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HQ 952273

August 18,1992

CLA-2 CO:R:C:F 952273 JGH

CATEGORY: CLASSIFICATION

TARIFF NO.: 2309.10.00

Mr. Frank Brennan
DeAngelus & Schaffer Associates
The Willard Office Bldg.
Suite 1150
1455 Pennsylvania Ave., N.W.
Washington, D.C. 20004

RE: Classification of a milk product designed for cats.

Dear Mr. Brennan:

Your letter of July 24, 1992, concerns the classification of a milk product for cats which would be made in Canada.

FACTS:

"Whiskas" Ultramilk or Milk Plus, made in Canada by Kal Kan Foods, Inc., is said to be designed as a nutritional supplement for cats. As many cats are said to be lactose intolerant, the product is intended to provide a nutritional, low lactose drink with a malt flavor.

"Whiskas" is said to contain:

Component Percentage

Milk 94.0
Non-fat Milk 3.0
Malt Extract 2.5
Other(including lactase) 0.5

It will be packaged in retail 200 milliliter packages, intended to provide 4 servings.

ISSUE:

Whether "Whiskas", a pet food product consisting of 97% milk, is classified as a dog or cat food put up for retail sale in subheading 2309.10.00, HTSUS, or as an animal feed containing milk or milk derivatives in subheading 2309.90.30, HTSUS.

LAW & ANALYSIS:

The basic question is whether "Whiskas" is a milk product based on the provisions of headings 0401 to 0404, HTSUS. The Explanatory Notes to Chapter 4, HTSUS, point out that the dairy products covered may contain, in addition to natural milk constituents, small quantities of stabilizing agents which serve to maintain the natural consistency of the product during transport in liquid state, as well as very small quantities of anti-oxidants or vitamins not normally found in the product; in addition very small quantities of chemicals necessary for processing are permitted.

In this case you have milk with malt added as a flavor. Malt is an additive not permitted in products classified in headings 0401 to 0404, HTSUS. It is concluded, therefore, that "Whiskas" is a pet food designed for cats packaged in a retail container - subheading 2309.10.00, HTSUS, a provision more specific than the one for animal feeds containing milk or milk derivatives. However, it is possible that importations of this product are subject to the provisions of the Import Milk Act. It is therefore suggested that you contact:

U. S. Food and Drug Administration
Division of Regulatory Guidance
HFF 314, 200 C St. S.W.
Washington, DC 20204

In addition it is suggested that you contact:

U.S. Department of Agriculture
A.P.H.I.S. Veterinary Services
Federal Building, Room 756
6505 Belcrest Road
Hyattsville, Md 20782
concerning any regulations that agency might have bearing on the importation of this product.

HOLDING:

"Whiskas" is classifiable as dog or cat food put up for retail sale in subheading 2309.10.00, HTSUS. It is free of duty.

Sincerely,

John Durant, Director

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