohydrate (DYM) – Unflavored (300g) Powder,” is a food preparation for human consumption. The preparation’s ingredient composition is creatine monohydrate (Creapure®) (100%). The preparation contains no proteins, milk, sugar, or cocoa. Information provided states, “[C]reatine increases physical performance in successive bursts of short-term high intensity exercise.” The documentation provides a general manufacturing operation wherein intermediary ingredients are unbagged, sieved, ionized, weighed, inspected, and packaged. In the condition at the time of U.S. importation, the preparation will be presented at an ambient temperature and will undergo no further processing. At the time of U.S. importation, the preparation will be packaged and made available for retail sale “as is” in 10.5-ounce containers. Instructions direct the consumer to mix the powder with liquids and stir.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitutes the official interpretation of the Harmonized System at the international level.
Chapter 21, Harmonized Tariff Schedule (HTS), provides for “Miscellaneous Edible Preparations.” The “Dymatize Creatine Monohydrate (DYM) – Unflavored (300g) Powder” is not more specifically provided for elsewhere in the HTS and is therefore within the construct of Chapter 21 HTS.
The ENs for Chapter 21 HTS, Heading 2106, provides for “Food preparations not elsewhere specified or included.”
“Provided that they are not covered by any other heading of the Nomenclature, this heading covers: Part (A), “Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption.”
Part (B), “Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.) (see the General Explanatory Note to Chapter 38).”
“However, the heading does not cover enzymatic preparations containing foodstuffs (e.g., meat tenderisers consisting of a proteolytic enzyme with added dextrose or other foodstuffs). Such preparations fall in heading 35.07 provided that they are not covered by a more specific heading in the Nomenclature.”
Further, the ENs for Chapter 21 HTS, heading 2106 Part (B), item (16) provides for “Preparations, often referred to as food supplements or dietary supplements, consisting of, or based on, one or more vitamins, minerals, amino acids, concentrates, extracts, isolates or the like of substances found within foods, or synthetic versions of such substances, put up as a supplement to the normal diet. It includes such products whether or not also containing sweeteners, colours, flavours, odoriferous substances, carriers, fillers, stabilisers or other technical aids. Such products are often put up in packaging with indications that they maintain general health or well-being, improve athletic performance, prevent possible nutritional deficiencies or correct sub-optimal levels of nutrients.”
Information provided to this office states, the subject merchandise “[S]upport Muscle & Strength Building, Support High Intensity Training, Support Performance Boost” and “[D]aily creatine consumption can enhance the effect of resistance training on muscle strength in adults over the age of 55.” In view of these facts, the “Dymatize Creatine Monohydrate (DYM) – Unflavored (300g) Powder” is used in the food industry and is a preparation for human consumption.
The applicable subheading for the subject merchandise will be 2106.90.9998 Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other: Other: Other: Other: Other.” The general rate of duty will be 6.4% ad valorem.
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.
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 at https://hts.usitc.gov/.
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 U.S. Customs and Border Protection (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 and Border Protection 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, please contact National Import Specialist Dharmendra Lilia at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division