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HQ 952278

January 26, 1993

CLA-2 CO:R:C:F 952278 LPF


TARIFF NO.: 2106.90.6099

Area Director
U.S. Customs Service
Room 423
6 World Trade Center
New York, NY 10048

RE: Decision on application for further review of Protest No. 1001-91-108125, filed November 14, 1991, concerning classification of herbal and multivitamin food supplements; Heading 2106, HTSUSA, food preparations not elsewhere specified or included; Not 1302, vegetable saps and extracts; Not 2103, sauces and preparations therefor, mixed condiments and seasonings; Not 2936, provitamins and vitamins; Not 3004, medicaments; HRL 083000

Dear Sir:

This is a decision on a protest filed November 14, 1991, against your decision in the classification of certain merchandise liquidated on August 16, 1991, September 6, 1991, and October 25, 1991.


The subject merchandise, described as Floradix or Floravital brand herbal and vitamin products, is imported from Germany by Miracle Exclusives, Inc. The protestant has grouped the various products into three categories: iron and herb products, multivitamins, and the herbal rest product. Sample packages of all the products were submitted to this office.

The iron and herb products include Floradix iron and herbs liquid extract formula, Floradix iron and herbs in tablet form, and Floravital iron and herbs liquid formula. The products consist primarily of an aqueous herbal extract and fruit juice concentrates in addition to iron and various vitamins, including B1, B2, B6, and B12. The Floradix products also contain a significant amount of yeast. The iron and herb tablets are described as a natural dietary supplement which helps prevent dietary iron deficiency. The protestant entered the iron and herb products under subheading 2103.90.40, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "Sauces and preparations therefor; mixed condiments and mixed seasonings; mustard flour and meal and prepared mustard: Other: Nonalcoholic
preparations of yeast extract (other than sauces)," at a duty rate of 5 percent ad valorem.

The multivitamin products include the Floradix multivitamin liquid extract formula and children's liquid multivitamin formula. The former consists primarily of an aqueous liquid herb extract and fruit juice concentrate in addition to vitamins A, B1, B6, C, D, and niacinamide. The latter consists of an herbal extract, herbal malt yeast extract, orange juice and pear juice concentrate in addition to vitamins A, C, B1, B6, folic acid, niacinamide, vitamin E, vitamin D, calcium, phosphorus and magnesium. The Floradix multivitamin is described as a liquid dietary supplement, while the children's formula is stated to provide the nutrients essential for natural growth and to aid the formation of healthy bone structure and tooth formation in infants. The protestant entered the multivitamin products under subheading 2936.90.00, HTSUSA, as "Provitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or not in any solvent: Other, including natural concentrates," at a duty rate of 4 percent ad valorem.

The herbal rest product consists of extracts from various herbs and includes flavoring agents as well as other substances. It is described as an herbal dietary supplement which provides a natural aid to relaxation and promotes deep sleep. The protestant entered the product under subheading 1302.19.90, HTSUSA, as "Vegetable saps and extracts...: Other: Other," at a duty free rate.

The protestant submits that if the iron and herb products and multivitamin products are not classifiable in subheadings 2103.90.40 or 2936.90.00, respectively, they are classifiable, alternatively, in subheading 3004.50.50 as medicaments consisting of mixed or unmixed products for therapeutic or prophylactic uses, other, or in subheading 1302.19.90 as vegetable saps and extracts, other.

You classified all the products under subheading 2106.90.60, as "Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other," at a duty rate of 10 percent ad valorem.


Whether the iron and herb, multivitamin, and herbal rest products are classifiable in heading 2103 as sauces, condiments or seasonings; 2936 as vitamins or vitamin derivatives; 1302 as vegetable saps or extracts; 3004 as medicaments; or 2106 as food preparations.


The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. Most imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

Iron and Herb Products

The protestant submits that the iron and herb products are classifiable in subheading 2103.90.40, as sauces, mixed condiments and mixed seasonings, other, nonalcoholic preparations of yeast extract. Although two of the three products contain yeast, this is not dispositive of the products' classification within heading 2103. We reiterate that pursuant to GRI 1, an article is first classified according to the terms of its appropriate four digit heading, then according to its six and eight digit subheading. Because these products are not sauces, condiments or seasonings classifiable within heading 2103, they are not classifiable in a subheading falling within 2103.

Alternatively, the protestant submits that the products are classifiable within heading 3004, as medicaments. As evidence of classification in 3004, the protestant states that because these products contain sufficient iron to prevent anemia, or iron deficiency, when taken in daily doses, the products are taken for therapeutic or prophylactic purposes. The protestant adds that the EN's to 2106 indicate that the heading, "excludes products where an infusion constitutes a therapeutic or prophylactic dose of an active ingredient specific to a particular ailment (heading 30.03 or 30.04)."

On the contrary, the EN's to 3004 indicate that the heading excludes:

...food supplements containing vitamins or mineral salts which are put up for the purpose of maintaining health or well-being but have no indication as to use for the prevention or treatment of any disease or ailment. These products which are usually in liquid form but may also be put up in powder or tablet form, are generally classified in heading 21.06 or Chapter 22.

We agree with the Customs National Import Specialist that the presence of iron is no more compelling an argument for classification in 3004 than is the presence of other vitamins or minerals in quantities exceeding the Recommended Daily Allowance (RDA). Many food supplements or food products when taken daily ensure against a deficiency of certain minerals or vitamins which could result in disease. However, this does not indicate that such products are classifiable in 3004.

Customs has maintained that 3004 excludes products which are put up for the purpose of maintaining health or well-being, but which have no indication as to use for the prevention or treatment of any disease or ailment. See Headquarters Ruling Letter (HRL) 083000, issued September 19, 1990. These products are natural dietary supplements which prevent dietary iron deficiency (i.e, promote general health) and have no indication as to use for the prevention of anemia or any other specific disease or ailment.

As a final alternative, the protestant suggests classification in heading 1302 as vegetable saps and extracts. The EN's to 1302 state that:

[t]he vegetable saps and extracts of this heading are generally raw materials for various manufactured products. They are excluded from the heading when, because of the addition of other substances, they have the character of food preparations, medicaments, etc.

The protestant accurately states that, pursuant to Notes 1(d) and 1(f) to Chapter 13, HTSUSA, the chapter excludes vegetable saps or extracts constituting alcoholic beverages or compound alcoholic preparations as well as medicaments. However, these products are but several exemplars of "food preparations" excluded from 1302, as referred to in the EN's.

In fact, EN (16) to 2106, providing for food preparations, states that the heading includes:

[p]reparations, often referred to as food supplements, based [on] extracts from plants, fruit concentrates, honey, fructose, etc. and containing added vitamins and sometimes minute quantities of iron compounds. These preparations are often put up in packagings with indications that they maintain general health or well-being....

Although the protestant states that the products include more than "minute quantities or iron," this does not preclude classification in 2106. The fact that the products primarily consist of herbal extracts and fruit concentrates, contain added vitamins, and maintain general health or well-being indicates that the products are classifiable in 2106. The appropriate subheading is 2106.90.6099.


The protestant submits that the multivitamin products are classifiable in subheading 2936.90.00 as provitamins and vitamins, derivatives thereof, other. However, EN (d) to 2936 states, in pertinent part, that the heading includes:

...products diluted in any solvent...provided that the quantity added or the processing in no case exceeds that necessary for their preservation or transport and that the addition or processing does not alter the character of the basic product and render it particularly suitable for specific use rather than for general use.

It is Customs position that the significant quantity of herbal extract, fruit concentrate, and other non-vitamin ingredients included in the products, indicates that they are not simply vitamins or admixtures of such vitamins. We disagree with the protestant's position that the added ingredients are merely present to facilitate ingestion and render the multivitamins more palatable to adults and children. The multivitamins must be classified elsewhere.

For the reasons discussed above, the multivitamins are not classifiable in either 3004 or 1302, but are properly classified as food preparations in subheading 2106.90.6099.

Herbal Rest

The protestant submits that the herbal rest product is classifiable in subheading 1302.19.90 as vegetable saps and extracts. We note, however, that the product primarily contains flavoring agents and other substances, in addition to various herbs, and appears to be a dietary supplement. For the reasons discussed above, and particularly because 1302 excludes products which have the character of food preparations, the product is not classifiable in 1302, but is properly classified as a food preparation in subheading 2106.90.6099.


The iron and herb, multivitamin and herbal rest products are classifiable in subheading 2106.90.6099, HTSUSA, as "Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other, Other: Other: Other: Other." The general column one rate of duty is 10 percent ad valorem.

Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the protest in full. A copy of this decision with the Form 19 should be sent to the protestant.


John Durant, Director

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