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HQ 083895

June 21, 1989

CLA-2 CO:R:C:G 083895 SS; 837204


TARIFF NO.: 2106.90.60

William J. Maloney, Esq.
Rode & Qualey
295 Madison Avenue
New York, New York 10017

RE: Tariff classification of liquid meal.

Dear Mr. Maloney:

This is in response to your letter dated February 17, 1989, on behalf of Corpak, Inc., addressed to our New York office, requesting a tariff classification for products designated Entralife and Entralife HN, imported from Canada, under the Harmonized Tariff Schedule of the United States (HTSUS).


The products under consideration are designated Entralife and Entralife HN, both products hereinafter referred to as "Entralife". It is stated that Entralife is a vanilla flavored liquid meal replacement product, formulated to provide a complete, balanced nutrition for patients requiring a complete high protein diet.

It is stated that Entralife is marketed primarily for patients who, because of physical impairment, are unable to drink the product without assistance and require tube feeding. The product will be packed in 1 liter and 250 milliliter Tetra Brix packages of the type commonly used for the packaging of meal replacement and other types of beverages. The packages are also compatible with tube feeding administration sets that incorporate a tube that is led through the patient's nose and esophagus to the stomach. Entralife, which is not imported with the tube feed apparatus, will be sold through distributors to hospitals, nursing homes, and other health care facilities.

It is further stated that Entralife is in chief value of caseinates and contains all the vitamins, minerals, protein, fiber and other constituents recommended for nutritional purposes. The manufacturing processes in the production of Entralife include blending measured quantities of dry ingredients, heating and mixing dry ingredients and liquid components, aseptic processing and packaging.


Whether Entralife is classifible in subheading 2202.90.9090, as other, other beverages, in subheading 3004.50.40, as other medicaments containing vitamins, or in subheading 2106.90.60, as food preparation not elsewhere specified or included,.


Classification under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification is determined first in accordance with the terms of the headings and any relative Section or Chapter notes.

Counsel claims that Entralife is a liquid suitable for drinking and is within the common meaning of the statutory term "beverage". Based on this claim, counsel proposes that Entralife is properly classifiable under subheading 2202.90.9090, HTSUS. Counsel also claims in the alternative that the subject merchandise is properly classifiable under subheading 3004.50.40, HTSUS.

Heading 2202, HTSUS, 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 constitute the official interpretation of the tariff at the international level. The Explanatory Notes to heading 2202, HTSUS, state that this heading includes sweetened or flavored mineral waters (natural or artificial); beverages such as lemonade, orangeade, cola, consisting of ordinary drinking water, sweetened or not, flavored with fruit juices or essences, or compound extracts; tamarind nectar ready for consumption as a beverage by the addition of water and sugar straining; and certain other beverages ready for consumption, such as those with a basis of milk or cocoa. These notes further state that medicaments of heading 30.03 or 30.04.

Webester's Third New International Dictionary (unabridged) (1965), defines "beverage" as:

1: liquid for drinking esp: such liquid other than water (as tea, milk, fruit juice, beer) usu. prepared (as by flavoring, heating, admixing) before being consumed.

The term "beverage" is not defined in heading 2202, HTSUS, or in the Explanatory Notes to this heading. Further, neither the dictionary definition nor the above statutory language supports the claim, or even suggests that a liquid food product such as Entralife is within the common meaning of the statutory term "beverage". The above language indicates that beverages are sweetened or flavored waters, or extracts or juices of fruits etc., and liquids which are predominantly used as beverages.

In view of the foregoing, Entralife is not properly classifiable under heading 2202, HTSUS.

Heading 3004, HTSUS, provides for medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale.

Note 1(a) to Chapter 30, HTSUS states that the chapter does not cover "food or beverages (such as dietetic, diabetic or fortified foods, food supplements, tonic beverages and mineral waters) (section IV)."

The Explanatory Notes to heading 3004 provide that the heading does not apply to foodstuffs or beverages such as dietetic, diabetic or fortified foods, tonic beverages or mineral waters, which are classified under their own appropriate headings. Food preparations containing only nutritional substances are among those foodstuffs or beverages. The Notes further state that the major nutritional substances in food are proteins, carbohydrates and fats, and that vitamins and mineral salts also play a role in nutrition. The heading excludes food supplements containing vitamins or mineral salts which are put up for the purpose of maintaining health or well-being, but which have no indication as to use for the prevention or treatment of any disease or ailment. The Explanatory Notes also state that foodstuffs or beverages containing medicinal substances are excluded from the heading if those substances are added solely to ensure a better dietetic balance, to increase the energy-giving or nutritional value of the product or to improve its flavor, provided that the product retains its character as a food stuff or beverage.

Heading 2106, HTSUS, provides for food preparations not elsewhere specified or included. Note 1(f) to Chapter 21 states that the chapter does not cover products of heading 3003 or 3004.

Explanatory Note (B) (16) to heading 2106, states that the heading covers preparations referred to as food supplements which are "based on extracts from plants, fruit concentrates, honey, fructose, etc.", and which contains added vitamins. The note further states that these preparations are often put up in packaging with indications that they maintain general health or well-being. Excluded from this heading are similar preparations intended for the prevention or treatment of diseases or ailments. Such preparations are classifiable in heading 3003 or 3004, HTSUS.

The facts submitted do not indicate any therapeutic or prophylactic uses, nor the presence of any medicinal substances in Entralife. The primary function of Entralife is nutritional. It is administered for the complete or supplemental nutrition of persons, who, due to various medical conditions, cannot or are unable to eat ordinary meals, or who require special or supplemental nutritional support.

Applying the above chapter notes and explanatory notes, we find that Entralife is not classifiable under heading 3004, HTSUS, because these products are essentially foodstuffs having primarily a nutritional function, and containing only nutritional substances, such as proteins, carbohydrates, and fats, vitamins and minerals.

Entralife is a food replacement in liquid form and is properly classifiable under the provision for foods.


In view of the foregoing, Entralife is properly classifiable in subheading 2106.90.60, HTSUS, as food preparations not elsewhere specified or included, dutiable at a rate of 10 percent ad valorem.


John Durant, Director

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