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 > 2006 HQ Rulings > HQ 968120 - HQ 968310 > HQ 968138

Previous Ruling Next Ruling
HQ 968138





March 29, 2006

CLA-2 RR:CTF:TCM 968138 HkP

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.9998

Port Director
U.S. Customs and Border Protection
726 Exchange Street
Suite 400
Buffalo, NY 14210

RE: Internal Advice Request No. 06/004; Classification of Crazy Foam® liquid candy

Dear Port Director:

This ruling is in response to a request for Internal Advice initiated by PBB Global Logistics, Inc., on behalf of their client, Exclusive Consumer Brands, Inc. At issue is the proper classification of Crazy Foam® liquid candy, classified at the time of entry in subheading 2202.10.0060 of the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). U.S. Customs and Border Protection (“CBP”) classified the product in subheading 2106.90.9998, HTSUSA. The request for internal advice is sought based on the importer’s disagreement with CBP’s classification. The importer asserts that proper classification is in subheading 2202.10.0060, HTSUSA. A sample has been sent with the request.

FACTS:

Crazy Foam®, is a liquid candy that is packaged in a clear plastic, cylindrical container approximately 4 ½ inches tall and one inch in diameter, holding 1.35 fluid ounces (40 milliliters). The top of the container includes a pump, which is designed to convert the liquid into a foam-like consistency as it is dispensed. The constituent ingredients of Crazy Foam® are: water, 68%; corn syrup, 28%; sugar, 1%; citric acid, 0.9%; flavor, 0.7%; aspartame, 0.3%; and sodium benzoate, 0.1%. Crazy Foam® is marketed for use by children between the ages of 3 and 14 years, who consume it by pumping the foam directly into their mouths.

ISSUE:

Whether Crazy Foam® is classified in heading 1704, HTSUS, which provides for: “Sugar confectionary (including white chocolate), not containing cocoa”, in heading 2106, HTSUS, which provides for: “Food preparations not elsewhere specified or included”, or in heading 2202, HTSUS, which provides for: “Water, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009.”

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order.

The HTSUS provisions under consideration are as follows:

1704 Sugar confectionary (including white chocolate), not containing cocoa:

2106 Food preparations not elsewhere specified or included: 2106.90 Other:
Other:
Other:
Other:
Other:
2106.90.99 Other ..
Other:
Other:
Other:
2106.90.9997 Containing sugar derived from sugar cane and/or sugar beets .. 2106.90.9998 Other ..

2202 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored, and other nonalcoholic beverages, not including fruit or vegetable juices of heading 2009: 2202.10.00 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavored .. 2202.10.0060 Other ..

The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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.

Heading 1704, HTSUS, provides for sugar confectionary not containing cocoa. Explanatory Note 17.04 states, in relevant part, “[t]his heading covers most of the sugar preparations which are marketed in a solid or semi-solid form, generally suitable for immediate consumption”. The importer argues that, “since this product is clearly not solid or semi-solid, it is precluded from consideration in this heading.” However, CBP has consistently taken a broad interpretation of “confectionary”, and has classified liquid candy products in this heading. See for example, New York Ruling Letter (“NY”) I81019, dated May 22, 2002, and NY I89916, dated January 21, 2003. Nonetheless, in this case, we are of the opinion that the subject merchandise is not classifiable in heading 1704, HTSUS, because it is not a sugar preparation. The dominant ingredients in Crazy Foam® are water (68%) and corn syrup, i.e., syrup made from corn starch and composed mainly of glucose (28%); sugar comprises only 1% of its ingredients. Accordingly, we find that Crazy Foam® is not a sugar preparation and is therefore not classifiable in heading 1704, HTSUS.

The importer argues that the good is classified in heading 2202, HTSUS, which provides, in part, for water containing added sugar or other sweetening matter. The importer contends that Crazy Foam® may be considered “water” based on the predominance of water relative to all other ingredients. EN 22.02 indicates that heading 2202, HTSUS, covers non-alcoholic beverages not classified in other headings. Crazy Foam®, while non-alcoholic, is not a beverage. A beverage is drinkable in its condition as imported. Strohmeyer & Arpe Co. v. United States, 28 C.C.P.A. 34, C.A.D. 121. See also HQ 084981, dated June 19, 1990. In its imported condition, Crazy Foam® is not drinkable, primarily because it appears impossible to get the candy out of the container in liquid form. The top portion of the container holding the pump, and the bottom portion of the container holding the liquid, appear permanently affixed. In any case, even if not permanently fixed together, the two portions of the Crazy Foam® container are so securely fastened that any person, and most especially the 3-14 year olds for whom this product is intended, would find it difficult, if not impossible, to remove the top in order to consume the liquid. Therefore, classification under heading 2202, HTSUS, is precluded.

Heading 2106, HTSUS, provides for “Food preparations not elsewhere specified or included”. EN 21.06 states, in relevant part, “provided that they are not covered by any other heading of the Nomenclature, this heading covers: preparations for use, either directly or after processing , for human consumption”. This indicates that heading 2106, HTSUS, is a “basket” provision, in that, merchandise may only be classified in this heading if not covered by any other heading of the HTSUS.

Applying EN 21.06 to these facts, we find that Crazy Foam® is classified in heading 2106, HTSUS. Because classification took place at the GRI 1 level, there is no need to classify at the GRI 3 level.

HOLDING:

By application of GRI 1, Crazy Foam® is classified in heading 2106, HTSUS, which provides for: “Food preparations not elsewhere specified or included”. It is specifically provided for in subheading 2106.90.9998, HTSUS, which provides for: “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Other: Other: Other: Other: Containing sugar derived from sugar cane and/or beet sugar.” The general column one rate of duty is 6.4%, ad valorem.

You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

Previous Ruling Next Ruling

See also: