The tariff classification of a dietary supplement from Denmark

N181040 December 5, 2011 CLA-2-19:OT:RR:NC:2:228 CATEGORY: Classification TARIFF NO.: 1901.90.5600; 1901.90.5800 Mr. Richard Barrette Trade Compliance & Strategy Lead, North America Pfizer, Inc. Eastern Point Road Groton, CT 06340 RE: The tariff classification of a dietary supplement from Denmark Dear Mr. Barrette: In your letters dated June 27, 2011 and August 15, you requested a tariff classification ruling. Product literature accompanied your June letter. An ingredients breakdown and a sample were submitted with your second letter. The sample was forwarded to the U.S. Customs and Border Protection laboratory for analysis. Centrum brand Pro Nutrients™ Probiotic is a light brown powder, composed of skim milk powder, dextrose, inulin, sucrose, probiotic blend (Bifidobacterium animalis subsp. lactis Bb12 and Lactobacillus rhamnosus GG), maltodextrin, silicon dioxide and sodium ascorbate. The product is manufactured by blending the ingredients, centrifugation, freeze drying, and packed for retail sale in a single serving packet containing one gram (0.035 oz), net weight, 14 packets in a box, or imported in bulk and repacked for retail sale without requiring additional processing. The retail package describes the goods as a “dietary supplement” and makes a variety of statements about the product, e.g. “can be taken on its own”, “can be sprinkled into a cool food (like yogurt) or beverage”, supports “immune health” and “helps maintain digestive balance”, etc. The package also gives notice the caution that “these statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease.” Laboratory analysis found the product contains about 32 percent milk solids and 16 percent sugar on a dry weight basis. In your letter, you suggest classification in subheading 3002.90.5150, Harmonized Tariff Schedule of the United States (HTSUS), the provisions for other cultures of micro-organisms and similar products. We do not agree. This subheading covers raw materials for manufactured products. In this case, the imported products are finished products that are marketed and specifically prepared as dietary supplements dedicated for use as a human dietary supplement and will be classified elsewhere. The applicable subheading for the Pro Nutrients™ Probiotic when imported in retail packages or imported in bulk and intended for repackaging in the U.S. into retail containers for use by the ultimate consumer (rather than food producers, restaurants, etc.), if imported in quantities that fall within the limits described in additional U.S. note 8 to chapter 17, will be 1901.90.5600, HTSUS, which provides for food preparations of goods of headings 0401 to 0404, not containing cocoa…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. The rate of duty will be 10 percent ad valorem. If the quantitative limits of additional U.S. note 8 to chapter 17 have been reached, the product will be classified in subheading 1901.90.5800, HTSUS, and dutiable at the rate of 23.7 cents per kilogram plus 8.5 percent ad valorem. In addition, products classified in subheading 1901.90.5800, HTSUS, will be subject to additional duties based on their value, as described in subheadings 9904.17.49 to 9904.17.56, HTSUS. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html. 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 Bruce N. Hadley, Jr. at (646) 733-3029. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division