us-cbp-cross-rulings-hq-081662•HQ 081662: Classification of Certain Sugar Pellets
HQ 081662: Classification of Certain Sugar Pellets
us-cbp-cross-rulings-hq-081662HQ 081662: Classification of Certain Sugar PelletsGuidance
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 081662
September 19, 1988
CLA-2 CO:R:C:G 081662 JGH
CATEGORY: Classification
TARIFF NO.: 183.05, TSUS
David I. Wilson, Esq.
Baker & Hostetler
Attorneys at Law
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
Re: Classification of Certain Sugar Pellets
Dear Mr. Wilson:
This is in reference to your submission of January 15,
1988, and subsequent meetings and submissions, concerning the
classification of certain sugar pellets produced in France,
shipped to the United States in 30 kilogram containers, and
used in the production of homeophathic medicines and remedies.
FACTS:
You state that your client imports 3,000 kilograms
annually of these sugar pellets, and that subsequent to
importation the sugar pellets, which consist of 85 percent
sucrose and 15 percent lactose, are treated with one of about
1500 homeophathic medicines by a saturation process to make a
finished homeophathic remedy. The pellets are said to have an
imported cost of $2.37 per pound, and are small spheres of
about 2 mm in size and with a mass of about 50 mg. You note
that they have been classified under the provision for other
polysaccharides in item 493.68, and that the classification
was changed to that for mixtures in item 432.28, with the rate
of duty for item 493.68. In December 1987, a ruling received
from the port of New York in which the pellets were classified
under the provision for other edible preparations, n.s.p.f.,
in item 183.05, TSUS, and since the pellets contain 85 percent
sucrose and were not imported in consumer retail packages,
they were subject to the quota provision in item 958.15, TSUS,
which prevents the products from entering the country.
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ISSUE:
Whether the sugar pellets are classifiable under the
provision for other edible preparations in item 183.05, TSUS,
or whether they are classifiable as mixtures in item 432.28,
TSUS, or as a drug or an entirety.
LAW AND ANALYSIS:
Subsequent to importation the sugar pellets are used to
produce homeophathic remedies by means of saturation process.
It is stated that the pellets are used with some 1500
different remedies. Since the pellets are used to administer
the remedies it is contended that the pellets cannot be
considered foods substances within the meaning of Headnote 3,
Part 15(B), Schedule 1, TSUS. In this headnote the term
"edible preparations" is defined as substances chiefly used as
food or as a food substance. In view of use of the pellets,
it is argued that the pellets are not a food substance.
Rather, it is urged that they be regarded as a drug, since
they are used with medicinal substances. In support of this
contention definitions of drugs from other agencies and
various court cases are cited. While Customs may consider
definitions of terms used by other agencies, where the tariff
contains a definition, it is that definition which applies.
Headnote 2, Part 3, Schedule 4, TSUS, defines the term "drugs"
as a substance which has therapeutic or medicinal properties.
Also relied on was the court's decision in Austin Chemical v.
United States, Slip Op. 87-21, where the court concluded that
an isomer of a certain acid, which it admitted had no
therapeutic or medicinal properties, was nevertheless
classifiable as a drug since the chemical of which it was an
isomer was listed in the TSUS as a drug. However, sugar
pellets in and of themselves are not a drug under any
definition of the term and they are not essential to the
administration of the remedies.
Another argument advanced is that the pellets should be
considered classifiable as a drug under the doctrine of
entireties. The pellets are shipped in bulk and are to be
used with any one of 1500 remedies. As a general proposition,
articles are to be regarded as entireties for tariff purposes
where there is a natural affinity in composition, particularly
where the identity of each article is merged into that of the
resulting combination. Here the sugar pellets are finished
products, capable of any number of uses. The dutiable
condition of the imported articles must be ascertained by an
examination of them in their condition as imported. The
pellets are not intended for or subordinated to any one use
but, as imported, are common carriers capable of any of the
many uses for sugar in this form.
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It is also urged that the special construction of the
pellets removes them from the category of the ordinary sugar
tablets or pellets under the "more than" doctrine. The
pellets complex and expensive method of production, requiring
16 days of processing, it is contended, is necesssary to
provide pellets of uniform porosity, to ensure the homogeneous
absorption of the active ingredient. They are manufactured
specifically to be used with the homeophathic remedies. In
this regard it is interesting to note that in one of the
patent descriptions provided for the machinery used, the
drying installation is said to be designed for drying objects
of sugar, whether coated candies or globules for homeopathic
medicines. In other words the pellets whether for candy or
intended as a medicinal carrier were no more than a form of
merely sugar. As mentioned previously, Headnote 3, Part
15(B), Schedule 1, defines the term "edible preparation" as
substances chiefly used as human food or as an ingredient in
such foods. General Headnote 10(e)(i) defines use as
referring to the use in the United States of articles or a
class or kind to which the imported articles belong, and the
chief use is the use which exceeds all other uses combined.
It is not the use of a particular shipment but rather the use
of a class or type of goods involved which determines the
chief use. Regardless of the complexity and expense of
manufacture the sugar pellets in question are of a class of
product which is chiefly used for food purposes, and under
Headnote 3, mixtures of food or food ingredients are to be
included in the definition of edible preparations, thus making
it a more specific provision for classification purposes.
Sugar pellets manufactured in this country, as mentioned in
your latest submission, are intended to be used as a base for
confectionary or medicinal use. In this latter use they
provide flavor as well as act as a carrier.
Even if it is conceded that the complex method of
manufacture of these sugar pellets is necessary to ensure the
homogeneous absorption of the active ingredients, the purpose
of using sugar is also for its sweetening qualities. It is
noted that the pellets have a sweet taste when just one of the
sample pellets is placed on the tongue. As stated in one of
the cases cited by the importer, Nutrilab, Inc. v. Schweiker,
713 F 2d. 335, food includes articles used by people primarily
for taste, aroma, or nutritive value. In the technical
literature submitted, the globules or pellets are described as
being of solid consistency, obtained by the successive
addition of sucrose and lactose to particles of sucrose or
lactose or to a mixture of both. It is further stated that
they are intended for oral or sublingual administration. The
pellets characteristics are described as "near spherical white
pellets, sweet tasting, easily soluble in water." In the
advertising literature submitted, in discussing the various
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dosages to be administered, it is apparent that usually a
single pellet is not prescribed; rather dilutions of the
active ingredient involved require a "multi-dose" with an
average dose of 3 to 5 pellets or unit dose which contains
"200 spherical sucrose pellets" (and) "the entire contents
should be placed under the tongue." If a single pellet is
found to be sweet, it would be difficult to conclude that 200
pellets placed underneath the tongue were not intended to have
a saccharide effect and that sweetness was not a quality that
was considered when the pellets were developed, especially
where bitter tasting medicines are concerned.
HOLDING:
While it is acknowledged that these pellets are specially
constructed for a specific purpose, they are entirely of
sugar, and ultimately serve the same function as other sugar
pellets or tablets: they provide a carrier for the
administration of a medicine or for a confectionary coating
and in addition contain a desired sweetness which is a quality
of food. Therefore, they are properly classifiable under the
provision for other edible preparations in item 183.05 and
subject to the quota restriction in item 958.15, TSUS.
Under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA) scheduled to replace the TSUS on January 1,
1989, the sugar pellets are classifiable under the provision
for food preparations not elsewhere specified or included:
Other, in subheading 2106.90.60, HTSUSA. The rate of duty is
10 percent ad valorem. In addition the pellets would be
subject to a quota restriction in subheading 9904.50.40,
HTSUSA, similar to the one they were subject to in the TSUS.
Sincerely,
John Durant, Director
Commercial Rulings Division
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