H232357

HQ H232357 May 11, 2023 OT:RR:CTF:CPMMA H232357 SPH CATEGORY: Classification TARIFF NO.: 3808.91.2501 Ms. Dody Trombley Norman G. Jensen, Inc. P.O. Box 2457 Champlain, NY 12919 RE: Revocation of NY F86615 and NY A84405: Classification of Flea Drops Dear Ms. Trombley: This is in reference to New York Ruling Letter (NY) F86615, dated May 24, 2000, issued to you for your client, Confab Laboratories, Inc., concerning the tariff classification of a flea treatment for dogs and cats under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling, U.S. Customs and Border Protection (CBP) classified the subject merchandise in subheading 3004.90.9003, HTSUSA, which provided for veterinary medicaments. We have reviewed NY F86615 and find it to be in error. For the reasons set forth below, we hereby revoke NY F86615 and one other ruling with substantially similar merchandise: NY A84405, dated June 17, 1996, which was issued to Bayer Corporation. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice of the proposed action was published in the Customs Bulletin, Volume 55, No. 51, on December 29, 2021. Three comments, which will be addressed below, were received in response to this notice. FACTS: The subject merchandise, Gentle Touch™ Flea Drops, consists of six, snap-open, plastic tubes put up for retail sale in a paperboard container. Each tube contains a formulated insecticide indicated for topical application on dogs and cats to kill fleas. The two active ingredients contained in the formulation are sodium lauryl sulfate (seven percent) and citric acid (five percent). Both of these active ingredients are considered pesticides by the U.S. Environmental Protection Agency (EPA). The inert ingredients are hydrogenated vegetable oil, soybean oil and glycerin. ISSUE: Are the subject flea drops classified in subheading 3004.90.9203, HTSUSA, which provides for, in pertinent part, “Medicaments … put up in measured doses or in forms or packings for retail sale: Other: Other: For veterinary use…”, or in subheading 3808.91.2501, HTSUSA, which provides for: “Insecticides, rodenticides, fungicides …put up in forms or packings for retail sale or as preparations …: Other: Other: Other…”? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The 2023 HTSUS provisions under consideration are as follows: 3004 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 (including those in the form of transdermal administration systems) or in forms or packings for retail sale: 3004.90 Other: 3004.90.92 Other: 3004.90.9203 For veterinary use … 3808 Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packing for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers): Other: 3808.91 Insecticides: Other: Containing any aromatic or modified aromatic insecticide: 3808.91.2501 Other… * * * Note 1(e) to Chapter 38 provides as follows: This chapter does not cover: *** (e) Medicaments (heading 3003 or 3004) … The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System at the international level and are generally indicative of the proper interpretation of these headings. See Treas. Dec. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 30.03 states that: This heading covers medicinal preparations for use in the internal or external treatment or prevention of human or animal ailments. These preparations are obtained by mixing together two or more substances. However, if put up in measured doses or in forms or packings for retail sale, they fall in heading 30.04. EN 30.04(f) states that: The heading also excludes: *** (f) Insecticides, disinfectants, etc., of heading 38.08, not put up for internal or external use as medicines. EN 38.08(I) states that: The products of heading 38.08 can be divided into the following groups: (I) Insecticides Insecticides include not only products for killing insects, but also those having a repellent or attractant effect. The products may be in a variety of forms such as sprays or blocks (against moths), oils or sticks (against mosquitoes), powder (against ants), strips (against flies), cyanogen gas absorbed in diatomite or paperboard (against fleas and lice). Many insecticides are characterized by their mode of action or method of use. Among these are: - insect growth regulators: chemicals which interfere with biochemical and physiological processes in insects. - fumigants: chemicals which are distributed in the air as gases. - chemosterilants: chemicals used to sterilize segments of an insect population. - repellents: substances which prevent insect attack by making their food or living conditions unattractive or offensive. - attractants: used to attract insects to traps or poisoned baits … EN 38.08(c) states that: This heading excludes: (c) Disinfectants, insecticides, etc., having the essential character of medicaments, including veterinary medicaments (heading 30.03 or 30.04) … * * * Heading 3004, HTSUS, provides for medicaments for therapeutic or prophylactic uses. Note 1(d) to Chapter 38 excludes medicaments of heading 3004, HTSUS, from classification in Chapter 38. Therefore, if the flea treatments are classifiable as medicaments, they cannot be classified as insecticides of heading 3808, HTSUS. In Inabata Specialty Chems. v. United States, 29 C.I.T. 419, 423 (Ct. Int’l Trade 2005), the U.S. Court of International Trade (“CIT”) defined “therapeutic” as follows: In determining the common meaning of the term “therapeutic” for purposes of classifying an article under HTSUS Heading 3004, the court in Warner-Lambert Co. v. United States, 341 F. Supp. 2d 1272, 1277, 28 Ct. Int'l Trade 939 (Ct. Int'l Trade 2004), referred to Stedman's Medical Dictionary, which provides that “therapeutic” is “relating to . . . the treatment, remediating, or curing of a disorder or disease.” STEDMAN'S MEDICAL DICTIONARY 1821 (27th ed. 2000) (emphasis added). The term “therapeutic” has been defined for tariff purposes as embracing “the alleviative or palliative, as well as the curative or healing qualities.” J.E. Bernard & Co., Inc. v. United States, 58 Cust. Ct. 23, 28, 262 F. Supp. 434, 438, C.D. 2872 (1967); see also id. at 29 (finding that hearing aids which ease the affection of deafness without curing it are therapeutic devices); United States v. Alltransport, Inc., 44 C.C.P.A. 149, 152 (1957) (a product is a medicinal if it is "of use or believed by the prescriber or user fairly and honestly to be of use, in curing or alleviating, or palliating or preventing, some disease or affliction of the human frame"). A medicament is therapeutic it if treats, remediates, or cures a disease or affliction of a human or animal body. Similarly, a medicament is prophylactic if it prevents a disease or affliction of a human or animal body. To be classified under heading 3004, HTSUS, a medicament must either be therapeutic or prophylactic. The instant flea drops are not a treatm

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The 2023 HTSUS provisions under consideration are as follows:3004 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 (including those in the form of transdermal administration systems) or in forms or packings for retail sale: 3004.90 Other:3004.90.92 Other:3004.90.9203 For veterinary use … 3808 Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packing for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers): Other:3808.91 Insecticides: Other: Containing any aromatic or modified aromatic insecticide:3808.91.2501 Other…* * *Note 1(e) to Chapter 38 provides as follows:This chapter does not cover:***(e) Medicaments (heading 3003 or 3004) …The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System at the international level and are generally indicative of the proper interpretation of these headings. See Treas. Dec. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).EN 30.03 states that:This heading covers medicinal preparations for use in the internal or external treatment or prevention of human or animal ailments. Thes