HQ 952273: Classification of a milk product designed for cats.

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 952273
                            August 18,1992


CLA-2 CO:R:C:F  952273  JGH

CATEGORY: Classification

TARIFF NO.: 2309.10.00

Mr. Frank Brennan
DeAngelus & Schaffer Associates
The Willard Office Bldg.
Suite 1150
1455 Pennsylvania Ave., N.W.
Washington, D.C. 20004

RE: Classification of a milk product designed for cats.

Dear Mr. Brennan:

     Your letter of July 24, 1992, concerns the classification of
a milk product for cats which would be made in Canada.

FACTS:

     "Whiskas" Ultramilk or Milk Plus, made in Canada by Kal Kan
Foods, Inc., is said to be designed as a nutritional supplement
for cats.   As many cats are said to be lactose intolerant, the
product is intended to provide a nutritional, low lactose drink
with a malt flavor.

     "Whiskas" is said to contain:
         
        Component             Percentage

         Milk                   94.0
         Non-fat Milk            3.0
         Malt Extract            2.5
         Other(including 
           lactase)              0.5

     It will be packaged in retail 200 milliliter packages,
intended to provide 4 servings.
                              - 2 -

ISSUE:

     Whether "Whiskas", a pet food product consisting of 97%
milk, is classified as a dog or cat food put up for retail sale
in subheading 2309.10.00, HTSUS, or as an animal feed containing
milk or milk derivatives in subheading 2309.90.30, HTSUS.

LAW & ANALYSIS:

     The basic question is whether "Whiskas" is a milk product
based on the provisions of headings 0401 to 0404, HTSUS.
The Explanatory Notes to Chapter 4, HTSUS, point out that the
dairy products covered may contain, in addition to natural milk
constituents, small quantities of stabilizing agents which serve
to maintain the natural consistency of the product during
transport in liquid state, as well as very small quantities of
anti-oxidants or vitamins not normally found in the product; in
addition very small quantities of chemicals necessary for
processing are permitted. 
     
     In this case you have milk with malt added as a flavor. 
Malt is an additive not permitted in products classified in
headings 0401 to 0404, HTSUS.  It is concluded, therefore, that
"Whiskas" is a pet food designed for cats packaged in a retail
container - subheading 2309.10.00, HTSUS, a provision more
specific than the one for animal feeds containing milk or milk
derivatives.  However, it is possible that importations of this
product are subject to the provisions of the Import Milk Act.  It
is therefore suggested that you contact:

               U. S. Food and Drug Administration
               Division of Regulatory Guidance
               HFF 314, 200 C St. S.W.
               Washington, DC 20204

     In addition it is suggested that you contact:

               U.S. Department of Agriculture
               A.P.H.I.S. Veterinary Services
               Federal Building, Room 756
               6505 Belcrest Road
               Hyattsville, Md 20782

concerning any regulations that agency might have bearing on the
importation of this product.
                              - 3 -

HOLDING:

     "Whiskas" is classifiable as dog or cat food put up for
retail sale in subheading 2309.10.00, HTSUS.  It is free of duty. 
     
                              Sincerely,




                              John Durant, Director