H332382

HQ H332382 September 1, 2023 OT:RR:CTF:FTM H332382 KRM CATEGORY: Classification TARIFF NO.: 2106.90.99 Ms. Michelle Li Thompson Hine, LLP 1919 M Street NW, Suite 700 Washington, D.C. 20036 RE: Tariff Classification of Caffeine Pouches Dear Ms. Li, This is in response to your request, dated March 1, 2023, requesting a binding ruling on behalf of your client, E-Alternative Solutions, LLC (“E-Alternative Solutions”), regarding the tariff classification of caffeine pouches under the Harmonized Tariff Schedule of the United States (“HTSUS”). Your client initially requested a binding tariff classification ruling from the National Commodity Specialist Division (“NCSD”). Additional information was requested, and the request was resubmitted in your letter dated May 4, 2023. Your request was forwarded to this office by the NCSD for a response. Within your request for a binding ruling, you asked that the percentages of ingredients by weight and cost 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), your request for confidentiality is approved. The items specified by you will not be released to the public and will be withheld from the published version of this decision. FACTS: The merchandise under consideration is described as MOJO caffeine pouches. The products are a white powdery mixture in a small white rectangular pouch containing coffee-derived caffeine, microcrystalline cellulose, natural flavoring, sucralose, water, L-theanine, N-acetyl-L-tyrosine, sodium citrate, ginseng root extract, propylene glycol, niacin, elethero extract, rhodiola extract, yerba maté extract, pyridoxine HCl, and cyanocobalamin. Each pouch measures approximately 12 mm in length and 5 mm in width. The pouches contain 50 mg of caffeine that is water-extracted from coffee. The caffeine does not retain any of the flavor or color of coffee. The caffeine pouches are packaged in cylindrical cans that are 2.75 inches in diameter and 0.9375 inches in height. Each can contains 15 identical pouches. The directions instruct the user to place the pouch between their gum and upper lip for approximately one hour. The ingredients are absorbed into the body via the oral mucosa (tissue in the cheek and gum), thereby entering the bloodstream without requiring the caffeine to be digested. The ingredients are not intended to be swallowed. The user is directed to dispose of the used pouch after a single use. The pouches are not meant to be swallowed, as they may pose a choking hazard. The product is described as “balanced energy pouches” that are tobacco and nicotine free. The pouches are not marketed as a dietary supplement or food supplement. Rather, according to the requestor, the caffeine pouches are marketed as an energy product. Specifically, the product is offered as an alternative to caffeinated energy drinks and specialty coffee. Additionally, E-Alternative Solutions notes that convenience store chains and retailers will sell the pouches as energy products, and unlike tobacco products, there is no age or restricted access requirement. In the ruling request, E-Alternative Solutions claims that the pouches are classified under subheading 2106.90.99, HTSUS, as food preparations not elsewhere specified or included. ISSUE: What is the tariff classification of the caffeine pouches at issue? LAW AND ANALYSIS: Classification under the HTSUS is 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 2023 HTSUS provisions under consideration are as follows: 2101: Extracts, essences and concentrates, of coffee, tea or maté, and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof: * * * * * 2106: Food preparations not elsewhere specified or included: * * * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System 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 (Aug. 23, 1989). EN 21.01 provides, in relevant part, that: This heading covers: Coffee extracts, essences and concentrates. These may be made from real coffee (whether or not caffeine has been removed) or from a mixture of real coffee and coffee substitutes in any proportion. They may be in liquid or powder form, usually highly concentrated. This group includes products known as instant coffee… … Preparations with a basis of the coffee, tea or maté extracts, essences or concentrates of paragraphs (1) and (2) above. These are preparations based on extracts, essences or concentrates of coffee, tea or maté (and not on coffee, tea or maté themselves), and include extracts with added starches or other carbohydrates. Preparations with a basis of coffee, tea or maté. These preparations include, inter alia : (a) “coffee pastes” consisting of mixtures of ground, roasted coffee with vegetable fats and sometimes other ingredients, and (b) tea preparations consisting of a mixture of tea, milk powder and sugar. * * * * * EN 21.06 provides, in relevant part, that: 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. … 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. These preparations do not contain a sufficient quantity of active ingredients to provide therapeutic or prophylactic effect against diseases or ailments other than the relevant nutritional deficiencies. Other preparations with a sufficient quantity of active ingredient to provide a therapeutic or prophylactic effect against a specific disease or ailment are excluded (heading 30.03 or 30.04). * * * * * Heading 2106 covers food preparations that are not elsewhere specified or included in the HTSUS. Therefore, before classifying the products in heading 2106, we must first determine whether they can be classified in any other heading. Heading 2101 covers preparations with a basis of the coffee extracts, essences, or concentrates. In the requestor’s submission, E-Alternative Solutions claims that the subject pouches are not classified in heading 2101 because they do not contain any coffee, although the caffeine in the pouches is derived from coffee. The requestor suggests that the pouches should be classified under subheading 2106.90.99, as a food preparation. The requestor also notes that the pouches are for recreational use and intended to increase energy. The ENs to heading 2101 provide for preparations based

Classification under the HTSUS is 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 2023 HTSUS provisions under consideration are as follows:2101: Extracts, essences and concentrates, of coffee, tea or maté, and preparations with a basis of these products or with a basis of coffee, tea or maté; roasted chicory and other roasted coffee substitutes, and extracts, essences and concentrates thereof:* * * * *2106: Food preparations not elsewhere specified or included:* * * * *The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System 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 (Aug. 23, 1989). EN 21.01 provides, in relevant part, that:This heading covers:Coffee extracts, essences and concentrates. These may be made from real coffee (whether or not caffeine has been removed) or from a mixture of real coffee and coffee substitutes in any proportion. They may be in liquid or powder form, usually highly concentrated. This group includes products known as instant coffee……Preparations with a basis of the coffee, tea or maté extracts, essences or concentrates of paragraphs (1) and (2) above. These are preparations based on extracts, essences or concentrates of coffee, tea or maté (and not on coffee, tea or maté themselves), and include extracts with added starches or other carbohydr