United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1996 HQ Rulings > HQ 953480 - HQ 956325 > HQ 955752

Previous Ruling Next Ruling
HQ 955752

November 29, 1994

CLA-2 CO:R:C:F 955752 K


TARIFF NO.: 1901.10.1000; 9904.10.60

Kenneth S. Horowitz, Esq.
Gibney, Anthony, & Flaherty
Attorneys At Law
665 Fifth Ave.
New York, New York 10022-5305

RE: Ecuadorian Tropical Products Inc., And Classification of "Cerelac"

Dear Sir:

Your letters of September 15, and October 6, 1993, and March 1, 1994, concern your request for a ruling as to the classification of a product from Educator known as "Nestle Cerelac". A sample was submitted. Our decision follows.


The product known as "Nestle Cerelac" (Cerelac), is a dry, pale yellow, powder-like substance, stated to be composed of 54 percent wheat flour, 23 percent sucrose, 21 percent milk, 1 percent salt, and 1 percent lisin. The sample of Cerelac, contained in a metal canister containing 500 grams, is packed for retail sale. The values of the ingredients were not stated. The labelling on the sample is in Spanish and an English translation was not provided.

The labelling describes the product as a nutritious food, easily digestible, delicious taste, that is composed of pasteurized milk, wheat flour, vitamins, minerals, lisin and slightly flavored with vanilla. The product is described as a milky cereal for infants and children starting at six months of age and as a breakfast, a snack, a light meal or as a cold shake by adolescents and adults. The labelling contains a caution that the product should not be the only source of nutrition for a child.

No cooking is required. The product is prepared by merely adding a liquid [water] to the proper amount of Cerelac to make a cold or hot cereal or drink. The labelling indicates that since

Cerelac already contains milk, it is not necessary to add anyunless a higher nutritional value is desired for adolescents and adults. The directions contain the amounts of Cerelac and water to prepare a milky cereal for infants and children starting at the age of six months. Fruits may be added to the cereal. The directions also contain the amounts of Cerelac, water and/or milk to prepare a breakfast cereal or cold shake for adolescents and adults. The labelling depicts an infant (or young child) wearing a bib and a young boy eating a bowl of cereal and a mother with a drink of Cerelac in her hand.


The issue is whether the product, Cerelac, as described, above, is a food preparation of headings 0401 to 0404, not elsewhere specified or included, a preparation for infant use, put up for retail sale, containing over 10 percent by weight of milk solids, classified in subheading 1901.10.1000, Harmonized Tariff Schedule of the United States (HTSUS).


Essentially, counsel's position is that Cerelac is a food for adults, adolescents, and children over 4 months (the labelling prescribes directions for infants starting at age 6 months), that there is no evidence that the product is principally used in the United States for infants, and, therefore, the product cannot be classified as a preparation for infant use. Accordingly, counsel concludes that the product is classifiable in accordance with its essential character and since the one ingredient which appears in a percentage which exceeds all other ingredients combined is the flour, the product is classifiable in the basket provision of subheading 1901.90.9060, HTSUS, as other food preparations of flour, put up for retail sale, and not subject to the milk quotas of heading 9904.10.60, HTSUS.

Rule 3(b), General Rules of Interpretation, HTSUS, states that "mixtures, composite goods consisting of different materials...[in this case, milk and flour] which cannot be classified by reference to [rule] 3(a), shall be classified as if they consisted of the material...which gives them their essential character, insofar as this criterion is applicable." The percentages and values of the mixtures may be elements to be considered for determining essential character but those elements are not controlling, and are not found in Rule 3(b). The percentages of content and values of mixtures alone do not resolve essential character.

The values of ingredients for Cerelac were not stated. Cerelac contains a significant amount, 21 percent, of milk solids. The directions for preparing the product requires the
addition of water which serves to reconstitute the milk. The labelling of the product refers to it as "milky wheat". Thus, the labelling indicates the importance of the milk content. The Encyclopedia Americana (1980), Volume 19 at page 113, states that "milk is considered nature's most perfect food because it contains nearly all the substances essential for nutrition." We are aware that milk is one of the basic food products for infants and that Cerelac provides this necessary food product for infants with the addition of wheat flour. We conclude that the milk solids constitutes the essential character of Cerelac.

Subheading 1901.10.1000, HTSUS, provides for food preparations of goods of headings 0401 to 0404...not elsewhere specified or included, that are preparations for infant use, put up for retail sale, containing over 10 percent by weight of milk solids. The subheading is a use provision. Additional U.S. Rules of Interpretation, 1(a), HTSUS, states that
in the absence of special language or context which otherwise requires-- a tariff classification controlled by use (other than actual use) is to be determine in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of the class or kind to which the imported goods belong, and the controlling use is the principal use.

No technical documentation has been submitted concerning the principal use of the product in the United States. Therefore, based on the facts as developed above, we conclude that the principal use of the product is as a food preparation for infants and classified in subheading 1901.10.1000, HTSUS, notwithstanding that the product also may be for use by adolescents and adults.


The product known as Cerelac, as described above, is classified in subheading 1901.10.1000, HTSUS, as a food preparation for infant use, put up for retail sale, containing over 10 percent by weight of milk solids, with duty at the general rate of 17.5 percent ad valorem, and subject to quota under heading 9904.10.60, HTSUS.


John Durant, Director

Previous Ruling Next Ruling

See also: