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HQ 959886

May 7, 1998

CLA-2 RR:CR:GC 959886K


TARIFF NO.: 3402.20.5000

Port Director
U.S. Customs Service
111 W. Huron St.
Buffalo, New York 14202-2378

RE: Application For Further Review of Protest No. 0901-96-101436; Custom Pharmaceuticals;
OXY Moisturizing Face Wash

Dear Port Director:

The following is our response to the referral by your office, dated October 24, 1996, of the request for further review of the above-referenced protest.


The three consumption entries covering the imported merchandise from Canada, were liquidated on June 14, 1996, under the provision for other bath preparations, in subheading 3307.30.5000, Harmonized Tariff Schedule of the United States (HTSUS), with duty at the 1996 special rate of 0.9 percent ad valorem. A timely protest under 19 U.S.C. 1514 was received on June 17, 1996. The protestant requested reliquidation of the entries under the provision for other medicaments (excluding goods of heading 3002, 3005, or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packing for retail: ...other dermatological agents and local anesthetics, in subheading 3004.90.9045, HTSUS, with a free general rate of duty. The port officials suggest an alternative classification under the provision for soap, in other forms, in subheading 3401.20.000, HTSUS, with a special free rate of duty.

The OXY Moisturizing Face Wash is put up in a 2 ounce retail plastic dispenser bottle and it is described on the label as an antibacterial face wash (with Triclosan) with three proven cleaners and an oil free moisturizer. It is stated to thoroughly clean away dirt and kill germs with a dermatologist tested antibacterial ingredient, help protect skin from dryness while cleaning and, when used up to three times daily, help leave skin soft, moist and oil free. The listed ingredients are triclosan 0.6 percent, cocamidopropyl betane, diazolidinyl, urea, FD&C Blue # 1, glycerin, sodium chloride, sodium cocoyl isethinoate, sodium lauryl sulfate (a synthetic non-aromatic surface-active agent) and water.


The issue is whether OXY Moisturizing Face Wash, as described above, is classified as a medicament.


Heading 3004, HTSUS, covers medicaments consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale. There is no evidence that "OXY" is used or is principally used as a medicament for therapeutic or prophylactic uses. Although the product contains 0.6 percent triclosan, a bacteriostat that has both antiseptic and disinfectant properties, its principal function is as a face wash. Therefore, it is precluded from classification under the provisions of heading 3004, HTSUS.

Subheading 3307.30.5000, HTSUS, provides for other bath preparations. However, the product is not a foam bath preparation or a product used in the bath and is not classified in this subheading.

Heading 3402, HTSUS provides for organic surface-active agents (other than soap); surface-active preparations, washing preparations (including auxiliary washing preparations) and cleaning preparations, whether or not containing soap, other than those of heading 3401. Heading 3401, HTSUS, provides for soap; organic surface-active products and preparations for use as soap, in the form of bars, cakes, molded pieces or shapes, whether or not containing soap; paper, wadding, felt and nonwovens, impregnated, coated or covered with soap or detergent. OXY Moisturizing Face Wash is not a soap as described in heading 3401. However, it is a washing and cleaning preparation (other than soap) having the basis of soap or other organic surface-active agents, and is classified under heading 3402, HTSUS.

We conclude that the product as described is classified as an other organic surface-active agent, in subheading 3402.20.5000, HTSUS (1996), with a general free rate of duty.


The merchandise, described as OXY Moisturizing Face Wash, is classified as an other organic surface-active preparation, washing and cleaning preparations, put up for retail sale, in subheading 3402.20.5000, HTSUS (1996), with a general free rate of duty

You are instructed to deny the protest concerning the request to reliquidate the entries under subheading 3004.90.9045, HTSUS. However, the protestant should have the benefit of liquidation of the entries, in accordance with this decision, under subheading 3402.20.5000, HTSUS, with a general free rate of duty.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.


John Durant, Director
Commercial Rulings Divison
Office of Regulations and Rulings

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