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HQ 084864

October 10,1989
CLA-2 CO:R:G 084864 H
Tariff No.: 2008.92.90

Mr. Jeffrey H. Pfeffer
Fritz Companies, Inc.
40 Exchange Place, 12th Floor
New York,NY 10005

RE: Fruit Snacks

Dear Mr. Pfeffer:

Your letter of June 12, 1989, concerns New York Ruling Letter (NYRL) 837674, dated March 12,1989, which involved the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of Okanagan Fruit Snacks.

The samples submitted were flat, rectangular semi-solid forms, about 4 inches in length, 2-1/4 inches in width, and 1/2 ounce in weight, and packaged in cellophane wrapper. They are said to be composed of an apple concentrate base, which is flavored with apricot, peach, raspberry, strawberry, or sour cherry paste, with added apple fiber and a small amount of lemon flavor for tartness. The label advertises the snacks as being "'All Fruit' No Sugar Added."


Whether Okanagan Fruit Snacks are classifiable as sugar confections in subheading 1704.90.20, HTSUS, or under the heading for other mixtures of fruit, nuts, and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included, in subheadings 2008.92.9090, HTSUS, or 2008.99.0500, HTSUS, depending on the flavor.


While it is admitted that there is no added sugar in the products, it is claimed that they are, nonetheless, sugar confectionaries, because the apple concentrate supplies the added sugar in the form of fructose.

Classification of merchandise 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 and Chapter Notes. The Explanatory Notes, which should be consulted for guidance in the interpretation of the provisions of the HTSUS, state, in regard to heading 1704, "Sugar Confectionary..", that the heading covers most of the sugar preparations which are marketed in solid or semi-solid form, generally suitable for immediate consumption and collectively referred to as sweetmeats, confectionary or candies. The products covered in the heading are said to contain sugar or to be based on sugar. In support of classification of a confectionary, Leaf Brands, Inc., v. United States, 70 Cust. Ct. 66, ( C.D. 4409) (1973), is cited. However, the product in issue in that case involved one which was 95 percent dextrose with flavoring added. In other words, the product was virtually all sugar. In contrast, the fruit snacks do not contain added sugar, but contain apple juice concentrate as the sweetening agent. Apple juice concentrate is classifiable as apple juice in subheading 2009.70.00, HTSUS, and not as a flavored syrup in 2106.90.50, HTSUS. Customs defines a fruit syrup as a fruit juice to which 50 percent sugar has been added and has at least 33-1/3 pure fruit juice.

In addition it is claimed that another reason for classifying the snacks in heading 1704 is that the Explanatory Notes mention that fruit pastes put up in the form of a confectionary are classifiable in that heading. The notes describe fruit pastes as being evaporated purees of solid or almost solid consistency. Fruit purees are prepared by boiling sieved fruit pulp with or without sugar to a solid consistency. There is no indication that the fruit snacks were initially pureed. Regardless of whether or not they were, the composition of the finished snacks takes them out of the category of fruit pastes.

It is also argued that the snacks are not to be included in heading 2008 because the products provided for in the heading are usually in "whole, in pieces or crushed" and the fruit snacks are in a semi-solid paste form. Included in the examples of foods classifiable in heading 2008 is peanut butter, which generally considered to be in a paste form. Therefore, upon review of all of the classification possibilities, heading 2008 appears the most specific.


Okanagon Fruit Snacks are classifiable in heading 2008.92.90, HTSUS, except for apple cinnamon flavor which is classifiable in subheading 2008.99.0500, HTSUS.

NYRL 837694 is affirmed.


John Durant, Director

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