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NY L89633

December 30, 2005

CLA-2-21:RR:NC:N2:228 L89633


TARIFF NO.: 2106.90.9998

Ms. Sandra Liss Friedman
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016

RE: The tariff classification of dietary supplements from Japan

Dear Ms. Friedman:

In your letter dated December 2, 2005, on behalf of Mitsui & Co (U.S.A.), you requested a tariff classification ruling. Your letter was received by this office on December 28, 2005.

The merchandise is described as active bacteria cultures encapsulated in gelatin capsules, imported in bulk and packed into retail units subsequent to importation. Descriptive literature and samples of two retail packaged products, Enzymatic Therapy Acidophilus Pearls and Natrol BioBeads Acidophilus Complex, were submitted with earlier correspondence. The Enzymatic Therapy product is said to contain lactobacillus acidophilus and bifidobacterium longum. In addition to these bacteria, the Natrol sample is said to contain bifidobacterium bifidum and lactobacillus rhamnosus. Your letter states that the products your client plans to import will consist of various formulations, including some or all of these bacteria as well as other bacteria desired by Mitsui’s United States customers. The retail packages describe the goods as “dietary supplements” and make a variety of declarations about the products, e.g. “supplies the two most important active cultures you need”, “supports intestinal health”, “helps maintain a healthy digestive tract”, etc. The packages also bear the disclaimer that the statements “have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease.”

In your letter, you suggest the imported products should be classified in either subheading 3002.90.5050, or subheading 3002.90.1000, Harmonized Tariff Schedule of the United States (HTSUS), the provisions for other cultures of micro-organisms and similar products, or other ferments, respectively. We do not agree. These subheadings cover raw materials for manufactured products. The above-described products, filled gelatin capsules, are finished products marketed as dietary supplements, and would not fall in either subheading.

The applicable subheading for the bacteria cultures encapsulated in gelatin capsules will be 2106.90.9998, HTSUS, which provides for food preparations not elsewhere specified or includedotherotherother. The rate of duty will be 6.4 percent ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

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 Stanley Hopard at 646-733-3029.


Robert B. Swierupski

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