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HQ 951145

May 28, 1992

CLA-2 CO:R:C:F 951145 ALS


TARIFF NO.: 4421.90.9040

Mr. Pennfield Smith
International Barbeque Time LTD.
(107) 8811 River Rd.
Richmond, B.C., Canada V6X 1Y6

RE: Flavored Barbecue Wood Chips Containing a Mixture of Wood Shavings and a Mixture of Herbs and Spices in a Gelatin Base

Dear Mr. Smith:

This is reference to your letter of January 9, 1992, to our New York Seaport Area Office requesting a binding ruling on the classification of the subject product. Your request along with the 3 samples included therewith have been referred to this office for further consideration.


The product under consideration is used to flavor foods when barbecuing them. The product is composed of wood chips and combinations of herbs and spices in a gelatinous base. The product is made in several flavorings. Each product unit contains a combination of a type of wood and a mixture of herbs and spices depending on the flavoring result desired. The gelatinous base, which when wet weighs 1/2 ounce and when dry weighs 1/4 ounce, is placed on a 3 ounce bed of wood shavings and packed in a 1 inch by 5 inch aluminum pan. The pan is covered with a paper/aluminum combination lid which is held in place by the edges of the pan which fold over the edge of the lid. There are 9 holes in the lid, approximately 1/8 inch in diameter, which are covered by a label which identifies the company and the - 2 -
herb/spice contents in French and English. The product is used for backyard barbecues. In order to use the product the user peels off the label to expose the holes and places the aluminum pan with its contents on the hot coals or lava rocks where it is heated. When so heated the product smolders and smokes causing the herb and spice flavoring and the smoke flavoring of the wood to be carried through the exposed holes to the food on the grill.


What is the classification of the product which is composed of 2 different component materials which when heated emit 2 different flavorings which are imparted to food?


Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) 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 relevant section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied taken in order.

In reviewing the facts in this case, we did not find a subheading which specifically covered the product. The product, depending on whether it was considered a mixed seasoning, a food preparation, a mixture of odoriferous substance, a chemical preparation or a wood product could be classified in Chapters 21, 33, 38 or 44, HTSUSA, respectively.

We note that, while the product does contain herbs and spices and imparts those flavorings along with a smoke flavoring from the wood to the food being grilled, none of the components of the product actually touches the food being grilled. This product thus differs from herbs, spices and vegetables, which are normally used to impart flavoring to food in that it is not topically applied to the food. Historically, this has been considered a prerequisite for classifying merchandise in Chapter 21, HTSUSA. Also, based on a discussion with the Food and Drug Administration (FDA), we understand that such a product would not meet the requirements of section 321(f), title 21, United States Code (21 U.S.C. 321(f)) and would not be considered a food item under the jurisdiction of the FDA.

We considered the possible application of Heading 3302, HTSUSA, regarding mixtures of odoriferous substances. Although at least some samples of the product appear to meet some of the basic requirements of that heading, i.e. mixtures of essential oils, mixtures of resinoids, the product at hand is a finished product, ready to be used in barbecues and, thus, does not meet the provision of Heading 3302, HTSUSA, which specifies that such substances are "of a kind used as raw materials in industry." In other words, products falling under this provision are intermediate products which are used to make finished products and are not themselves finished products.

We next considered the possible application of Heading 3823, HTSUSA, which generally provides for products of the chemical industry. We noted that the products of Chapter 38, HTSUSA, with few exceptions, were generally of the type utilized in industry and not the type related to food components. This is in line with our aforementioned conclusion that the product does not come within the scope of food or foodstuffs. While the provisions of this chapter are very broad and could possibly cover the product, it is not clear that the product is properly classifiable in this chapter. Accordingly, we felt that further classification possibilities should be explored.

Accordingly, we next considered the provisions of Chapter 44 related to articles of wood. In this regard we noted that the purpose of the product is to flavor food. There are two components that flavor the food, a gelatinous base containing herbs and spices and wood. There does not appear to be any quantitative distinction as to the degree to which either component imparts its flavor to the food. In considering the weight of the components of the product, we note that over 80 percent of flavoring components in the product is wood, i.e. 3 ounces of a 3-1/2 ounce total. In physically examining the components one notes that the wood is the most prominent thereof.

In considering the possible headings under which the product might be classified we have, based on the above reasoning, concluded that the product should be classified under either Heading 3823 or Heading 4421. Since neither heading specifically describes the product, classification in accordance with GRI 1 is not possible. Accordingly, we referred to GRI 2 which provides that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. Since each of the competing headings only refer to a part of the product and one is not more specific than the other, - 4 -
classification under GRI 3(a) is not possible. We next referred to GRI 3(b) which provides that composite goods consisting of different materials shall be classified according to the product which gives them their essential character. Since both the herbs and spices and the wood provide flavoring, the primary purposes of the article, we cannot say that essential character of the product is either of those components even though the wood, by weight, makes up most of the product. Accordingly, we turned to GRI 3(c) which provides that when goods cannot be classified by reference to GRI 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. Thus, the product would be classified in Chapter 44, HTSUSA.


Barbecue smoking chips of wood which are combined with a gelatinous base containing herbs and spices to provide flavoring to food being grilled are classifiable under subheading 4421.90.9040, HTSUSA, as Other articles of wood, other, other and are dutiable at a general rate of duty of 5.1 percent ad valorem.

The subject barbeque smoking chips, if the product of Canada, are , in accordance with General Note 3(c)(vii)(B), HTSUSA, eligible for a reduced rate of duty, upon compliance with the provisions of the United States - Canada Free Trade Agreement (CFTA) and section 10.301 et seq., Customs Regulations (19 CFR 10.301 et seq.).


John Durant, Director
Commercial Rulings Division

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