Nutritional food preparations

HQ 089038 July 31, 1991 CLA-2 CO:R:C:F 089038 EAB CATEGORY: Classification TARIFF NO.: 2106.90.6099 Mr. Roy Zegers 2/6 Brittain Crescent Hillsdale, New South Wales 2036 Australia Re: Nutritional food preparations Dear Mr. Zegers: This is in reply to your March 28, 1991 letter in which you request a binding ruling on the tariff classification of a nutritional food preparation under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Although no sample was submitted, you provided a description of the product, including the ingredients. FACTS: The product will be packaged in 400 gram glass jars, two dozen jars to a carton. Each jar will contain, in a mixture, 291 grams of natural honey, 100 grams of bee pollen and 9 grams of royal jelly. We shall assume for purposes of this ruling that the product is a viscous liquid preparation intended for human consumption as a "natural" or "health" food. ISSUE: Whether nutritional preparations containing plant- or animal-based extracts, including honey and royal jelly in any proportion, are classifiable in heading 2106, HTSUSA, as food preparations not elsewhere specified or included under other headings in the schedule. LAW AND ANALYSIS: The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order. 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 on 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." See Explanatory Notes (5) & (16) to heading 2106, HTSUSA. Customs is of the opinion that prepared foods not elsewhere specified or included under other headings in the schedule, particularly preparations containing honey and royal jelly in any proportional amounts, intended for human consumption as health or nutritional products, are properly classifiable under heading 2106, HTSUSA. To this end, see HQ 084981, dated June 19, 1990 (preparation of 207 grams of pure honey, 11 grams of bee pollen, 5 grams of royal jelly and 4 grams of natural vitamin C), and HQ 086744, dated June 19, 1990 (containing 60 percent water, 5 percent ginseng, 5 percent royal jelly and 30 percent honey, put up in vials and marketed as a nutritional health supplement). HOLDING: A food preparation containing 291 grams of natural honey, 100 grams of bee pollen and 9 grams of royal jelly is classifiable under subheading 2106.90.6099, HTSUSA, which provides for food preparations not elsewhere specified or included, other, other, other, other, other, and is dutiable at the general rate of 10% ad valorem. Sincerely, John Durant, Director Commercial Rulings Division