HQ 083895: Tariff classification of liquid meal.

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 083895

                                    June 21, 1989

          CLA-2 CO:R:C:G 083895 SS; 837204

          CATEGORY: Classification

          TARIFF NO.: 2106.90.60

          William J. Maloney, Esq.
          Rode & Qualey
          295 Madison Avenue
          New York, New York 10017

          RE:  Tariff classification of liquid meal.

          Dear Mr. Maloney:

               This is in response to your letter dated February 17, 1989,
          on behalf of Corpak, Inc., addressed to our New York office,
          requesting a tariff classification for products designated
          Entralife and Entralife HN, imported from Canada, under the
          Harmonized Tariff Schedule of the United States (HTSUS).

          FACTS:

               The products under consideration are designated Entralife
          and Entralife HN, both products hereinafter referred to as
          "Entralife".  It is stated that Entralife is a vanilla flavored
          liquid meal replacement product, formulated to provide a
          complete, balanced nutrition for patients requiring a complete
          high protein diet.

               It is stated that Entralife is marketed primarily for
          patients who, because of physical impairment, are unable to drink
          the product without assistance and require tube feeding.  The
          product will be packed in 1 liter and 250 milliliter Tetra Brix
          packages of the type commonly used for the packaging of meal
          replacement and other types of beverages.  The packages are also
          compatible with tube feeding administration sets that incorporate
          a tube that is led through the patient's nose and esophagus to
          the stomach.  Entralife, which is not imported with the tube feed
          apparatus, will be sold through distributors to hospitals,
          nursing homes, and other health care facilities.  



















                                         -2-


               It is further stated that Entralife is in chief value of
          caseinates and contains all the vitamins, minerals, protein,
          fiber and other constituents recommended for nutritional
          purposes.  The manufacturing processes in the production of
          Entralife include blending measured quantities of dry
          ingredients, heating and mixing dry ingredients and liquid
          components, aseptic processing and packaging.

          ISSUE:

               Whether Entralife is classifible in subheading 2202.90.9090,
          as other, other beverages, in subheading 3004.50.40, as other
          medicaments containing vitamins, or in subheading 2106.90.60, as
          food preparation not elsewhere specified or included,.

          LAW AND ANALYSIS:

               Classification 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 or Chapter notes.

               Counsel claims that Entralife is a liquid suitable for
          drinking and is within the common meaning of the statutory term
          "beverage".  Based on this claim, counsel proposes that Entralife
          is properly classifiable under subheading 2202.90.9090, HTSUS.
          Counsel also claims in the alternative that the subject
          merchandise is properly classifiable under subheading 3004.50.40,
          HTSUS.

               Heading 2202, HTSUS, provides for waters, including mineral
          waters and aerated waters, containing added sugar or other
          sweetening matter or flavored and other nonalcoholic beverages,
          not including fruit or vegetable juices of heading 2009.

               The Explanatory Notes constitute the official interpretation
          of the tariff at the international level.  The Explanatory Notes
          to heading 2202, HTSUS, state that this heading includes
          sweetened or flavored mineral waters (natural or artificial);
          beverages such as lemonade, orangeade, cola, consisting of
          ordinary drinking water, sweetened or not, flavored with fruit
          juices or essences, or compound extracts; tamarind nectar ready
          for consumption as a beverage by the addition of water and sugar
          straining; and certain other beverages ready for consumption,
          such as those with a basis of milk or cocoa.  These notes further
          state that medicaments of heading 30.03 or 30.04.

               Webester's Third New International Dictionary (unabridged)
          (1965), defines "beverage" as:












                                         -3-


               1: liquid for drinking esp: such liquid other than water (as
               tea, milk, fruit juice, beer) usu. prepared (as by
               flavoring, heating, admixing) before being consumed.

               The term "beverage" is not defined in heading 2202, HTSUS,
          or in the Explanatory Notes to this heading.  Further, neither
          the dictionary definition nor the above statutory language
          supports the claim, or even suggests that a liquid food product
          such as Entralife is within the common meaning of the statutory
          term "beverage".  The above language indicates that beverages are
          sweetened or flavored waters, or extracts or juices of fruits
          etc., and liquids which are predominantly used as beverages.

               In view of the foregoing, Entralife is not properly
          classifiable under heading 2202, HTSUS.

               Heading 3004, HTSUS, provides for medicaments (excluding
          goods of heading 3002, 3005 or 3006) consisting of mixed or
          unmixed products for therapeutic or prophylactic uses, put up in
          measured doses or in forms or packings for retail sale.

               Note 1(a) to Chapter 30, HTSUS states that the chapter does
          not cover "food or beverages (such as dietetic, diabetic or
          fortified foods, food supplements, tonic beverages and mineral
          waters) (section IV)."

               The Explanatory Notes to heading 3004 provide that the
          heading does not apply to foodstuffs or beverages such as
          dietetic, diabetic or fortified foods, tonic beverages or mineral
          waters, which are classified under their own appropriate
          headings.  Food preparations containing only nutritional
          substances are among those foodstuffs or beverages.  The Notes
          further state that the major nutritional substances in food are
          proteins, carbohydrates and fats, and that vitamins and mineral
          salts also play a role in nutrition.  The heading excludes food
          supplements containing vitamins or mineral salts which are put up
          for the purpose of maintaining health or well-being, but which
          have no indication as to use for the prevention or treatment of
          any disease or ailment.  The Explanatory Notes also state that
          foodstuffs or beverages containing medicinal substances are
          excluded from the heading if those substances are added solely to
          ensure a better dietetic balance, to increase the energy-giving
          or nutritional value of the product or to improve its flavor,
          provided that the product retains its character as a food stuff
          or beverage.

               Heading 2106, HTSUS, provides for food preparations not
          elsewhere specified or included.  Note 1(f) to Chapter 21 states
          that the chapter does not cover products of heading 3003 or 3004.












                                         -4-


               Explanatory Note (B) (16) to heading 2106, states that the
          heading covers preparations referred to as food supplements which
          are "based on extracts from plants, fruit concentrates, honey,
          fructose, etc.", and which contains added vitamins.  The note
          further states that these preparations are often put up in
          packaging with indications that they maintain general health or
          well-being.  Excluded from this heading are similar preparations
          intended for the prevention or treatment of diseases or ailments.
          Such preparations are classifiable in heading 3003 or 3004,
          HTSUS.

                 The facts submitted do not indicate any therapeutic or
          prophylactic uses, nor the presence of any medicinal substances
          in Entralife.  The primary function of Entralife is nutritional.
          It is administered for the complete or supplemental nutrition of
          persons, who, due to various medical conditions, cannot or are
          unable to eat ordinary meals, or who require special or
          supplemental nutritional support.

               Applying the above chapter notes and explanatory notes, we
          find that Entralife is not classifiable under heading 3004,
          HTSUS, because these products are essentially foodstuffs having
          primarily a nutritional function, and containing only nutritional
          substances, such as proteins, carbohydrates, and fats, vitamins
          and minerals.

               Entralife is a food replacement in liquid form and is
          properly classifiable under the provision for foods.

          HOLDING:

               In view of the foregoing, Entralife is properly classifiable
          in subheading 2106.90.60, HTSUS, as food preparations not
          elsewhere specified or included, dutiable at a rate of 10 percent
          ad valorem.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division