HQ 084864: Fruit Snacks

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 084864
                                       October 10,1989
            CLA-2 CO:R:G 084864 H
            CATEGORY: Classification
            Tariff No.: 2008.92.90

            Mr. Jeffrey H. Pfeffer
            Fritz Companies, Inc.
            40 Exchange Place, 12th Floor
            New York,NY 10005

            RE: Fruit Snacks

            Dear Mr. Pfeffer:

                 Your letter of June 12, 1989, concerns New York Ruling
            Letter (NYRL) 837674, dated March 12,1989, which involved the
            tariff classification under the Harmonized Tariff Schedule of
            the United States (HTSUS), of Okanagan Fruit Snacks.

            FACTS:
                The samples submitted were flat, rectangular semi-solid
            forms, about 4 inches in length, 2-1/4 inches in width, and 1/2
            ounce in weight, and packaged in cellophane wrapper.  They are
            said to be composed of an apple concentrate base, which is
            flavored with apricot, peach, raspberry, strawberry, or sour
            cherry paste, with added apple fiber and a small amount of
            lemon flavor for tartness. The label advertises the snacks as
            being "'All Fruit' No Sugar Added."

            ISSUE:

                Whether Okanagan Fruit Snacks are classifiable as sugar
            confections in subheading 1704.90.20, HTSUS, or under the
            heading for other mixtures of fruit, nuts, and other edible
            parts of plants, otherwise prepared or preserved, whether or
            not containing added sugar or other sweetening matter or
            spirit, not elsewhere specified or included, in subheadings
            2008.92.9090, HTSUS, or 2008.99.0500, HTSUS, depending on the
            flavor.
























                                          -2-


            LAW AND ANALYSIS:

                 While it is admitted that there is no added sugar in the
            products, it is claimed that they are, nonetheless, sugar
            confectionaries, because the apple concentrate supplies the
            added sugar in the form of fructose.

                 Classification of merchandise under the HTSUS is governed
            by the General Rules of Interpretation (GRI's).  GRI 1 provides
            that classification is determined first in accordance with the
            terms of the headings and any relative Section and Chapter
            Notes.  The Explanatory Notes, which should be consulted for
            guidance in the interpretation of the provisions of the HTSUS,
            state, in regard to heading 1704, "Sugar Confectionary..", that
            the heading covers most of the sugar preparations which are
            marketed in solid or semi-solid form, generally suitable for
            immediate consumption and collectively referred to as
            sweetmeats, confectionary or candies.  The products covered in
            the heading are said to contain sugar or to be based on sugar.
            In support of classification of a confectionary, Leaf Brands,
            Inc., v. United States, 70 Cust. Ct. 66, ( C.D. 4409) (1973),
            is cited.  However, the product in issue in that case involved
            one which was 95 percent dextrose with flavoring added.
            In other words, the product was virtually all sugar.  In
            contrast, the fruit snacks do not contain added sugar, but
            contain apple juice concentrate as the sweetening agent.  Apple
            juice concentrate is classifiable as apple juice in subheading
            2009.70.00, HTSUS, and not as a flavored syrup in 2106.90.50,
            HTSUS.  Customs defines a fruit syrup as a fruit juice to which
            50 percent sugar has been added and has at least 33-1/3 pure
            fruit juice.

                 In addition it is claimed that another reason for
            classifying the snacks in heading 1704 is that the Explanatory
            Notes mention that fruit pastes put up in the form of a
            confectionary are classifiable in that heading.  The notes
            describe fruit pastes as being evaporated purees of solid or
            almost solid consistency.  Fruit purees are prepared by boiling
            sieved fruit pulp with or without sugar to a solid consistency.
            There is no indication that the fruit snacks were initially
            pureed.  Regardless of whether or not they were, the
            composition of the finished snacks takes them out of the
            category of fruit pastes.


















                                          -3-


                  It is also argued that the snacks are not to be included
            in heading 2008 because the products provided for in the
            heading are usually in "whole, in pieces or crushed" and the
            fruit snacks are in a semi-solid paste form.  Included in the
            examples of foods classifiable in heading 2008 is peanut
            butter, which generally considered to be in a paste form.
            Therefore, upon review of all of the classification
            possibilities, heading 2008 appears the most specific.

            HOLDING:

                  Okanagon Fruit Snacks are classifiable in heading
            2008.92.90, HTSUS, except for apple cinnamon flavor which is
            classifiable in subheading 2008.99.0500, HTSUS.

                  NYRL 837694 is affirmed.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division





































            6 cc: Area Dir., N.. Seaport
            J. Hurley library/peh
            084864