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HQ 083305


July 31,1989

CLA-2 CO: R: C:G 083305 JGH

Category: CLASSIFICATION

TARIFF NO.: 2106.90.60, HTSUS

Robert D. Stang, Esq
Grunfeld, Desiderio, Lebowitz, & Silverman 12 East 49th St
New York, N.Y. 10017

RE: Classification of a mixture of vanillin and cocoa butter

Dear Mr Stang:

This is in response to your inquiry of December 27, 1988, on the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a product used in the manufacture of chocolate confectionaries.

FACTS:

Product 600-B is said to be a mixture of 11.8% vanilla oleoresin and 88.2% pressed cocoa butter. It is said to be used in the manufacture of chocolate confectionaries. A Customs laboratory report described the product as a mixture of cocoa butter and vanillin.

ISSUE:

Whether a mixture of vanillin and cocoa butter is classifiable as a mixture of odoriferous substances of a kind used in the food or drink industries, not containing alcohol, in subheading 3302.10.10, HTSUS, or the provision for other food preparations not elsewhere specified or included in subheading 2106.90.6090, HTSUS.

LAW AND ANALYSIS:

It is contended that the product is an odoriferous substance used by chocolate manufacturers,and therefore it is most specifically classified in heading 3302, HTSUS. Statements were submitted from German and France Customs authorities supporting this opinion.

Classification in the HTSUS is governed by the General Rules of Interpretation (GRIs'). GRI I provides that the classification is determined first in accordance with the headings and relative Section and Chapter notes. The Explanatory Notes to Heading 2106 point out that the preparations covered include those consisting of chemicals with foodstuffs for incorporation in food preparations either as ingredients or to improve some of their characteristics.

The Explanatory Notes to Chapter 33 states that the heading covers mixtures of a kind used as raw materials in food or drink industries ( e.g., confectionary, food or drink flavorings), but does not indicate the mixture would include an acknowledged food ingredient such as cocoa butter, especially where it comprises 88 percent of the imported article. Typically listed in chapter 33 are resinoids, aromatics and other chemicals.

While the claim is made that the cocoa butter is a carrier for the vanillin. It is not considered such by the industry. Cocoa butter is commonly used in making chocolate confectionaries, not as an inert ingredient or carrier for vanillin, but because it provides the necessary and desired texture and smoothness for the end product. While vanillin is a necessary flavoring component, cocoa butter is also a required ingredient. The imported material is clearly of a type contemplated to be included in heading 2106.

Holding:

A mixture of 11.8 percent vaninllin and 88.2 percent cocoa butter is classified in subheading 2106.90.6090, HTSUS. The rate of duty is 10 percent ad valorem.

Sincerely,

John Durant, Director

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