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HQ 088756

April 8, 1991

CLA-2 CO:R 088756 MBH


TARIFF NO. 2009.11.00

Ms. J.A. Burkham
Customs Administrator
The Procter and Gamble Company
P.O.Box 599
Cincinnati, Ohio 45201

RE: HTSUSA classification of orange juice with calcium

Dear Ms. Burkham:

This is in response to most recent submissions of December 3, 1990, and December 17, 1990, requesting a ruling concerning the tariff classification of calcium enriched frozen orange juice concentrate for manufacture.


The merchandise at issue is frozen concentrated orange juice for manufacturing (FCOJM). In this instance, however, the FCOJM is supplemented with calcium for nutritional purposes. Specifically, 670 milligrams of calcium in the form of calcium hydroxide is to be added to 100 grams of 65 degree Brix FCOJM. Calcium amounts to approximately 6 tenths of one percent of the imported product by weight. Since calcium is present in trace amounts in oranges, this amount added represents thirteen times the amount normally found in the product.

In addition to the calcium added, citric and malic acid are added to the mixture. The reason for the addition of these acids is stated to be to counter the undesirable flavor effects of the added calcium, to increase the physical stability of the orange juice and to help prevent the precipitation of the calcium. Most of the additional acid added is neutralized. Thus in terms of the free acid present in the product, it is claimed that there is actually slightly less acid than is normally present in FCOJM to which calcium has not been added. A patent for the process of adding the calcium has been obtained.

After importation, the product is mixed with orange oil, orange essence, pulp and water to make orange juice at retail. In all but one state of the United States, the product is marketed at retail as 100 percent orange juice fortified with calcium.

The classification of this product under the Harmonized System has been the subject of two decisions of the Harmonized System Committee of the Customs Cooperation Council (CCC) in Brussels. At its fourth session in October 1989, the Committee determined that this product was classifiable in heading 2106 as a food preparation not elsewhere specified or included rather than in heading 2009 as orange juice. The United States was among those contracting parties which voted for classification in heading 20.09. Subsequent to the decision, the United States entered a reservation to the decision of the Harmonized System Committee, pursuant to Article 8 of the Harmonized System Convention. In accordance with Article 8, the CCC referred the question back to the Harmonized System Committee for reexamination at its sixth session in October 1990. At that session, the Committee reaffirmed its prior decision.


Whether the addition of calcium to orange juice as a nutritional supplement is consistent with classification of the product as orange juice within the meaning of heading 20.09, Harmonized Tariff Schedule of the United States (HTSUS).


Heading 20.09, HTSUS provides in pertinent part for fruit juices whether or not containing added sugar or other sweetening matter. The merchandise at issue is commercially known as frozen concentrated orange juice for manufacturing. It therefore is prima facie within the scope of heading 20.09.

The importer claims that this product is not classifiable as orange juice but rather is classifiable in heading 2106 as a food preparation not elsewhere specified or included. It is clear that under Rule 1 of the General Rules of Interpretation to the Harmonized Tariff Schedule, if heading 2009 may be said to describe the merchandise, heading 2106 is inapplicable because the merchandise is elsewhere specified. Thus the pivotal question is whether the product is within the scope of heading 20.09.

The importer's position is based on his interpretation of the Explanatory Notes to heading 20.09. In a Federal Register

Notice dated August 23, 1989, the Customs Service cited the following portion of the report of the Joint Committee on the Omnibus Trade and Competitiveness Act of 1988:

The Explanatory Notes constitute the Customs Cooperation Council's official interpretation of the Harmonized system. They provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system.

The Explanatory Notes were drafted subsequent to the preparation of the Harmonized System nomenclature itself, and will be modified from time to time by the CCC's Harmonized System Committee. Although generally indicative of proper interpretation of the various provisions of the Convention, the Explanatory Notes, like other similar publications of the Council, are not legally binding on contracting parties to the Convention. Thus while they should be consulted for guidance, the Explanatory Notes should not be treated as dispositive.

54 Fed Register at 35128.

The relevant portion of the Explanatory Notes to heading 20.09 provides as follows:

Provided they retain their original character, the fruit or vegetable juices of this heading may contain substances of the kinds listed below, whether these result from the manufacturing process or have been added separately:

(1) Sugar.

(2) Other sweetening agents, natural or synthetic, provided that the quantity added does not exceed that necessary for normal sweetening purposes and that the juices otherwise qualify for this heading, in particular as regards the balance of the different constituents (see Item (4) below).

(3) Products added to preserve the juice or to prevent fermentation (e.g., sulphur dioxide, carbon dioxide, enzymes).

(4) Standardizing agents (e.g., citric acid, tartaric acid) and products added to restore constituents destroyed or damaged during the manufacturing process (e.g., vitamins, colouring matter) or to fix the flavor (e.g. sorbitol added to powdered or
crystalline citrus fruit juices). However, the heading excludes fruit juices in which one of the constituents (citric acid essential oil, extracted from the fruit, etc.) has been added in such quantity that the balance of the different constituents as found in the natural juice is clearly upset; in such case the product has lost its original character.

(Emphasis in original)

The importer claims that the addition of calcium to the product upsets the balance of the constituents in the juice within the meaning of the Explanatory Note. The addition of the citric and malic acid is also claimed to have this effect.

The Explanatory Notes to heading 20.09 provide examples of a change in the balance of the constituents. For example, where more water than is necessary to reconstitute the juice is added, a diluted product having the character of a beverage of heading 22.02 such as orangeade or orange drink generally results. Similarly, the addition of more carbon dioxide than is normally present in the juice generally creates a product which is carbonated fruit juice and is no longer commercially known as juice. Thus where a substance has been added to give the product the character of a product of another heading, the product is no longer classifiable in heading 20.09.

The addition of citric and malic acid do not have an effect comparable to the foregoing examples. The brix-acid ratio, the balance between the titratable acid content and the sugars in the instant product is 19.3 which is consistent with U.S. Department of Agriculture standards for orange juice at retail. Of equal significance, the citric and malic acid added to the product in addition to making the calcium available nutritionally, act as a standardizing agent to balance the taste of the calcium that is, in order to fix the flavor of the product to be indistinguishable from orange juice to which calcium has not been added. As the patent for the process makes clear, "the ratio of citric acid to malic acid is selected to provide the optimum flavor character in the juice" that is, to mirror the particular type of juice desired. Accordingly, neither the role of the acid nor its amount change the classification of the instant product.

It is clear that there is more calcium than normally present in orange juice. However, calcium is only naturally present in orange juice in trace amounts, (approximately .05%). An increase of a factor of thirteen yields a very small amount of calcium in the product. In addition, the added calcium is merely
a nutritional supplement to the juice. In terms of the effect on the character of the juice, the addition of calcium is de minimis.


The instant merchandise is classifiable under the provision for fruit juices (including grape must) and vegetable juices, unfermented and not containing added spirit, whether or not containing added sugar or other sweetening matter: orange juice: frozen, in subheading 2009.11.00, Harmonized Tariff Schedule of the United States, dutiable at the rate of 9.25 cents per liter.

In view of the decision of the Harmonized System Committee on this issue and in the interest of uniformity of application of the Harmonized System, the Custom Service has requested the International Trade Commission pursuant to section 1205 of the Omnibus Trade Act of 1988 to make such changes in the Harmonized Tariff Schedule of the United States as may be necessary or appropriate to promote uniformity of application by conforming the HTS to the CCC decision. Should those changes be made, you may wish to resubmit your request for ruling.


Harvey B. Fox

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