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NY J80167

February 5, 2003

CLA-2-22:RR:NC:SP:232 J80167


TARIFF NO.:2202.90.2400; 2202.90.2800

Ms. Maria E. Celis
Neville Peterson LLP
80 Broad Street-34th Floor
New York, New York 10004

RE: The tariff classification of “Frusion” Yogurt Smoothie Beverage from Canada or Mexico.

Dear Ms. Celis:

In your letter dated January 9, 2003, on behalf of The Dannon Company, you requested a tariff classification ruling.

Samples and information were submitted with your initial request dated November 28, 2002. The “Frusion” Yogurt Smoothie Beverage consists of cultured yogurt, blended with 20 percent water, sweeteners, flavorings, and very small amounts of starch, color and additives. The product is manufactured by culturing milk with lactic acid cultures to create yogurt. When the yogurt has formed, (at a pH of 4.4), water is added, which cools the product and ends the fermentation. The yogurt/water mix is then blended with the fruit preparation and, finally into retail bottles of 11.18 ounces. The “Frusion” will be imported in various flavors, including Banana Berry, Peach Passion Fruit and Wild Berry. The “Frusion” Yogurt Smoothie Beverage contains over 6 percent by weight milk solids.

You feel that “Frusion” is properly classifiable in heading 0403, HTS, based on the fact that the product contains yogurt bacteria and has a creamy consistency. You note, also, that the Explanatory Notes to heading 2202, HTS, exclude from that heading “Liquid yogurt and other fermented and acidified milk and cream containing cocoa, fruit or flavorings.” We would agree that yogurt is a fermented milk. However, the addition of water to the fermented milk creates a product which does not have the composition of milk but which, in fact, has a new identity,--specifically, that of a beverage. Further, the language of heading 04.03 does not provide for the addition of water to the fermented milks classified therein. As to the exclusion in the EN to heading 2202, HTS, we would note that liquid yogurts may be, and are, made with fermented milk, without the addition of water. These liquid yogurts, without added water, are excluded from heading 22.02, precisely because they are undiluted fermented milk.

The applicable subheading for the “Frusion” Yogurt Smoothie Beverage, if imported in quantities that fall within the limits described in additional U.S. note 10 to chapter 4, will be 2202.90.2400, Harmonized Tariff Schedule of the United States (HTS), which provides for Waters...containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages...Other: Milk-based drinks: Other: Described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions. The general duty rate will be 17.5 percent ad valorem. If the quantitative limits of additional U.S. note 10 to chapter 4 have been reached, the product will be classified in subheading 2202.90.2800, HTS, and dutiable at the rate of 23.5 cents per liter plus 14.9 percent ad valorem. In addition, except for goods of Canada, Mexico or Jordan, products classified in subheading 2202.90.2800, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.04.50 to 9904.04.58, HTS.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist John Maria at 646-733-3031.


Robert B. Swierupski

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