H316413

HQ H316413 April 20, 2021 OT:RR:CTF:FTM H316413 TSM CATEGORY: Classification TARIFF NO.: 2106.90.9897 Mr. George C. Lovequist Access Business Group International LLC 7575 Fulton Street East Ada, MI 49355 Re: Revocation of NY N314621; Tariff classification of dietary supplements from Colombia Dear Mr. Lovequist: This is in reference to New York Ruling Letter (“NY”) N314621, issued to Access Business Group International LLC, on October 1, 2020. In that ruling, U.S. Customs and Border Protection (“CBP”) classified products described as “Amway Immunity Gummies” and “Amway Sleep Gummies” under subheading 2106.90.9500, Harmonized Tariff Schedule of the United States (Annotated) (“HTSUSA”), which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions.” We have reviewed NY N314621 and found it to be incorrect. For the reasons set forth below, we are revoking NY N314621. 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 was published in the Customs Bulletin, Volume 55, No. 10, on March 17, 2021, proposing to revoke NY N314621, and revoke any treatment accorded to substantially identical transactions. No comments were received in response to the notice. FACTS: In NY N314621, the products at issue were described as follows: The first product, “Amway Immunity Gummies”, is said to contain organic sugar, organic tapioca syrup, water, vitamin C, glycerin, elderberry extract, agar, flavors consisting of elderberry, lemon and masking flavors, zinc, lactic acid and citric acid. The second product, “Amway Sleep Gummies”, is said to contain organic sugar, organic tapioca syrup, water, magnesium, glycerin, agar, lactic acid, citric acid, blueberry and lavender flavors, magenta color, melatonin, and passion flower extract. Ingredients breakdowns, a manufacturing flowchart and photocopies of the packaging were provided to CBP for consideration. ISSUE: What is the tariff classification of the dietary supplement products at issue? LAW AND ANALYSIS: Classification under the HTSUS is determined 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 2021 HTSUSA provisions under consideration are as follows: 2106 Food preparations not elsewhere specified or included: 2106.90 Other: Other: Other: Other: Other: Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: 2106.90.9500 Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions * * * 2106.90.98 Other: * * * Other: * * * Other: * * * Other: 2106.90.9897 Containing sugar derived from sugar cane and/or sugar beets * * * Additional U.S. Note 3 to Chapter 17, HTSUS, reads the following: For the purposes of this schedule, the term “articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17” means articles containing over 10 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, except (a) articles not principally of crystalline structure or not in dry amorphous form, the foregoing that are prepared for marketing to the ultimate consumer in the identical form and package in which imported; (b) blended syrups containing sugars derived from sugar cane or sugar beets, capable of being further processed or mixed with similar or other ingredients, and not prepared for marketing to the ultimate consumer in the identical form and package in which imported; (c) articles containing over 65 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, capable of being further processed or mixed with similar or other ingredients, and not prepared for marketing to the ultimate consumer in the identical form and package in which imported; or (d) cake decorations and similar products to be used in the same condition as imported without any further processing other than the direct application to individual pastries or confections, finely ground or masticated coconut meat or juice thereof mixed with those sugars, and sauces and preparations therefor. * * * Additional U.S. Note 8 to Chapter 17, HTSUS, reads the following: The aggregate quantity of articles containing over 10 percent by dry weight of sugars described in additional U.S. note 3 to chapter 17, entered under subheadings 1701.91.54, 1704.90.74, 1806.20.75, 1806.20.95, 1806.90.55, 1901.90.56, 2101.12.54, 2101.20.54, 2106.90.78 and 2106.90.95 during the 12-month period from October 1 in any year to the following September 30, inclusive, shall not exceed 64,709 metric tons (articles the product of Mexico shall not be permitted or included under this quantitative limitation and no such articles shall be classifiable therein). * * * In understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although neither dispositive nor 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 (August 23, 1989). The EN to heading 2106, HTSUS, states, in pertinent part, the following: Provided that they are not covered by any other heading of the Nomenclature, this heading covers: Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption. Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.) (see the General Explanatory Note to Chapter 38). * * * The heading includes, inter alia: * * * (16) Preparations, often referred to as food supplements or dietary supplements, consisting of, or based on, one or more vitamins, minerals, amino acids, concentrates, extracts, isolates or the like of substances found within foods, or synthetic versions of such substances, put up as a supplement to the normal diet. It includes such products whether or not also containing sweeteners, colours, flavours, odoriferous substances, carriers, fillers, stabilisers or other technical aids. Such products are often put up in packaging with indications that they maintain general health or well-being, improve athletic performance, prevent possible nutritional deficiencies or correct sub-optimal levels of nutrients. * * * In NY N314621, CBP classified the “Amway Immunity Gummies” and “Amway Sleep Gummies” under subheading 2106.90.9500, HTSUSA, which provides for “Food preparations not elsewhere specified or included: Other: Other: Other: Other: Other: Articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17: Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions.” Heading 2106, HTSUS

Classification under the HTSUS is determined 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 2021 HTSUSA provisions under consideration are as follows:2106 Food preparations not elsewhere specified or included: 2106.90 Other: Other: Other: Other: Other:Articles containing over 10 percent by dryweight of sugar described in additional U.S.note 3 to chapter 17:2106.90.9500 Described in additional U.S. note 8 to chapter 17 and entered pursuant to its provisions* * *2106.90.98 Other:* * * Other:* * * Other:* * * Other:2106.90.9897 Containingsugar derived from sugar cane and/or sugar beets * * *Additional U.S. Note 3 to Chapter 17, HTSUS, reads the following: For the purposes of this schedule, the term “articles containing over 10 percent by dry weight of sugar described in additional U.S. note 3 to chapter 17” means articles containing over 10 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, except (a) articles not principally of crystalline structure or not in dry amorphous form, the foregoing that are prepared for marketing to the ultimate consumer in the identical form and package in which imported; (b) blended syrups containing sugars derived from sugar cane or sugar beets, capable of being further processed or mixed with similar or other ingredients, and not prepared for marketing to the ultimate consumer in the identical form and package in which imported; (c) articles containing over 65 percent by dry weight of sugars derived from sugar cane or sugar beets, whether or not mixed with other ingredients, capa