Nutritional food preparation

HQ 086744 June 19, 1990 CLA-2 CO:R:C:G: 086744 RFC CATEGORY: Classification TARIFF NO.: 2106.90.6099 Mr. Ken Yeung Prince of Peace Enterprises, Inc. 3450 Third Street, Suite 3G San Francisco, CA 94124 RE: Nutritional food preparation Dear Mr. Yeung: This ruling letter is in response to your request of February 23, 1990, on behalf of Prince of Peace Enterprises, Inc., concerning the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a nutritional food preparation. The product is imported from China and samples were submitted for examination. FACTS: The product is identified as Chinese Red Panax Ginseng Extractum with Royal Jelly. It contains water (60%) and the following plant- and animal-based extracts: ginseng (5%), royal jelly (5%), and honey (30%). The product is sold in vials and is marketed as a nutritional health supplement. ISSUE: Whether a nutritional preparation containing plant- or animal-based extracts--including honey, royal jelly, and ginseng in whatever proportional amounts--is classified under heading 2106 in the HTSUSA as food preparations not elsewhere specified or included under other headings in the HTSUSA. LAW AND ANALYSIS: Classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...." Heading 2106 provides for food preparations not elsewhere specified or included under other headings in the HTSUSA. The Explanatory Notes to heading 2106 state that this heading includes, inter alia, "[n]atural honey enriched with bees' royal jelly [and] [p]reparations, often referred to as food supplements, based extracts from plants, fruit concentrates, honey, fructose etc....[,] [which] are often put up in packagings with indications that they maintain general health or well-being" (emphasis in original). See Explanatory Notes (5) and (16) to heading 2106, HTSUSA. It is clear, then, that prepared, food substances (whether in liquid or solid or capsule form) not elsewhere specified or included under other headings in the HTSUSA, particularly substances containing, among other things, plant- and animal-based extracts (e.g., honey, royal jelly, and ginseng in whatever proportional amounts) and prepared specifically for health or nutritional purposes, are classified under heading 2106 of the HTSUSA. Heading 2202 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. The Explanatory Notes to heading 2202 state that this heading covers nonalcoholic beverages and includes, inter alia, "[b]everages such as lemonade, orangeade, cola...[which] are generally presented in bottles or other airtight containers...[and] ...[c]ertain other beverages ready for consumption, such as those with a basis of milk and cocoa." It is evident, then, that beverages, as the term is contemplated by this heading, consist of drinkable liquid substances which are marketed, sold, or dis- tributed in multi-ounce containers (e.g., bottles) for consumption in significant (i.e., multi-ounce) and non-measured (e.g., not marketed, sold, or distributed in dosage form or in vials) quantities, and not necessarily consumed for strictly health or nutritional purposes (e.g., colas). Accordingly, food preparations in liquid form, containing, among other things, honey, royal jelly, and ginseng (in whatever proportional amounts), marketed, sold, or distributed in vials or other like containers for consumption in small, measured, or dosage-form quantities, and taken for nutritional or health purposes would, most certainly, not be classified as "beverages" under heading 2202 of the HTSUSA. Heading 0410 provides for (1) edible products of animal origin (i.e., animal products in an unprocessed or unprepared state, e.g., turtles' eggs and salanganes' nests--see Explanatory Notes to heading 0410) that are (2) not elsewhere specified or included under other headings in the HTSUSA. Nutritional food preparations containing various types of plant- or animal-based extracts, including, among other things, honey, royal jelly, and ginseng (in whatever proportional amounts), would not be classified under heading 0410 because such items are, quite obviously, something more than mere "edible products of animal origin" (as such items are preparations that contain various ingredients--including, among other things, edible products not of animal origin--some or all of which have been processed or prepared). In light of the above, we conclude that the above-described product is classified under heading 2106, HTSUSA, as this product is a simply nutritional and healthful food preparation consumable by humans and not elsewhere provided for or included under other headings in the HTSUSA. HOLDING: The above-described product is classified under subheading 2106.90.6099, HTSUSA, which provides for food preparations not elsewhere specified or included, other, other, other, other, other. The rate of duty under this subheading is 10% ad valorem. In your request you state that there are products similar to the above-described product being imported into the United States at a rate of duty less than that listed above. If you are aware of a comparable product which to the best of your knowledge is being misclassified, we would appreciate learning the name of the product, the name of the importer, the subheading under which the product is being entered, and the districts in which the product is being imported. This information should help Customs meet its legal obligation of charging uniform duties on products wherever imported. Sincerely, John Durant, Director Commercial Rulings Division