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HQ 084708

July 21, 1989

CLA-2 CO:R:C:G: 084708 DPS 830372


TARIFF NO.: 2206.00.9000

Mr. Henri Berthe
H & D Importers
25 Ridgeway
Greenwich, Connecticut 06831

RE: HTSUSA classification of fermented malt beverages described as "Wildberry" and "Raspberry French Sparklers."

Dear Mr. Berthe:

Your letter of May 18, 1989, regarding the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of fermented malt beverages from France, labelled "French Sparkler," has been referred to this office for a ruling. Samples were included with your letter.

Your inquiry requested "reconsideration" of New York Ruling 830372, dated June 24, 1988. That ruling addressed classification of the beverages under the Tariff Schedules of the United States (TSUS), which, since January 1, 1989, has been superceded by the HTSUSA. New York ruling 830372 further advised you of the classification of the beverages under the HTSUSA, subheading 2206.00.9000, the provision for "other fermented beverages: other," with a reservation of its applicability, pending changes in the HTSUSA prior to enactment. We now confirm the earlier New York ruling.


The subject merchandise requiring classification consists of 300 ml. bottles of fermented malt beverage, described as "Wildberry" and "Raspberry." The label of each bottle includes the words "French Sparkler." These products are manufactured in France and sold under the "Jean Laurent" and "Rene La France" brand names.

The importer asserts that the beverages at issue are nothing more than flavored beer and should be classified under the general beer category, subheading 2203.00.0000, HTSUSA. Our New York office classified the merchandise under the "other fermented beverages: other" category, subheading 2206.00.9000, HTSUSA. This inquiry has been submitted to Headquarters for a final ruling on the matter.


Whether the fermented malt beverages described as "Wildberry" and "Raspberry French Sparkler," are properly classifiable as beer made from malt under subheading 2203.00.0030, HTSUSA; or as other fermented beverages, other, under subheading 2206.00.9000, HTSUSA.


The General Rules for the Interpretation of the Harmonized System (GRI's) govern classification under the Harmonized Tariff Schedule. According to GRI 1, the primary consideration in determining whether merchandise should be classified in a heading should be given to the language of the heading and any relevant chapter or section notes. The subheadings at issue in this case are:

(a) 2203.00.0030, HTSUSA, beer made from malt, in containers each holding not over 4 liters: in glass containers; and

(b) 2206.00.9000, HTSUSA, other fermented beverages: other.

If the "French Sparkler" products are considered to be beer, as the importer argues, then subheading 2203.00.0030 would apply. If not, then subheading 2206.00.9000 is proper. The importer asserts that because the method of manufacturing is similar to the process used in making beer, the "French Sparklers" should be classified as beer.

The method of manufacturing the subject merchandise is stated to begin with the fermentation of degenerated malt cereals and hops to reduce foaming and natural bitterness. Sugar is added to bring the alcohol content to 6 percent. The product is agitated, and then goes through "ultra-filtration." It is stored in 20,000 liter tanks, and then fructose, colorant red #40 and quest flavor #RD54689 are added. The tartaric and citric acid are adjusted, and sodium benzoate is added as a preservative. Carbon dioxide is then adjusted and the product undergoes EK 70 filtration, filling/bottling, tunnel pasteurization and labelling.

The Explanatory Notes to the HTSUSA constitute the official interpretation of the tariff at the international level. The Explanatory Notes for heading 2203, HTSUSA, describe beer as an alcoholic beverage obtained by fermenting a liquor (wort) prepared from malted barley or wheat, water and hops. The Notes further state:

Certain quantities of non-malted cereals may also be used for the preparation of the liquor (wort). The addition of hops imparts a bitter and aromatic flavour and improves the keeping qualities. Cherries or other flavouring substances are sometimes added during fermentation.(Emphasis added).

Sugar (particularly glucose), colouring matter, carbon dioxide and other substances may also be added.

The beverages at issue are produced using degenerated (old) malt cereals and hops, which are not normally used in manufacturing beer. Another distinguishing factor between beer and the "French Sparkler" is the point at which flavoring is added. For beer, flavorings are added during fermentation. This product is produced by first manufacturing a bland malt product, and then adding flavoring after fermentation.

With regard to appearance and marketing of beer, the Explanatory Notes further provide:

Beer may be pale or dark, sweet or bitter, mild or strong. It may be put up in barrels, bottles or in airtight tins and marketed as ale, stout, etc.

The beverage at issue is bottled and labelled as "French Sparkler," in an effort to compete in the wine cooler market. It is distinct from beer. It does not have the taste, aroma, character or appearance of beer. It is neither commercially, nor commonly known as beer. Its market focus is on the wine cooler market, not the beer market, as evidenced by its label, appearance and packaging.

The factors discussed above are sufficient to distinguish the subject merchandise from beer. The differences in manufacturing, coupled with the product's unique commercial identity, make classification under subheading 2206.00.9000 appropriate.


The fermented malt beverages described as "Wildberry" and "Raspberry French Sparkler" are properly classifiable under the provision for other fermented beverages, other, in subheading 2206.00.9000, HTSUSA. Classification under this subheading imposes a 100 percent ad valorem duty rate under item 9903.23.25, HTSUSA, because the product contains less than 7 percent alcohol by volume, and is a product of France, a member of the European Community. If the importer can establish that the goods at issue were shipped (exported from France) before January 1, 1989, and that the goods were entered or withdrawn from warehouse for consumption before February 1, 1989, then, the particular importation would not be subject to the 100% ad valorem tariff pursuant to 9903.23.25, HTSUSA. That tariff was suspended, but, such suspension has since been terminated. Accordingly, any subsequent importations of the goods at issue here are subject to the 100% ad valorem tax. The exception described above only applies if the two criteria, shipping before January 1, 1989, and entry or withdrawal from warehouse for consumption before February 1, 1989, are satisfied.

Due to the possibility of further suspensions of the applicable tariff provision affecting selected imports from the European Community, and the possibility of further developments impacting such importations, local Customs offices should be contacted prior to importing the merchandise to determine the current applicability of 9903.23.25, HTSUSA.


John Durant, Director
Commercial Rulings Division

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