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HQ 965022
March 8, 2002
CLA-2 RR:CR:GC 965022 AM
CATEGORY:     Classification
TARIFF NO.: 2932.29.50
Port Director U.S. Customs Service Bldg. #77 Jamaica, NY 11430 Re:     Protests 1001-01-101588 and 1001-01-102161; Magnesium Ascorbyl Phosphate, Ascorbyl Tetraisopalmitate, and Ascorbyl Dipalmitate
Dear Port Director:

This is our decision on Protest 1001-01-101588, filed by counsel on behalf of Barnet Products, Corp., and on Protest 1001-01-102161, filed by the importer, against your decision in the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of three vitamin C derivatives. In preparing this ruling, consideration was given to a submissions filed by counsel dated November 10, 2000, June 29, and November 21, 2001, and arguments presented by teleconference on February 6, 2002. We have also reconsidered New York Ruling (NY) F88750, dated September 22, 2000, and find the HTSUS classification proscribed for the subject merchandise therein to be correct.
FACTS:

The three substances involved are : Nikkol VC-PMG (Magnesium Ascorbyl Phosphate, hereinafter "MAP"), Nikkol BV-OSC (Ascorbyl Tetraisopalmitate), and Nikkol CP (Ascorbyl Dipalmitate) [hereinafter "the merchandise"].
All three substances are pure, unmixed chemical compound vitamin C derivatives. MAP is assigned the chemical name Magnesium L-Ascorbyl-2-Phosphate. Its CAS registry number is 113170-55-1. Its molecular formula is expressed as C6H6O9P(3/2Mg. Ascorbyl Tetraisopalmitate is assigned the chemical name Tetrakis (2-Hexyldecanoate)-L-Ascorbic Acid. Its CAS registry number is 183476-82-6. Ascorbyl Dipalmitate is assigned the chemical name Dihexyldecanoate-L-Ascorbic Acid. Its CAS registry number is 28474-90-0.

Customs laboratory report 2-1999-21778, dated August 31, 1999, analyzing a sample of MAP submitted by another importer, states, in pertinent part, the following:

The sample, a white powder, is magnesium ascorbyl phosphate, a non-aromatic heterocyclic compound with oxygen hetero-atom(s) only (lactone).

The technical literature indicates that the product is a heat stabilizer/antioxidant to extend the shelf-life of red blood cells, as an anitoxidant (sic) in pharmaceutical, cosmetic and food preparations.

Vitamin C (ascorbic acid) plays primary roles in the synthesis of collagen and carnitine, is required for the conversion of folic acid to folinic acid and promotes the intestinal absorption of iron. Its primary therapeutic use is in the treatment of scurvy. See Goodman & Gilman's The Pharmacological Basis of Therapeutics, Ninth Ed., p. 1569.
Counsel submitted numerous attachments to bolster the claim that the merchandise exhibits vitamin activity on the skin to prevent wrinkles. "So although L-ascorbic acid concentrates in the interior of the cell, it cannot prevent free-radical damage on the outside of a cell . . .So I began a new search—for a form of vitamin C that could be applied to the skin and would be more effective in preventing free radical change." (Attachement to supplemental submission dated November 21, 2001, The Wrinkle Cure, p. 60-61). The instant merchandise exhibits qualities different from vitamin C that allow it to concentrate on the outside of the cell making it ideal for use in topical applications. The instant merchandise is not approved by the Food and Drug Administration for use in oral administration in humans to perform the vital nutritional function vitamin C performs.

     The five entries pertaining to Protest 1001-01-101588 were liquidated between January 19, 2001 and March 16, 2001. The protest was timely filed on April 19, 2001. The two entries pertaining to Protest 1001-01-102161 were liquidated on May 4 and May 25, 2001. The Protest was timely filed on June 1, 2001.
ISSUE:

           What is the classification of MAP, Ascorbyl Tetraisopalmitate and Ascorbyl Dipalmitate, vitamin C derivatives used in topical applications to prevent wrinkles, under the HTSUS? LAW AND ANALYSIS:

Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context, which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to the GRIs.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

Additional U.S. Rule of Interpretation 1(a), HTSUS, requires that "a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use".

The HTSUS provisions under consideration are the following:

2932     Heterocyclic compounds with oxygen hetero-atom(s) only: Compounds containing an unfused furan ring (whether or not hydrogenated) in the structure:

*     *     *     *     *
2936      Provitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or not in any solvent:

     Chapter Note 3 to chapter 29, HTSUS, states that "Goods which could be included in two or more of the headings of this chapter are to be classified in that one of those headings which occurs last in numerical order."
     The EN to chapter 29, Sub-chapter XI, General note states, in pertinent part, the following: "[T]his sub-Chapter covers active substances which constitute a group of compounds of fairly complex chemical composition, essential for the proper functioning and harmonious development of the animal and vegetable organism. They have mainly a physiological action and are used in medicine or industry because of their individual characteristics."            EN 29.36 states, in pertinent part, the following: "[V]itamins are active agents, usually of complex chemical composition, which are obtained from outside sources and are essential for the proper functioning of human or other animal organisms. They cannot be synthesized by the human body and must therefore be obtained in final or nearly final form (provitamins) from outside sources. They are effective in relatively minute amounts and may be regarded as exogenous biocatalysts, their absence or deficiency giving rise to metabolic disturbances or ‘deficiency diseases’."
This heading includes:

Provitamins and vitamins, whether natural or reproduced by synthesis, and derivatives thereof used primarily as vitamins.

*     *     *     *     *     *     *     *     *     *
(IJ)VITAMIN C AND DERIVATIVES THEREOF USED PRIMARILY AS VITAMINS
Vitamin C is the anti-scorbutic vitamin, and increases resistance to infections. It is soluble in water.

     (1)     Vitamin C (L- or DL-ascorbic acid (INN)). Ascorbic acid is contained in many foodstuffs of vegetable (fruit and green vegetables, potatoes, etc.) or animal (liver, spleen, adrenal glands, brains, milk, etc.) origin; it can be extracted from lemon juice, green and red peppers, green aniseed leaves, and from residual liquors from the treatment of agave fibres. Nowadays, it is obtained almost exclusively by synthesis. It is a white crystalline powder, fairly stable in dry air, and acts as a strong reducing agent.

     (2)     Sodium ascorbate.

     (3)     Calcium ascorbate and magnesium ascorbate.

     (4)     Strontium (L) ascorbocinchoninate (strontium (L) ascorbo-2-phenylquinoline-4-carboxylate).

     (5)     Sarcosine ascorbate.

     (6)     L-Arginine ascorbate.

     (7)     Ascorbyl palmitate. This liposoluble form of vitamin C is also used as an emulsifier and anti-oxidant for fats and oils.

     (8)     Calcium hypophosphitoascorbate.

     (9)     Sodium ascorboglutamate.

Calcium ascorboglutamate.

          In accordance with the chapter note quoted above, protestant argues that the imported merchandise is indeed described by both headings and should therefore be classified in heading 2936, the later occurring heading.

We agree that if the merchandise can be classified in heading 2936, HTSUS, it must be so classified, even though the merchandise is also classifiable in heading 2932, HTSUS. However, the merchandise is not described by the terms of heading 2936, HTSUS. By its terms, "…derivatives . . . used primarily as vitamins," heading 2936, HTSUS, is a principal use provision. The use of the imported product in the U.S., according to protestant, is as a "Vitamin C substitute ingredient in cosmetics for skin treatment and skin whitening . . . ." These facts are relevant to the determination of whether or not the terms of heading 2936, a principal use provision, describes the merchandise. See Additional U.S. Rule of Interpretation 1(a).

The court in E.M. Chemicals v. United States, 20 C.I.T. 382, 923 F. Supp. 202 (1996) explained the application of principal use provisions thus:

When applying a "principal use" provision, the Court must ascertain the class or kind of goods which are involved and decide whether the subject merchandise is a member of that class. See, supra, Additional US Rule of Interpretation 1 to the HTSUS. In determining the class or kind of goods, the Court examines factors which may include: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels of trade in which the merchandise moves; (4) the environment of the sale (e.g., the manner in which the merchandise is advertised and displayed); (5) the usage of the merchandise; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377, cert. denied, 429 U.S. 979, 50 L. Ed. 2d 587, 97 S. Ct. 490 (1976); see also Lenox Coll., 20 C.I.T., Slip Op. 96-30, at page 5.
     The ENs provide substantive guidance as to the scope of the heading. Using the items listed in the ENs as a guide to the class or kind of goods to which the imported merchandise must belong to be classified in the heading, we apply the Carborundum factors above, as follows:

The listed compounds are physically derivatives of Vitamin C. The imported merchandise is also a derivative of Vitamin C. We note that EN 2932 (B)(r) lists isoascorbic acid as included in heading 2932, HTSUS.

The ultimate purchaser expects that the listed compounds will perform as does Vitamin C, a nutritional supplement required for the conversion of folic acid to folinic acid, promoting the intestinal absorption of iron and synthesis of adrenal steroids. The instant merchandise are primarily ingredients in cosmetics where it is expected to prevent wrinkles, lighten skin and preserve the other ingredients in the cosmetic formulation.

The listed compounds move through channels of trade which lead to production as a dietary supplement or food additive for human consumption. The instant merchandise is typically added to cosmetic preparations or used as a heat stabalizer/antioxidant to extend the life of red blood cells. A smaller portion of MAP is used in fish feed. The instant merchandise is not approved for use in human or other animal food in the U.S.

The environment of sale of the listed compounds is as a dietary supplement, advertised for their nutritional qualities. The instant merchandise is advertised as the active ingredient in cosmetic applications with claims that it prevents wrinkles and lightens skin.

The listed compounds are used as dietary supplements or food additives for human consumption. They maintain their vitamin activity. Five of the substances in the EN are listed in the International Cosmetic Ingredient Dictionary and Handbook as antioxidants useable in cosmetics. The instant merchandise also maintains physiological action in its derivative form. However, the general sub-Chapter XI EN does not state that physiological action is dispositive on the classification issue. In fact, the note states that the substances in the sub-Chapter must be "essential for the proper functioning and harmonious development of the animal and vegetable organism." Here, the merchandise is principally used in cosmetic ingredients with no proof that it performs its physiological action on the body "for the proper functioning and harmonious development of the animal and vegetable organism."
The imported merchandise has no economic practicality as a food additive for human consumption or dietary supplement as it is not approved for such use by the Food and Drug Administration (FDA). Although another agency's regulations are not controlling in Customs classification decisions, where Customs must apply a "use" provision to merchandise, the controlling regulatory scheme is indeed relevant.

The trade recognizes the nutritional uses of the listed items. The instant merchandise is not so recognized. Customs must look at "the principal or predominant use, or the usual and common use. Neither the fugitive use of an article, nor the mere susceptibility or capability of use, is a determinative factor" (HQ 963032, dated July 24, 2000). Although MAP is used for nutritional purposes in fish food, counsel has submitted no evidence that its use for nutritional purposes in fish food is not far outweighed by its use in the United States as a cosmetic anti-wrinkle, skin whitening and preservative ingredient. Such use is certainly not "essential for the proper functioning of human or other animal organisms." EN 29.36.

     In sum, while the instant merchandise applied to the skin has been shown to build collagen in the skin, thereby preventing wrinkles, application on the skin has not been shown to build collagen in the bones, thereby preventing scurvy. In fact, application of the instant merchandise on the skin has not been shown to perform any of the metabolic functions that vitamin C performs in the body, such as converting folic acid to folinic acid and promoting the intestinal absorption of iron. Hence, analysis of the Carborundum factors reveals that the instant merchandise does not belong to the class or kind of goods that are "principally used" as vitamins, essential for the proper functioning of human or other animal organisms, even though it is undisputedly a derivative of Vitamin C.

Lastly, protestant submitted, for our consideration, a determination made by another country classifying the substance in subheading 2936.27, under the Harmonized Tariff System. However, such determinations are merely instructive of how others may classify like goods. Customs is not bound to abide by another country's determination, especially, as is the case here, where no rationale is provided for the finding. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

HOLDING:

MAP, Ascorbyl Tetraisopalmitate and Ascorbyl Dipalmitate are classified in subheading 2932.29.50, HTSUS, the provision for "[H]eterocyclic compounds with oxygen hetero-atom(s) only: [L]actones: [O]ther lactones: [O]ther." The protests are DENIED.          
In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely, John A. Durant, Director Commercial Rulings Division


 
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