CLA-2-19:OT:RR:NC:N5:228
Samir Varma
Thompson Hine LLP
1919 M Street NW, Suite 700
Washington, DC 20036
RE: The tariff classification, country of origin and marking of a snack food from Indonesia
Dear Samir Varma:
An ingredients breakdown, a description of the manufacturing process and pictures of the product labeling
accompanied your inquiry.
The subject merchandise, “SKIPPY® Peanut Butter Wafer Mini Cones,” are described as waffle cones filled
with a peanut butter spread and a chocolate flavored topping. The mini wafer cones are comprised of a
crunchy wafer in addition to a creamy peanut butter spread from the base to mid-section of the cone and a
chocolate flavored topping layered at the top. The wafer cone (Indonesia) is composed of wheat flour, sugar,
starch, palm oil, emulsifier lecithin non-GMO E322, salt, vanilla and caramel E150c. The fillings include the
following: (1) peanut butter (China) (Peanut, sugar, peanut oil, hydrogenated vegetable oil, salt); (2) a
chocolate compound (Indonesia) (sugar, hydrogenated vegetable fat, cocoa powder, whey permeate powder);
(3) rice crispy crumbs (Indonesia) (rice flour, corn starch and calcium carbonate); (4) lecithin (Brazil); and
(5) an antioxidant (India) (BHA, BHT, corn oil).
The wafer cones are manufactured in Indonesia by baking the wafer cone mix, compressing via a roller mold,
cooling, cutting and forming into cones. The finished product, “SKIPPY® Peanut Butter Wafer Mini Cones,”
are also manufactured in Indonesia by first processing the peanut butter, rice crispy crumbs, lecithin and
antioxidant into what is described as a “peanut slurry.” followed by processing the chocolate compound in
separate machines until a depositor fills the wafer cones with the peanut butter slurry and chocolate
compound. The product will be imported in an ambient condition and in bulk quantities for further sale to
retail stores in the United States. Each bag at retail will contain 16 of the air-filled individually wrapped
cones. Each case imported will contain 12 of the bags to be sold at retail.
CLASSIFICATION
The applicable subheading for the subject merchandise, “SKIPPY® Peanut Butter Wafer Mini Cones,” will
be 1905.32.0041, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Bready,
pastry, cakes, biscuits and other bakers’ wares…. Waffles and wafers… other… containing peanuts or peanut
products. The general rate of duty will be free.
COUNTRY OF ORIGIN AND MARKING
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that unless excepted, every
article of foreign origin imported into the United States 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 United States, the English name of the country of origin of the
article. Congressional intent in enacting 19 U.S.C. 1304 was “that the ultimate purchaser should be able to
know by an inspection of the marking on the imported goods the country of which the goods is the product.
The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by
knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should
influence his will.” See United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 (1940).
Part 134 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 CFR 134) implements the
country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.1(b), CBP
Regulations (19 CFR 134.1(b)), defines “country of origin” as the country of manufacture, production, or
growth of any article of foreign origin entering the United States. 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 the meaning of the marking laws and regulations.
A substantial transformation occurs when, as a result of manufacturing, a new and different article emerges,
having a distinct name, character or use, which is different from that originally possessed by the article or
material before being subjected to the manufacturing process. See United States v. Gibson-Thomsen Co.,
Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940).
In the present case, wafer cones are wholly manufactured in Indonesia by baking a wafer cone mix,
compressing via a roller mold, cooling, cutting and forming into cones. The manufacturing process of
creating the baked good that will hold the filling is essential to the manufacture of the finished product,
“SKIPPY® Peanut Butter Wafer Mini Cones.” The finished product is also manufactured in Indonesia by
first processing the peanut butter from China, rice crispy crumbs from Indonesia, lecithin from Brazil and
antioxidant from India into a “peanut slurry” subsequent to processing the chocolate compound from
Indonesia and filling the wafer cones with the peanut butter slurry and the chocolate compound. The
manufacturing operations in Indonesia will result in a substantial transformation creating a product with a
different name, character, or use - a finished, shelf-stable, retail-ready baked snack. Accordingly, the country
of origin of the product is Indonesia.
Additionally, you submitted photographs of the product imaging and labeling/marking. On the rear of the
packaging, under the nutrition facts and ingredient information and to the right of the product barcode, the
phrase “Distributed by Hormel Foods Sales, LLC 1 Hormel Place Austin, MN 55912,” and “Product of
Indonesia” appear in white font comparable to the surrounding text which include a website and telephone
number. In this regard, we note that Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases
in which the words “United States,” or “American,” the letters “U.S.A.,” any variation of such words or
letters, the name of any city or locality in the United States, or the name of any foreign country or locality
other than the country or locality in which the article was manufactured or produced, appears on an imported
article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to
the actual country of origin. In such a case, there shall appear, legibly and permanently, in close proximity to
such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by
“Made in,” Product of," or other words of similar meaning. Accordingly, in close proximity and in a
comparable size to the words “Austin, MN, the product label must be marked to indicate that the wafer cones
are “Made in,” “Product of,” or other words of similar meaning, Indonesia. Because the proposed marking as
set forth in the product labeling provided does feature a marking “Product of Indonesia” in close proximity
and in a comparable size to the geographic name “Austin, MN,” the marking will satisfy the statutory
requirements of 19 C.F.R. § Part 134.
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 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.
The duties cited above are current as of this ruling’s issuance. 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/.
This ruling does not address the applicability of any additional duties, taxes, fees, exactions and/or other
charges, which may apply to the goods discussed herein. This includes, but is not limited to, tariffs and other
duties as provided for in Subchapter III to Chapter 99, HTSUS. Thus, for example, in addition to the
classification stated above, the merchandise covered by this ruling may also need to be reported with either
the Chapter 99 provision under which an additional tariff applies or one of the Chapter 99 provisions
covering exceptions to such tariffs.
For further information to assist with the importation process, please refer to the frequently updated Cargo
Systems Messaging Service (CSMS) messages at
https://www.cbp.gov/trade/automated/cargo-systems-messaging-service and Frequently Asked Questions on
the Trade Remedy/IEEPA page at
https://www.cbp.gov/trade/programs-administration/trade-remedies/IEEPA-FAQ.
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 Timothy Petrulonis at [email protected].
Sincerely,
(for)
Evan Conceicao
Designated Official Performing the Duties of the Division Director
National Commodity Specialist Division