H322781

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H322781 August 5, 2022 OT:RR:CTF:FTM H322781 MD CATEGORY: Classification TARIFF NO.: 2008.97.1040; 2008.97.9094 Mr. H. Michael Leightman Ernst & Young, LLP 5 Houston Center, Suite 1200 Houston, Texas 77010 RE: Affirmation of HQ H314968; Tariff Classification and USMCA Eligibility of Snack Foods Dear Mr. Leightman: This is in response to your request, dated January 10, 2022, on behalf of your client, Baby Gourmet Foods Inc. (“Baby Gourmet”), for reconsideration of Headquarters Ruling Letter (“HQ”) H314968, issued on March 15, 2021. In that ruling, U.S. Customs and Border Protection (“CBP”) classified various “Slammers” snack foods under the Harmonized Tariff Schedule of the United States (“HTSUS”) and determined its eligibility for preferential tariff treatment under the United States-Mexico-Canada Agreement (“USMCA”). Specifically, CBP classified the various “Slammers” snack foods under either subheading 2008.97.1040, HTSUS Annotated (“HTSUSA”), which provides for “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: Other, including mixtures other than those of subheading 2008.19: Mixtures: In airtight containers and not containing apricots, citrus fruits, peaches or pears: Other,” or subheading 2008.97.9094, HTSUSA, which provides for “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: Other, including mixtures other than those of subheading 2008.19: Mixtures: Other: Other: Other.” Based on the information provided, CBP determined that the “Slammers” were not eligible for preferential tariff treatment under the USMCA. We have reviewed HQ H314968, determined that it is correct, and for the reasons set for below, are affirming that ruling. HQ H314968 described the subject merchandise as follows: 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.” In your request for reconsideration, you contend that the “Slammers” should be classified under either subheading 2104.20.1000, HTSUSA, which provides for “Soups and broths and preparations therefor; homogenized composite food preparations: Homogenized composite food preparations: Put up for retail sale as food suitable for infants or for dietetic purposes[,]” or subheading 2104.20.5000, HTSUSA, which provides for “Soups and broths and preparations therefor; homogenized composite food preparations: Homogenized composite food preparations: Put up for retail sale as food suitable for young children.” Specifically, you assert that the “Slammers” are (1) “put up for retail sale […] for dietetic purposes” and (2) “homogenized composite food preparations put up for sale for young children.” In support of both claims, you cite to several CBP rulings. Lastly, on the basis that both of the above claims are correct, you state that the “Slammers” are eligible for preferential tariff treatment under the USMCA. On April 27, 2022, CBP hosted a videoconference with your office and your client to discuss the subject merchandise. During this conference, CBP requested supplemental information pertaining to the subject merchandise’s contented dietetic purpose – specifically, pertaining to the addition of whey protein isolate and yeast beta glucan. On May 9, 2022, you furnished this requested information to CBP in the form of an exhibit workbook containing prior CBP rulings, various proprietary studies pertaining to the yeast beta glucan, a letter from your client’s dietician, and information from the Food and Drug Administration (“FDA”) pertaining to their delineation of age groups from birth to age sixteen. When determining the classification of goods within heading 2104, HTSUS, specifically, subheadings 2104.20.1000, HTSUSA, and 2104.20.5000, HTSUSA, CBP considers the language of Note 3 to Chapter 21 (“Note 3”) which states, in pertinent part: 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. In this regard, in order for a product to be classified within heading 2104 as a “homogenized composite food preparation,” it must meet three criteria. First, the preparation must be a “finely homogeniz

“Slammers” products, with various marketing testimonials with such details as “everyone in our family loves [“Slammers”], from the adults way down to the youngest child.” One such testimonial rhetorically asks; “[t]hink fruit pouches are just for kids? Think again!” In contrast, the “Slammers” website does not possess any marketing images or testimonials to suggest that the product is marketed as food suitable for children under the age of two years old. Rather, the “Slammers” website demonstrates that “Slammers” are suitable, and marketed, for consumption by individuals of all ages. As such, we find that the “Slammers” are not classified within heading 2104, HTSUS, as “homogenized composite food preparations” because they are not “put up for retail sale as food suitable for infants or young children.” Ultimately, we agree with the classification set forth in HQ H314968, in that the “Slammers” are properly classified within heading 2008, HTSUS, which provides for “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.” The EN to 20.08 specifically 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.” As discussed, the “Slammers” overwhelmingly consist of various fruit purees. Therefore, we find that the “Slammers” are appropriately classified within heading 2008, HTSUS, as fruit preparations. The ENs to 20.08 allow for “[o]ther substances” to be added to products of heading 2008, HTSUS, “provided they do not alter the essential character of [the] fruit, nuts, or other edible parts of plants.” The other ingredients of each of the “Slammers” – amaranth flour, vegetable puree, vegetable concentrate, Wellmune beta glucan, whey protein,