H321302

 HQ H321302 November 30, 2021 OT:RR:CTF:FTM H321302 TJS CATEGORY: Classification TARIFF NO.: 2208.90.7500 Ms. Lori D’Ascenzo Enlightened Feelings 24 Carolina Way Port Rowan ON N0E 1M0 Canada RE: Affirmation of HQ H320380; Tariff classification of “Frequencies of Living Flowers” Dear Ms. D’Ascenzo, This is in response to your request for reconsideration, dated October 7, 2021, and your subsequent emails, dated October 12, 2021, October 21, 2021, October 27, 2021, and November 17, 2021, of Headquarters Ruling Letter (“HQ”) H320380, issued to you on October 6, 2021. In HQ H320380, U.S. Customs and Border Protection (“CBP”) classified your product, described as “Frequencies of Living Flowers,” under subheading 2208.90.7500, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages: Other: Other: Spirits: Other.” We affirm HQ H320380 because the products at issue are not perfumes or toilet waters of heading 3303, HTSUS. HQ H320380 described the product at issue as follows: The label for the “Frequencies of Living Flowers” product describes it as frequencies of living flowers captured in spring water, preserved with 5% grain alcohol (ethanol). The product is said to be created by capturing light photons emitted from living flowers in spring water with 5% grain alcohol. The stated purpose of the product is “restoring emotional and soul balance.” To consume the product, the user typically adds 30 drops to a 4 oz. glass of water, and sips the mixture. Other formulations of the product include those designed to be held against the body, sprayed topically or throughout a room, or swilled in the mouth and spit out. In your request for reconsideration, you contend that the “Frequencies of Living Flowers” is not an alcoholic beverage of heading 2208, HTSUS, because the alcohol in the product is used merely as a necessary food-grade preservative/stabilizer to prolong shelf life, not as part of the active ingredient, and that the quantity of alcohol is so small in relation to dosage that when it is added to water (1.5 drops per 4 oz. water), there is no taste or evidence of alcohol. As a general rule, merchandise is classified in its condition as imported. Although the “Frequencies of Living Flowers” is intended to be diluted prior to ingestion, the tangible ingredients of the product in its imported condition are water and 5% grain alcohol. The Harmonized Commodity Description and Coding System Explanatory Note (“EN”) to heading 2208, HTSUS, clearly states that the heading covers undenatured spirits with less than 80% alcoholic strength by volume and which lack secondary constituents that provide a flavor or aroma. We find that the “Frequencies of Living Flowers” product meets this description because it contains 5% grain alcohol and no secondary constituents which give a flavor or aroma. You argue that classification in subheading 2208.90, HTSUS, is misleading because it contains “the highest volumes of alcohol of any other products listed under 2203-2208.” We note that heading 2207 covers products with alcohol content higher than those classified in heading 2208, HTSUS. Heading 2207 provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of 80 percent vol. or higher; ethyl alcohol and other spirits, denatured, of any strength” whereas heading 2208, HTSUS, provides for “Undenatured ethyl alcohol of an alcoholic strength by volume of less than 80 percent vol.; spirits, liqueurs and other spirituous beverages.” Furthermore, Note 3 to Chapter 22, HTSUS, states that “[f]or the purposes of heading 2202 the term “nonalcoholic beverages” means beverages of an alcoholic strength by volume not exceeding 0.5 percent vol. Alcoholic beverages are classified in headings 2203 to 2206 or heading 2208 as appropriate.” Accordingly, heading 2208 covers products that contain an alcoholic strength by volume exceeding 0.5%. Since the products at issue contain 5% grain alcohol, which is more than 0.5% and less than 80%, we find that classification in heading 2208, HTSUS, is not misleading as to the amount of alcohol in the product. Contrary to your claim that heading 2208, HTSUS, classifies the “Frequencies of Living Flowers” as “hazardous” or “intoxicants”, this heading encompasses an assortment of goods including various aqueous solutions of ethanol that are not considered “intoxicants,” which we agree is not your product’s intended use. For example, the product in New York Ruling Letter (“NY”) A88238, dated October 10, 1996, (5% ethyl alcohol, 95% water) and NY A89277, dated November 19, 1996, (0.5 percent ethyl alcohol and 95.5% water) was used to calibrate and test breathalyzers. In NY D87225, dated May 5, 1999, CBP classified homeopathic gem remedies under subheading 2208.90.7500, HTSUSA. The gem remedies, packaged in 1-, 2-, or 3-ounce bottles, were stated to contain distilled water, alcohol, and gem essence. The gem essence was described as the vibratory signature of the gem, but it did not consist of particles. The CBP laboratory determined that the samples contained 85% water and 15% ethanol. Like the homeopathic gem remedies, the “Frequencies of Living Flowers” contain water, alcohol, and a non-physical element, are packaged in small bottles, and are intended for use as an alternative health treatment. You further assert that the Food and Drug Administration (“FDA”), rather than the Alcohol and Tobacco Tax and Trade Bureau (“TTB”), has jurisdiction over your products and that CBP should first identify the regulatory agency for the product as part of our classification analysis. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (“GRIs”) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation (“AUSR”). The GRIs and the AUSR are part of the HTSUS and are considered statutory provisions of law. CBP is not required to consider which regulatory agency has applicable requirements for imported products when determining tariff classification under the HTSUS. Nor can we unilaterally establish a new heading or a subheading in the HTSUS for your product. The act of classifying goods requires an importer to be familiar with the HTSUS (and the instrument upon which it is based, the international Harmonized Commodity Description and Coding System (“Harmonized System”)). The Harmonized System is administrated by the World Customs Organization (“WCO”). It is updated regularly at the international level, typically every five years, and serves as the foundation for the import and export classification systems used in the United States and by many trading partners. The Harmonized System assigns specific 6-digit codes for varying classifications and commodities. Due to the hierarchical structure of the Harmonized System, the merchandise must first be classified in the Harmonized System in the 4-digit heading whose terms most specifically describe the merchandise (unless otherwise required or directed by the GRIs); and second, only 4-digit headings are comparable (no consideration should be given to the terms of any subheading within any 4-digit heading when considering the proper classification of merchandise at the 4-digit heading level). You argue that “Frequencies of Living Flowers” should be classified in either heading 2106, HTSUS, as food supplements, heading 2201, HTSUS, as water, heading 3004, HTSUS, as medicaments, or heading 3303, HTSUS, as flower water. We initially note that the product at issue is not classified in heading 2201 which provides for, “Waters, including natural or artificial mineral waters and aerated waters, not containing added sugar or other sweetening matter nor flavored; ice and snow,