H314968

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H314968 March 15, 2021 OT:RR:CTF:FTM H314968 MJD CATEGORY: Classification; Origin TARIFF NO.: 2008.97.10; 2008.97.90 Ms. Misty Gibbins Pacific Customs Brokers Inc. 1400 A ST Blaine, Washington 98230 RE: Tariff Classification of Snack Foods; USMCA Dear Ms. Gibbins, This is in response to your request, dated October 5, 2020, for a binding ruling, on behalf of Baby Gourmet Foods Inc. (“Baby Gourmet”), concerning the tariff classification and eligibility of several snack foods called “Slammers” for preferential tariff treatment under the United States-Mexico-Canada Agreement (“USMCA”). Your request, submitted as an electronic ruling request, was forwarded to this office from the National Commodity Specialist Division for review. Our ruling is set forth below. FACTS: The merchandise at issue consists of five different types of snack foods called “Slammers.” The five “Slammers” are the “Awesome Acai Strawberry Apple,” “Epic Orange Mango,” “Chill’n Yumberry Banana Blueberry,” “Pomegranate Grape Crush,” and “Watermelon Kiwi Crush.” The “Slammers” are made of various fruit and vegetables purees, juice concentrates, and other ingredients. According to your submission, they are “marketed for retail sale to young kids as a superfood snack.” The “Slammers” are made in Canada and prepared with the following ingredients: The “Awesome Acai Strawberry Apple,” contains organic apple puree from Argentina classified in subheading 2007.99.48, Harmonized Tariff Schedule of the United States (“HTSUS”), and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack food also contains in amounts of 10 percent or less, organic beet puree from the United States, organic blueberry puree SS from the United States, organic strawberry puree from the United States, organic acai puree from Brazil, organic precooked amaranth flour from Canada, organic lemon juice concentrate from Mexico, and wellmune beta glucan from Columbia. The “Epic Orange Mango,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS, and organic mango puree from Mexico classified in subheading 2007.99.50, HTSUS. The snack food also contains in amounts of 10 percent or less, organic carrot puree from the United States, organic lemon juice concentrate from Mexico, organic orange juice from Mexico, organic vanilla from the United States, and wellmune beta glucan from Columbia. The “Chill’n Yumberry Banana Blueberry,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack food also contains in amounts of 10 percent or less, organic blueberry puree SS from the United States, organic butternut squash puree from the United States, organic yumberry juice concentrate from China, organic blueberry puree from Canada, organic lemon juice concentrate from Mexico, and wellmune beta glucan from Columbia. The “Pomegranate Grape Crush,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack foods also contain in amounts of 10 percent or less, coconut cream UHP from Sri Lanka, concord grape juice concentrate from the United States, whey protein 9420 Isolate from the United States, organic antifoam 3000 from the United States, pomegranate natural organic flavor from Canada, purple carrot juice concentrate from Turkey, pomegranate juice concentrate from Turkey, and lemon juice from Mexico. The “Watermelon Kiwi Crush,” contains organic apple puree from Argentina classified in subheading 2007.99.48, HTSUS, and organic banana puree from Ecuador classified in subheading 2007.99.65, HTSUS. The snack food also contains in amounts of 10 percent or less, whey protein 9420 isolate from the United States, Niagara white grape juice concentrate from the United States, red beet juice concentrate from the United States, strawberry flavor from Canada, watermelon natural organic flavor from Canada, strawberry juice concentrate from the United States, watermelon juice concentrate from the United States, lemon juice concentrate from Mexico, and organic anti foam from the United States. In Canada, the abovementioned ingredients go through a process of “blending, homogenization, and pasteurization.” The products are then “hot filled into 90-gram net weight, laminated PET 12/AL9/PE90 pouches, sealed with a plastic twist off lid and then cooled. The 90-gram pouches are packed four to a box for retail sale.” ISSUES: What is the tariff classification of the “Slammers”? Are the “Slammers” eligible for preferential tariff treatment under the USMCA? LAW AND ANALYSIS: Tariff Classification Classification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification 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 GRI may then be applied. The 2020 HTSUS provisions under consideration are as follows: 2008: 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: 2104: Soups and broths and preparations therefor; homogenized composite food preparations: * * * * * Note 3 to Chapter 21, HTSUS, provides as follows: For the purposes of heading 2104, the expression “homogenized composite food preparations” means preparations consisting of a finely homogenized mixture of two or more basic ingredients such as meat, fish, vegetables, fruit or nuts, put up for retail sale as food suitable for infants or young children or for dietetic purposes, in containers of a net weight content not exceeding 250 g. For the application of this definition, no account is to be taken of small quantities of any ingredients which may be added to the mixture for seasoning, preservation or other purposes. Such preparations may contain a small quantity of visible pieces of ingredients. * * * * * In understanding the language of the HTSUS, the Explanatory Notes (“EN”) of the Harmonized Commodity Description and Coding System may be utilized. The EN, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The General EN to Chapter 20, provides, in pertinent part, as follows: This Chapter includes: [. . .] (4) Homogenised prepared or preserved vegetables and fruit. EN 20.08 provides, in pertinent part, as follows: This heading covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter. [. . .] The products of this heading may be sweetened with synthetic sweetening agents (e.g., sorbitol) instead of sugar. Other substances (e.g., starch) may be added to the products of this heading, provided that they do not alter the essential character of fruit, nuts or other edible parts of plants. The products of this heading are generally put up in cans, jars or airtight containers, or in casks, barrels or similar containers. EN 21.04 provides, in pertinent part, as follows: (B) HOMOGENISED COMPOSITE FOOD PREPARATIONS In accordance with Note 3 to this Chapter, the homogenised composite food preparations of this

Tariff ClassificationClassification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification 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 GRI may then be applied. The 2020 HTSUS provisions under consideration are as follows:2008: 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: 2104: Soups and broths and preparations therefor; homogenized composite food preparations: * * * * * Note 3 to Chapter 21, HTSUS, provides as follows:For the purposes of heading 2104, the expression “homogenized composite food preparations” means preparations consisting of a finely homogenized mixture of two or more basic ingredients such as meat, fish, vegetables, fruit or nuts, put up for retail sale as food suitable for infants or young children or for dietetic purposes, in containers of a net weight content not exceeding250 g. For the application of this definition, no account is to be taken of small quantities of any ingredients which may be added to the mixture for seasoning, preservation or other purposes. Such preparations may contain a small quantity of visible pieces of ingredients.* * * * * In understanding the language of the HTSUS, the Explanatory Notes (“EN”) of the Harmonized Commodity Description and Coding System may be utilized. The EN, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989).    The General EN to Chapter 20, pro