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HQ 963260




March 27, 2001

CLA-2 RR:CR:GC 963260ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 3307.30.10

Thomas J. McCarthy, Esq.
Lars-Erik Hjelm, Esq.
Akin, Gump, Strauss, Hauer & Feld, L.L.P. 1333 New Hampshire Avenue, N.W.
Suite 400
Washington, D.C. 20036

RE.: Modification of NY E84228; Sparkling Herbal Bath Tablets.

Dear Mssrs. McCarthy and Hjelm:

This is in response to your letter of October 29, 1999, on behalf of the Kneipp Corporation of America (Kneipp), requesting reconsideration of New York Ruling Letter (NY) E84228. NY E84228 was issued on August 10, 1999, to Kneipp's agent/broker and classified six different bath articles under the Harmonized Tariff Schedule of the United States (HTSUS). You are requesting reconsideration of NY E84228 insofar as it related to articles variously described as Sparkling Herbal Bath Tablets or Herbal Salt Bath Tablets. In NY E84228, the Melissa Sparkling Herbal Bath Tablet and the Juniper Sparkling Herbal Bath Tablet were classified in subheading 3307.30.50, HTSUS, which provides for perfumed bath salts and other bath preparations: other. You contend that the articles should be classified in subheading 3307.30.10, HTSUS, which provides for perfumed bath salts and other bath preparations: bath salts, whether or not perfumed. You have not requested reconsideration of the classification of the other four articles classified in NY E84228, and this letter does not address or affect those classifications.

In preparing this ruling, consideration has been given to your supplemental submission of November 15, 2000, and to the samples you have provided for examination.

We have determined that the classification of the sparkling herbal bath tablets provided by NY E84228 is incorrect . Pursuant to the analysis set forth below, the correct classification of sparkling herbal bath tablets is in subheading 3307.30.10, HTSUS.

Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed modification of NY E84228 was published on January 3, 2001, in the Customs Bulletin, Vol. 35, No. 1. As explained in a notice published on February 21, 2001, in Vol. 35, No. 8 of the Customs Bulletin, the period within which to submit comments on this proposal was extended to March 23, 2001. No comments were received in response to the notices.

FACTS:

The articles under consideration are referred to in your presentation as "herbal salt bath tablets" although Kneipp refers to the articles, in both its product literature and labeling, as "sparkling herbal baths." Kneipp's literature describes the articles as "A special aroma-therapeutic treat. Effervescent tablets, activated by warm water, release aromatic essential oils to help renew mind and body." Each tablet weighs 3 ounces and is individually wrapped and labeled. The two versions of the tablets have slightly different formulae. According to the sample submitted, the ingredient list for the Juniper Sparkling Herbal Bath tablet is as follows: "Sodium Bicarbonate, Citric Acid, Nonfat Dry Milk, Fragrance, Soybean Oil, Corn Starch, Juniper Oil, Sodium Methyl Oleoyl Taurate, Silica, D&C Yellow No. 10." The "Juniper" label contains the statement: "To Soothe Tired, Sore Muscles". The ingredient list for the Melissa Sparkling Herbal Bath tablet is as follows: "Sodium Bicarbonate, Citric Acid, Nonfat Dry Milk, Citronella Oil, Soybean Oil, Corn Starch, Balm Mint Extract, Fragrance, Sodium Methyl Oleoyl Taurate, Silica, FD&C Yellow No. 6, D&C Yellow No. 10." The "Melissa" label contains the statement: "Relaxing, For a Good Night's Sleep".

ISSUE:

What is the classification of herbal sparkling bath tablets?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all 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. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings under consideration are as follows:

3307 Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties:

3307.30 Perfumed bath salts and other bath preparations:

3307.30.10 Bath salts, whether or not perfumed

3307.30.50 Other

Neither the HTSUS nor the ENs contain a definition of the term "bath salts." In absence of a definition of a term, the correct meaning is its common or commercial meaning. Unfortunately, according to the Cosmetic, Toiletry and Fragrance Association, there is neither an industry standard nor a industry definition of what is meant by the term "bath salts." The Random House Dictionary of the English Language defines "bath salts" as "a preparation used to soften or give a pleasant scent to a bath, as colored, sweet-smelling flakes, crystals, etc."

Hawley's Condensed Chemical Dictionary defines a salt as a compound formed when the hydrogen of an acid is replaced by a metal or its equivalent. The Kirk-Othmer Encyclopedia of Chemical Technology, Third Edition, 1979, contains the following entry under "Bath Salts" "Two types of bath salts are available. The first is formulated with crystalline salts such as rock salt and epsom salt to which color and perfume are added. These are not water softeners. The second type is the water softening type based on sesquicarbonates, phosphates, and borates. Color and perfume are added and in some products, small percentages of fatty acid ester are included for nondrying effects." Volume 7, at page 167.

A review of industry literature, materials and advertising indicates that products which are denominated "bath salts" are predominately composed of crystals of sea salts or other "natural" salts. Other sodium compounds and ingredients may also be present in varying concentrations. However, it is the salinity and "softness" of the water (and its purported beneficial/luxurious quality) which results from using the various "bath salts" is repeatedly emphasized in the literature.

Your submission discusses HQ 950893, dated March 11, 1992, in which Customs classified a product, ActiBath Carbonated Bath Tablets, in subheading 3307.30.5000, HTSUS, as a product other than a bath salt because, among other reasons, it possessed the ability to release carbon dioxide when placed in water. You disagree with both the product analysis and classification result of HQ 950893. Customs has reviewed HQ 950893 and has determined that it erroneously classified the article. In a separate letter, being published simultaneously, Customs is revoking HQ 950893, and classifying the article as a bath salt (See HQ 964631).

As a general rule, acids react with carbonates and bicarbonates to produce carbon dioxide gas. In the instant case, when citric acid and sodium bicarbonate are placed in water the compounds dissolve and ionize. The resultant chemical reaction between the acid and the carbonate ions produces carbon dioxide gas, which results in effervescence at the surface of the water. In addition, if the water is hard, i.e., contains high concentrations of calcium and magnesium ions, the carbonate ions will precipitate out calcium and magnesium carbonates, softening the water thereby.

Chemically, the sodium bicarbonate in the bath tablet preparation has a dual functionality; namely, to produce an attractive effervescence and to soften the water.

The relevant commercial literature (advertising, promotional flyers, packaging and labeling) all make distinctions between products which are described by their manufacturers are "bath salts" and those which are called "other bath preparations". These latter articles include, among other examples, bath lotions, bath oils and bath powders. Conveniently, the tariff subheadings also divide products into two groups. Since the industry has seen fit to identify some bath products as "salts" and other products as something else, and absent language or definitions to the contrary in the tariff, Customs will classify the products accordingly. Kneipp's Herbal Bath Tablets fall within the category of bath salts.

Since the herbal bath tablets contain chemical salts and do, indeed, function as water softeners, and, given the fact that the release of carbon dioxide gas is purely esthetic and has no therapeutic effect, the products are properly considered bath salts and classifiable in subheading 3307.30.10, HTSUS.

HOLDING:

For the reasons stated above, the Kneipp Juniper Sparkling Herbal Bath Tablets and the Kneipp Melissa Sparkling Herbal Bath Tablets are classified in subheading 3307.30.10, HTSUS, which provides for Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties: [p]erfumed bath salts and other bath preparations.

NY E84228, dated August 10, 1999, is modified insofar as it relates to the products discussed in this letter. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director

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