HQ 083533: Tariff classification of herbal cigarettes

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 083533

                                      May 12, 1989

             CLA-2 CO:R:C:G  083533  SM

             CATEGORY:  Classification

             TARIFF NO.:  2402.90.00

             Dr. I. Redstone
             Honeyrose Products Ltd.
             Creeting Road
             Stowmarket, Suffolk 1P14 5AY
             England

             RE:  Tariff classification of herbal cigarettes

             Dear Dr. Redstone:

                   Your letter of November 18, 1988, addressed to our New
             York office, requesting a tariff classification ruling for
             herbal cigarettes, has been referred to this office for reply.

             FACTS:

                   Samples of the cigarettes were submitted.  They contain
             no tobacco or nicotine but are made with herbs or other
             materials including coltsfoot, clover, rose petals, marsh-
             mallow leaves, and ginseng.  They are stated to be for smokers
             who wish to smoke less and avoid the effects of nicotine.  You
             inquire as to both their tariff status and federal excise tax
             status.

             ISSUE:

                   How are the herbal cigarettes classified?  Are federal
             excise taxes applicable?

             LAW AND ANALYSIS:

                   Classification under the Harmonized Tariff Schedule of
             the United States Annotated (HTSUSA) is in accordance with the
             General Rules of Interpretation.  GRI 1 provides that classi-
             fication is determined first in accordance with the terms of
             the headings of the tariff and any relative section or chapter
             notes and then, if the headings and notes do not otherwise
             require, in accordance with the remaining GRI's.
















                                           -2-


                   Heading 2402, HTSUSA, covers cigarettes of tobacco or of
             tobacco substitutes.  Note 1 of Chapter 24 excludes medicinal
             cigarettes from the chapter.  The term tobacco substitutes is
             not defined in the tariff.  The Explanatory Notes (EN), the
             official interpretation of the HTSUSA at the international
             level, for heading 2402 indicate that the term cigarettes of
             tobacco substitutes is intended to include, "for example,
             'cigarettes' . . . made from specially processed leaves of a
             variety of lettuce, containing neither tobacco nor nicotine."
             The EN go on to state that "cigarettes containing certain
             types of products specifically formulated to discourage the
             habit of smoking but which do not possess medicinal properties
             remain classified in this heading."  Thus nonmedicinal non-
             tobacco cigarettes such as herbal cigarettes are intended to
             be included under this heading.

                   Goods classified under heading 2402, HTSUSA, may be sub-
             ject to federal excise taxes.  Cigarettes are included.  26
             U.S.C.A. { 5701(b) (1980 and Supp. 1988).  However, the term
             cigarette is limited to wrapped rolls of tobacco.  26 U.S.C.A.
             { 5702(b).

             HOLDING:

                   The herbal cigarettes are classified under subheading
             2402.90.00, HTSUSA, a provision including other cigarettes not
             containing tobacco.  The 1989 Column 1 rate of duty is
             $2.34/kg plus five percent ad valorem.  No federal excise tax
             applies.

                                        Sincerely,



                                        John Durant, Director
                                        Commercial Rulings Division

























             6cc:  Area Director of Customs
                   NY Seaport Area
             cc:   Legal Reference section
             cc:   NIS Ralph Conte