HQ 555619: Applicability of sample provision in subheading 9811.00.60, HTSUS, to pharmaceutical tablets

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 555619

                        October 29, 1990

CLA-2 CO:R:C   555619 RA

CATEGORY:  Classification

TARIFF NO.:  9811.00.60

Mr. Jack D. Mlawski
Galvin, Haroian & Mlawski
425 Park Avenue, 29th Floor
New York, New York 10022

Re:  Applicability of sample provision in subheading 
     9811.00.60, HTSUS, to pharmaceutical tablets

Dear Mr. Mlawski:

     This is in response to your letter of March 23, 1990,
requesting a ruling on the eligibility for free entry under
subheading 9811.00.60, Harmonized Tariff Schedule of the 
United States (HTSUS), of sample prescription pharmaceutical
tablets.

FACTS:

     You state that the tablets will be imported in bulk and
repackaged for distribution to physicians who will give them 
to their patients free of charge.  The tablets will be 
repacked in vials or in blister packs in varying amounts and 
the containers will state that the contents are complimentary 
and not for sale.   The purpose of distributing the sample 
tablets through physicians is to create a demand for the 
foreign products.   You indicate that, upon importation, 
either each tablet will be marked "Sample" or the bulk 
container will be marked "Samples."

ISSUE:

     Whether the imported tablets will be entitled to free 
entry as samples for soliciting orders for foreign products 
under subheading 9811.00.60, HTSUS.

LAW AND ANALYSIS:

     Subheading 9811.00.60, HTSUS, provides for the free entry 
of any sample valued not over $1.00 each, or marked, torn,
perforated, or otherwise treated so that it is unsuitable for 
sale or for use otherwise than as a sample, to be used in the 
U.S. only for soliciting orders for products of foreign 
countries.
                              - 2 -

     You believe that your case is similar to that involved in
Italian Drug Importing Co. v. U.S., 46 Cust. Ct. 243, C.D. 
2263 (1961), where the court allowed the free entry claim 
under a precursor provision to subheading 9811.00.60, HTSUS, 
for vitamins imported and distributed to physicians for use as
samples.  However, as you noted, the samples in that case were 
not imported in bulk and repackaged after importation as your
client intends to do.   In our opinion, if the tablets are 
imported in bulk and not individually marked or treated in 
some way to distinguish them from standard merchandise, they 
cannot be considered to fall within the scope of the term
"samples."  The mere marking of the outer container of the 
bulk merchandise would not be sufficient to ensure that the 
tablets are rendered, unsuitable for sale or for use otherwise 
than as a sample" since the tablets could be distributed 
through regular commercial channels and not used as samples 
for taking orders.

     However, if the tablets in their condition as imported 
are individually marked "Sample," they could be treated as 
samples and, under the principle of the Italian Drug case, 
eligible for free entry under subheading 9811.00.60, HTSUSA, 
upon proof that the tablets will be distributed to physicians 
to give to their patients in order to stimulate future orders 
of the foreign product.

HOLDING:

     Pharmaceutical tablets individually marked "Sample" and
imported to be repackaged and distributed to physicians who 
will supply them free of charge to patients are entitled to 
free entry under subheading 9811.00.60, HTSUS, upon submission 
of proof of the intended use.

                              Sincerely,


                              John Durant, Director,
                              Commercial Rulings Division