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HQ 956315

November 29, 1994

CLA-2 CO:R:C:F 956315 K


TARIFF NO.: 1901.10.1000; 9904.10.60

Area Director
Newark Area
U.S. Customs Service
Routes 1 & 9 South
Newark, New Jersey 07114

RE: Triunfo Foods Import & Export Corp., and Classification of "Cerelac"; Internal Advice 15/94

Dear Sir:

In a memorandum of April 8, 1994, your office referred the letter dated November 11, 1993, from Gail T. Cumins, Esq. of the law firm of Sharrets, Paley, Carter & Blauvelt requesting a classification ruling under the Internal Advice Procedure for a product from Portugal called "Cerelac Farinha Lactea". A sample was submitted. A meeting was held at Headquarters on May 11, 1994, and a further submission was submitted by the law firm dated May 20, 1994. A sample was submitted. Our decision follows.


The product, known as "Nestle Cerelac Farinha Lactea" (Cerelac) is a cereal mix composed of 50 percent wheat flour, 26.5 percent of milk solids, 13 percent of sugar, with the balance consisting of corn oil, iron, calcium, vanillin and vitamins. (A Customs Laboratory report indicates that a sample contained 25 percent of skim milk products and 9.4 percent of whole milk solids.) The values of the ingredients were not given although it is implied that the wheat is the ingredient of chief value.

The English label superimposed on the submitted sample states that Cerelac is "Your child's first meal after 4 months of age" and prescribes a dosage for a child 4 to 12 months. It also prescribes a higher dosage "after 1 year of age". The labelling on the sample is in Portuguese and an English translation was not provided. The labelling in Portuguese prescribes a dosage for a baby between 4 and 6 months and a higher dosage for a baby after 6 months. The Portuguese labelling further describes the product as "a first cereal for babies starting from four (4) months", as "rich in vitamins and has minerals", as an "instant preparation" (by merely adding water), as "easily digested (excellent digestibility)", and as "slight vanilla flavor". The front and back of the cardboard container refers to Cerelac as "Farinha lactea" translated as milky wheat. The front and the back of the cardboard container depicts an infant wearing a bib between a mother and a young girl and the mother is in the process of feeding the infant a bowl of Cerelac.

It is stated that the taste does not come from one ingredient but rather, the taste of the product "comes from a combination of all three [main] ingredients, wheat flour, crystallization of sugar during the manufacturing process, and the milk powder." Further, it is stated that the product is used by infants, children, and adults and that it is not primarily for infants. Technical documentation was not submitted to support these statements.


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).


Counsel's position is that the wheat flour, not the milk content, imparts the essential character of Cerelac. Therefore, the product is classifiable in the basket provision of subheading 1901.90.90, HTSUS, as other food preparations of flour, put up for retail sale, not subject to the milk quotas of heading 9904.10.60, HTSUS. The decision of the Court of International Trade in Wilsey Foods, Inc. v. United States, Slip Op. 94-46 (decided March 16, 1994), is cited to support counsel's position.

In determining the issue of essential character of a product in Wilsey Foods, Inc, supra, the court found "as a matter of fact that milk or cream is not the essential ingredient, not the ingredient of chief value, nor is it the preponderant ingredient in Wilsey's products". The court then held that the products in that case were not classified as other food preparations of milk in subheading 1901.90.3030, HTSUS (1993) and that the correct classification was in subheading 2106.90.6097, HTSUS (1993), as other food preparations not elsewhere specified or included, of sugar. The court did not set forth the option "that in order for the presence of a milk component to control classification in [heading] 1901 it must (1) be the essential ingredient or (2) the ingredient which predominates by weight and value." There is no "or" in the court's finding.

Rule 3(b), General Rules of Interpretation, HTSUS, states that "mixtures, composite goods consisting of different materials... 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 court in Wilsey Foods, Inc, supra, did not hold that the ingredient in a mixture which predominates by weight and value automatically determines essential character. Such a position would nullify the statutory rule 3(b). A reasonable person would not conclude that fruit juices constituted the essential character of a drink composed of 99 percent of fruit juices and 1 percent of arsenic. Obviously, the arsenic gives the drink its essential character as a poisoned drink rather than as a drink for refreshment. The percentages of content and values of mixtures alone do not resolve essential character. Accordingly, we are of the opinion, that Wilsey Foods, supra, is not controlling in determining the essential character of Cerelac.

The values of the ingredients for Cerelac were not stated. Cerelac contains a significant amount, 26.5 to 34.4 percent, of milk solids. The directions for preparing the product merely requires the addition of water which serves essentially to reconstitute the milk. The labelling of the product refers to it as "milky wheat". Thus, the labeling 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 determined 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

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