H324381

HQ H324381 August 29, 2022 RR:CTF:FTM H324381 TSM CATEGORY: Classification TARIFF NO.: 2106.90.82 Mr. Robert D. Stang Husch Blackwell LLP 750 17th Street NW, Suite 900 Washington, DC 20006 RE: Tariff classification of Valess Nuggets and Valess Schnitzel dairy-based meat substitutes Dear Mr. Stang: This is in response to your request, on behalf of FrieslandCampina Consumer Dairy US Inc. (“FrieslandCampina”), dated August 11, 2021, for a binding ruling regarding the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of dairy-based meat substitutes, marketed under the brand Valess and identified as Valess Nuggets and Valess Schnitzel. Your request was forwarded by the National Commodity Specialist Division to this office for a response. Pursuant to a request from FrieslandCampina, a meeting with members of my staff and counsel for FrieslandCampina was held on June 27, 2022. You have asked that certain information submitted in connection with this request be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. The information contained within brackets in the submissions and exhibits that you forwarded to our office will not be released to the public and will be withheld from published versions of this ruling. FACTS: The products at issue are Valess Nuggets and Valess Schnitzel, described as follows: Valess Nuggets are made from Valess Fibers and other ingredients formed into nugget shapes, which are breaded, lightly salted, and lightly seasoned. The product has a juicy, firm bite with a crunchy crust reminiscent of a chicken nugget when cooked. Valess Nuggets are made from skimmed milk, breadcrumbs (wheat flour, yeast, salt, turmeric, paprika), sunflower oil, textured wheat protein, thickener (seaweed fibers, methyl cellulose), free-range chicken egg protein, oat fiber, wheat flour, food acid (potassium lactate), stabilizer (polyphosphate), modified wheat starch, flavoring, salt, and iron. Valess Schnitzel are made from Valess Fibers and other ingredients in an oval, drop-shape that is breaded, lightly salted, and lightly seasoned. The product has a juicy, firm bite with a crunchy crust reminiscent of a breaded chicken cutlet. Valess Schnitzel are made from skimmed milk, breadcrumbs (wheat flour, yeast, salt, spices), sunflower oil, textured wheat protein, wheat flour, thickener (seaweed fibers, methyl cellulose), free-range chicken egg protein, modified wheat starch, oat fiber, food acid (potassium lactate), stabilizer (potassium lactate), flavoring, salt, and iron. Information regarding the Valess Nuggets and Valess Schnitzel four-step production process was provided. Based on the information provided, the first step consists of a process whereby skimmed milk is inoculated with starter culture and mixed with a mixture of cream, coagulating enzyme (microbial derived rennet) and calcium chloride. This results in the skimmed milk being converted into concentrated milk proteins by changing the microstructure of the skimmed milk. The second step consists of a process whereby the concentrated milk proteins are milled into a uniform size after which a variety of ingredients (water, plant-based fiber, melting salts, defoamer and sodium hydroxide) are added to the mixture by melting and agitation. This process results in the concentrated milk proteins being processed into a process cheese-like product, with a resulting change in microstructure. The third step consists of a process whereby seaweed fibers, water and calcium chloride are added to the process-like cheese product, after which the product is agitated. This results in the production of the novel Valess Fibers. The change from a process like cheese product to the novel Valess Fibers is evidenced through a change in the microstructure of the ingredient before and after processing. Specifically, the addition of the calcium chloride and the seaweed fibers forces a reordering of the casein in the process cheese-like product that creates a novel microstructure, which is much more structured and fibrous than process cheese. After the Valess Fibers are produced, washed, and drained, during the fourth step of the production process additional ingredients (spices, flavors, thickeners, and some water) are added to help the ingredients form a dough that is shaped, breaded, and par-fried. The shaped and par-fried products are the resulting finished products: Valess Nuggets and Valess Schnitzel. The products are approximately 80% milk solids, which are derived from the concentrated milk proteins. The total sugar content of the Valess Nuggets is 0.8 grams on a 100-gram basis (approximately 0.24 grams per nugget). The total sugar content of the Valess Schnitzel is 0.8 grams on a 100-gram basis (approximately 0.72 grams per schnitzel patty nugget). The products are marketed as meat and plant-based substitutes and are intended to be fried and consumed by the purchasers. ISSUE: What is the tariff classification of the Valess Nuggets and Valess Schnitzel dairy-based meat substitutes under the HTSUS? LAW AND ANALYSIS: Classification decisions under the HTSUS are 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 2022 HTSUS provisions under consideration are as follows: 0401 Milk and cream, not concentrated nor containing added sugar or other sweetening matter * * * 1901 Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food preparations of goods of headings 0401 to 0404, not containing cocoa or containing less than 5 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included * * * 2106 Food preparations not elsewhere specified or included * * * Note 1 to Chapter 4 provides: The expression “milk” means full cream milk or partially or completely skimmed milk. * * * In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 1 to Chapter 4 provides: The expression “milk” means full cream milk or partially or completely skimmed milk. * * * General EN to Chapter 4 provides in relevant part: This Chapter covers: (I) Dairy products: Milk, i.e., full cream milk and partially or completely skimmed milk. Cream. Buttermilk, curdled milk and cream, yogurt, kephir and other fermented or acidified milk and cream. Whey. Products consisting of natural milk constituents, not elsewhere specified or included. Butter and other fats and oils derived from milk; dairy spreads. Cheese and curd. The products mentioned at Items (A) to (E) above may contain, in addition to natural milk constituents (e.g., milk enriched in vitamins or mineral salts), small quantities of stabilising agents which serve to maintain the natural consistency of the product during transport in liquid state (disodium phosphate, trisodium citrate and calcium chloride, for instance) as well as very small quantities of antioxidants or of vitamins

Classification decisions under the HTSUS are 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 2022 HTSUS provisions under consideration are as follows:0401 Milk and cream, not concentrated nor containing added sugar or other sweetening matter* * *1901 Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food preparations of goods of headings 0401 to 0404, not containing cocoa or containing less than 5 percent by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included* * *2106 Food preparations not elsewhere specified or included* * * Note 1 to Chapter 4 provides: The expression “milk” means full cream milk or partially or completely skimmed milk.* * * In addition, in interpreting the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 1 to Chapter 4 provides: The expression “milk” means full cream milk or partially or completely skimmed milk.* * * General EN to Chapter 4 provides in relevant part: This C