The tariff classification of Ace® Brand Instant Cold Compress from Canada

NY L81028 December 22, 2004 CLA-2-31: RR: NC: SP: 236 L81028 CATEGORY: Classification TARIFF NO.: 3102.30.0000 Ms. Eleanore Kelly-Kobayashi Rode & Qualey 55 West 39th Street New York, NY 10018 RE: The tariff classification of Ace® Brand Instant Cold Compress from Canada Dear Ms. Kelly-Kobayashi: In your letter dated November 22, 2004, on behalf of your client, Becton Dickinson and Company, you requested a tariff classification ruling. The sample submitted, Ace® Brand Instant Cold Compress is a plastic bag containing ammonium nitrate and water. To use the product, the pack must be squeezed to break the inner liquid bubbles in order to activate the solution. The solution makes the compress instantly cold and it can then be applied to the area requiring treatment. This product is used to help stop pain and swelling. The applicable subheading for the Ace® Brand Instant Cold Compress will be 3102.30.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for Mineral or chemical fertilizers, nitrogenous: Ammonium nitrate, whether or not in aqueous solution. The rate of duty will be Free. You assert that the subject product is classifiable in subheading 3005.90.5090, HTS, which provides for “Wadding, gauze, bandages and similar articles (for example, dressings, adhesive plasters, poultices), impregnated or coated with pharmaceutical substances or put up in forms or packings for retail sale: Other: Other: Other.” We disagree. Our Headquarters office (“Headquarters”), in HQ 961089, dated April 13, 1999, stated that “[U]nder the rule of ejusdem generis, the phrase ‘similar articles’ is limited to goods which ‘possess the essential characteristics or purposes that unite the articles eo nominee.’ ” As a consequence of the previous statement, Headquarters determined that “[T]he characteristic which unites the exemplars of this heading (i.e., 3005, HTS) is their direct application to an open wound or to irritated skin.” Id. Therefore, since the package insert indicates that subject product is intended to “help(s) stop pain and swelling fast,” rather than for direct application to an open wound or to irritated skin, it is our determination that it is precluded from classification in heading 3005, HTS. This product may be subject to the requirements of the Food, Drug and Cosmetic Act, which are administered by the U.S. Food and Drug Administration. Questions regarding FDA requirements may be addressed to the U.S. Food and Drug Administration, Office of Cosmetics and Colors, 5100 Paint Branch Parkway, College Park, MD 20740-3835, telephone number (202) 418-3412 This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Debra Wholey at 646-733-3034. Sincerely, Robert B. Swierupski Director, National Commodity Specialist Division