HQ 084642: Cream Liqueur Whipped Topping

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                       HQ 084642

                                   November 21, 1989


            CLA-2 CO:R:C:G 084642 JGH

            CATEGORY: Classification

            TARIFF NO.: 1901.90.3040, HTSUS

            Harvey M. Applebaum, Esq.
            Covington & Burling
            1201 Pennsylvania Ave., N.W.
            P.O. Box 7566
            Washington, D.C. 20044

            RE: Cream Liqueur Whipped Topping

            Dear Mr. Applebaum:

                 Your letter of May 30, 1989, concerns the tariff
            classification, under the Harmonized Tariff Schedule of
            the United States (HTSUS), of a dessert whipped cream
            topping made in Holland, and imported by W. A. Taylor and
            Company, a subsidiary of Hiram Walker and Sons, Inc.

            FACTS:

                 The product is said to consist of about 24 percent by
            weight cream having a butterfat content of 35 percent, 37
            percent by weight liqueur concentrate at 32 percent alcohol
            by volume, 16 percent by weight corn sugar, 12 percent water,
            4 percent cacao fat, 3.5 percent dry glucose, and a stabilizer.

                 The product is packaged in an aerosol container and is
            to be sprayed on the top of hot drinks, fruits and parfaits,
            and desserts such as cakes, brownies, puddings and pies.
            It is described as being a liqueur in a new form.

                 A comparison of a cream liqueur with the aerosol topping
            was given as follows:
                                              Per Liter
                                           Cream Liqueur     Aerosol
            Liqueur
              Coffee Liqueur Concentrate          0            417 g
               (32.8 % Alcohol by Volume)
              Whiskey Liqueur Concentrate
               (41.8% alcohol by volume)        469 g            0 g















                                          -2-


            Fresh Cream 35% Fat               366 g            270 g
            Dry Corn Sugar                      0 g            180 g
            Water                             160 g            140 g
            Cacao Fat                           0 g             45 g
            Dry Glucose and/or Sucrose         32 g             40 g
            Stabilizers                        34 g             34 g

            ISSUE:

                 Whether the whipped cream topping is classifiable under
            the provision for cordials, liqueurs, kirschwasser and ratafia
            in subheading 2208.90.45, HTSUS, or the provision for other
            food preparations of goods of headings 0401 to 0404, not
            containing cocoa powder or containing cocoa powder in a
            proportion by weight of less than 10 percent, not elsewhere
            specified or included: articles of milk or cream not specially
            provided for, in subheading 1901.90.3040, HTSUS, and subject
            to the quota restraints of subheading 9904.10.60, HTSUS.

            LAW AND ANALYSIS:

                 Essentially, it is your contention that the product is a
            liqueur modified for aerosol use and that the alcohol gives the
            whipped cream product its essential character.  You also assert
            that the product is an emulsion as described in the Explanatory
            Notes to Chapter 22, HTSUS, in listing the types of beverages
            included in that chapter.

                 Classification under the HTSUS is governed by the General
            Rules of Interpretation (GRI's).  GRI 1 provides that
            classification is determined first by the headings and relative
            Section and Chapter Notes.  GRI 3(b) states that composite
            goods of different materials which can not be  classified by
            reference to GRI 3(a), shall be classified as
            if they consisted of the material which gives them their
            essential character.  GRI 3(c) provides that when goods cannot
            be classified by reference to GRI 3(a) or (b), they shall be
            classified under the heading which occurs last in numerical
            order among those of equal merit.






















                                          -3-


                 The Explanatory Notes which should be consulted for
            guidance in interpretations of the provisions of the HTSUS,
            state for Chapter 22, "Beverages, Spirits and Vinegar", that
            heading 2208 covers spirits, liqueurs, and other spiritous
            beverages.  The notes state that the products covered in
            Chapter 22 are quite distinct from the foodstuffs covered in
            other chapters.  They further identify the various products
            covered, which include distilled alcoholic liquids and
            beverages.  For heading 2208, the Explanatory Notes mention
            liqueurs as spiritous beverages.

                 Thus, for classification purposes, the product has to be
            a beverage before it can be considered a liqueur and classified
            in heading 2208.  The product is not a beverage but a topping
            of cream, sugars and a liqueur flavoring.  For tariff purposes
            a beverage is a product which is drinkable in its condition as
            imported.  Strohmeyer v United States, 28 CCPA 34, C.A.D. 121.
            The product is not and is not intended to be potable in its
            condition as imported.  In the comparison table given for cream
            liqueur and the aerosol liqueur, it is noted that, while all
            the ingredients in the liqueur are in the topping, not all the
            topping components are in the liqueur.  The topping contains
            both corn sugar and cocao fat, which are apparently added
            because they give the topping a consistency and texture which
            are not needed for the liquid liqueur.  As to the question of
            considering alcohol as its essential character as set forth in
            GRI 3(b), this concept is considered where the import to be
            classified is a mixture, or composite goods of different
            materials or components, or sets. Even if the topping is
            considered a mixture, GRI 1 would still apply, since food
            preparations in heading 1901 include mixtures.  In its
            condition as imported, the product is not a beverage but a
            food preparation with a milk or cream base.  Thus, since
            heading 1901 would apply, there is no need to resort to GRI
            3(c).

                 Generally, although consideration is given to opinions of
            other agencies, such opinions are not controlling, especially
            where there is a specific  tariff provision which clearly
            describes the imported product.





















                                          -4-


            HOLDING:

                 Liqueur-flavored whipped cream topping is classifiable
            under subheading 1901.90.3040, HTSUS, dutiable at the rate of
            17.5 percent ad valorem, and subject to the quota restrictions
            of subheading 9904.10.60, HTSUS.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division















































            6 cc: Area Dir., N.Y. Seaport
            Hurley library/peh
            084642
            1 cc: Terry Cates
               Chief, Industry Compliance
               Bureau of Alcohol, Tobacco and Firearms
               Room 6205
               1200 Pennsylvania Ave., N.W.
               Washington, D.C. 20226