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HQ 081382

December 1, 1988

CLA-2 CO:R:C:G 081382 JGH


TARIFF NO.: Item 146.24 to 150.05; 153.03 to 153.32 TSUS

District Director of Customs
2039 Federal Office Building
909 First Avenue
Seattle, Washington 98174

RE: Tariff Classification of fruit spreads; Internal Advice No. 32/87

Dear Sir:

This decision concerns the tariff classification of certain fruit spreads.


The spreads, products of Denmark, are said to be produced in the following manner:

(1) Half of the sugar, in the form of refined sugar, is melted in kettles.

(2) Fruit and the other half of the sugar (glucose syrup) are added and the mixture heated and stirred continuously.

(3) Pectin in solution is added.

(4) Citric acid in solution is added to adjust acidity.

(5) Potassium sorbate is added as a preservative.

Water is added in the amount of 4 to 6 percent in order to dissolve the pectin, citric acid and potassium sorbate.

The proportion of the ingredients in the mixture are said to be 40 percent fruit to 28 percent sugar and 25 percent glucose syrup. This fruit mixture is cooked until thickened.


The issue is whether the fruit spreads are classifiable as jams in items 153.03 to 153.32, TSUS, or prepared or preserved fruits in items 146.24 to 150.05, TSUS. It is also asked whether a lower sugar content or the addition of water would affect classification.


The Summaries of Trade and Tariff Information, Schedule 1, Vol. 8 (1969), p. 267, states that the Food and Drug Administration (FDA) has established standards of identity for preserves and jams. For jams and preserves it provides a weight of 45 percent fruit and 55 per cent sugar. The summaries also state that if the fruit is processed and packed in a manner which substantially retains the shape of the fruit, then it is dutiable as a preserve under the provision for prepared or preserved fruits. Conversely, it is noted that a jam is defined as a product made by boiling fruit and sugar to a thick consistency without preserving the shape of the fruit. The summary adds that an imported product properly labeled as a jam by FDA standards may be dutiable as a preserved fruit; similarly some imported products labeled as a "preserve," may be dutiable as a jam. The court in Julius Goldfarb v. United States, C.D. 2560 (1965) stated that the tariff summaries and the FDA standards were both accepted as evidence that is to be weighed with other evidence. In the FDA regulations, 21 CFR 150.160, fruit preserves and jams are described as viscous or semi-solid foods, mixtures composed of specified fruit ingredients and one or any combination of optional specified ingredients. The fruit ingredients have to be at least 45 percent. The regulations also permit the addition of nutritive carbohydrate sweeteners, pectin preservatives and certain other additives. The addition of water is also permitted.

Although it is often stated that Customs is not bound by the rulings or regulations of other agencies, it is noted here that both the Customs court and the tariff summaries quote with approval the FDA definition of jams and preserves. The tariff summaries differ from the FDA standards in one significant aspect: the former require that identifiable pieces of fruit be present to distinguish the preserve from the jam.

While Customs has adhered to traditional definition of jams and preserves in listing sugar as the only sweetener, the FDA standards, in listing what is referred to as safe and suitable optional ingredients, include nutritive carbohydrate sweeteners. In view, therefore, of current processing methods the addition of glucose syrup to the product would not remove it from the category of jam or preserves; nor is it believed that the addition of water to the extent indicated would affect the classification, noting the FDA's standard that jams or preserves are mixtures with or without water.

To establish that the products are classifiable as jams in items 153.03 - 153.32, TSUS, it would have to be demonstrated that a product was made by boiling the ingredients to a thick consistency, without preserving the shape of the fruit.

In any examination of samples of this type of product there is an element of subjectivity, and in this case both the import specialist at the port and the national import specialist agreed that the products had recognizable pieces of fruit and, in some cases, whole berries were found. Therefore, the products would be classified as prepared fruits as follows:

Fruit-Berry Item No. Duty

Apricot 146.24 35% ad valorem
Black Currant 146.82 7% ad valorem
Raspberry 146.84 7% ad valorem
Strawberry 146.85 14% ad valorem
Blackberry 146.86 14% ad valorem
Black Cherry 146.99 7 cents per lb.+10% ad valorem
Orange 147.31 1 cent per lb.
Peach 148.78 20% ad valorem
Pineapple 148.98 .25 cent per lb.
Mixed Fruit 150.02 7% ad valorem
Pinecot 150.05 17.5% ad valorem

Under the Harmonized Tariff Schedule of the United States you suggest that the products are classifiable as jams, being cooked preparations, whether or not containing sugar or other sweeteners in heading 2007.99 - 2007.99.45.00. However, the Explanatory Notes for heading 2007 state that jams are made by boiling whole fruit or fruit pulp with sugar in approximately equal proportions. In this case the fruit spreads contain 40 percent fruit and 53 percent sweeteners. This is not believed to be "approximately equal proportions."


Therefore the products are classifiable as follows under the provision for fruit, otherwise prepared or preserved, whether or not containing sugar or other sweetening matter:

Product Heading Duty

Apricot 2008.50.4000 35% ad valorem
Black Currant 2008.99.2000 7% ad valorem
Raspberry 2008.99.2000 7% ad valorem
Blackberry 2008.99.2000 7% ad valorem
Black Cherry 2008.60.0000 15.4 cents/kg+10% ad valorem
Strawberry 2008.80.0000 14% ad valorem
Orange 2008.30.4000 2.2 cents/kg
Peach 2008.70.0000 20% ad valorem
Mixed Fruit 2008.92.1000 7% ad valorem
Pinecot 2008.92.9090 17.5% ad valorem.


John Durant, Director

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