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HQ H026664
July 11, 2011
CLA-2 OT:RR:CTF:TCM H026664 ARM
CATEGORY: Classification
TARIFF NO.: 8414.59; 3824.90
James L. Sawyer, Esq.

Drinker Biddle & Reath, LLP 191 North Wacker Drive, Suite 3700 Chicago, IL 60606-1698
RE:      Request for Reconsideration of New York Ruling Letter N013684;      Classification of Triaminic Flowing Vapors Kit
Dear Mr. Sawyer:

This letter is in response to your request of April 22, 2008, for reconsideration of New York Ruling Letter (NY) N013684, dated January 23, 2008, issued by U.S. Customs and Border Protection (CBP). In N013684, CBP determined that the subject “Flowing Vapors Kit” was classified under subheading 8414.59.60, of the Harmonized Tariff Schedule of the United States (HTSUS) as an axial fan. In reaching our decision, we have taken into consideration information obtained during a teleconference held between your office and CBP on February 25, 2010. We have reviewed NY N013684 and found it to be correct for the reasons set forth below.
FACTS:

     In NY N013684, we described the merchandise as follows:

The products you plan to import are described as the Triaminic Flowing Vapors kit and Flowing Vapors Refill Pads. This kit consists of a portable vapor diffuser/fan, three refill pads and two AAA batteries. The Flowing Vapors kit as well as the vapor refill pads will be imported packaged for retail sale. The product’s intended purpose is to provide non-medicated soothing comfort for a child throughout the night.
The diffuser/fan is of axial design and made of plastic. This fan measures approximately 4 inches in height and 3 inches in width and is configured to operate with the Triaminic Flowing Vapors pads. It features a cartridge designed specifically to hold the vapor pads and activate the fan when inserted into the fan unit. The separately packaged vapor refill pads consist of a plastic refill cartridge and five vapor fan refill pads. They are packaged in a sealed foil pouch and are available in two scents: menthol eucalyptus and menthol cherry.
     According to CBP Laboratory Report NY20071173, the subject vapor pads contain menthol, 10% and camphor, 5%. The Flowing Vapors Kit is packaged for retail sale without additional processing after importation. The package contains, in pertinent part, the following print:

     8 HOURS of Continuous Vapor Release      Non-Medicated Soothing Comfort for your Child            Mentholated Cherry Aroma
Contains: portable fan, 3 refill pads & batteries.

IMPORTANT Do not block airflow of vapor fan unit Do not immerse unit in water      Use only w/AAA batteries.

           Releases Vapors All Night Long      Gently Dispenses Vapor Throughout the Room      Flows for 1 hour on then Rests 5 Minutes Off
ISSUES:

Whether the Flowing Vapor Kit is classifiable under heading 3004, HTSUS, as a medicament or under heading 8414, HTSUS, as an axial fan.
Whether the Flowing Vapors refill pads are classified under heading 3004, HTSUS, as a medicament, or under heading 3824, HTSUS, as a chemical preparation.

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.
When goods are, prima facie, classifiable in two or more headings, they must be classified in accordance with GRI 3, which provides, in relevant part, as follows:
(a)     The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in
a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b)      Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.       The HTSUS provisions under consideration are as follows:

3004     Medicaments (excluding goods of heading 3002, 3005 or 3006) consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses (including those in the form of transdermal administration systems) or in forms or packings for retail sale:
3004.90          Other:

3004.90.91               Other:

*     *     * 3824:     Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included:

Other:

Other:

Other:

Other:

3824.90.91                              Other. *     *     *     *      8414     Air or vacuum pumps, air or other gas compressors and fans; ventilating or recycling hoods incorporating a fan, whether or not fitted with filters; parts thereof:                Fans:

8414.59               Other:

                         Other:

8414.59.60                         Other.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not 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).

The relevant ENs to heading 3004, HTSUS, provide, in pertinent part, that:

This heading covers medicaments consisting of mixed or unmixed products, provided they are:

(a) Put up in measured doses or in forms such as tablets, ampoules (for example, re-distilled water, in ampoules of 1.25 to 10 cm3, for use either for the direct treatment of certain diseases, e.g., alcoholism, diabetic coma or as a solvent for the preparation of injectible medicinal solutions), capsules, cachets, drops or pastilles, medicaments in the form of transdermal administration systems, or small quantities of powder, ready for taking as single doses for therapeutic or prophylactic use.

*     *     *   (b) In packings for retail sale for therapeutic or prophylactic use. This refers to products (for example, sodium bicarbonate and tamarind powder) which, because of their packing and, in particular, the presence of appropriate indications (statement of disease or condition for which they are to be used, method of use or application, statement of dose, etc.) are clearly intended for sale directly to users (private persons, hospitals, etc.) without repacking, for the above purposes.

  These indications (in any language) may be given by label, literature or otherwise. However, the mere indication of pharmaceutical or other degree of purity is not alone sufficient to justify classification in this heading.

EN 38.24 states, in pertinent part, the following: This heading covers:      *     *     *     *     *      (B) CHEMICAL PRODUCTS AND CHEMICAL OR OTHER PREPARATIONS …. The chemical products classified here are therefore products whose composition is not chemically defined, whether they are obtained as by-products of the manufacture of other substances (this applies, for example, to naphthenic acids) or prepared directly…. The preparations classified here may be either wholly or partly of chemical products (this is generally the case) or wholly of natural constituents (see, for example, paragraph (23) below).       The EN to heading 8414 states, in pertinent part, the following:

These machines, …, are designed … for creating a movement of the surrounding air. *** The second type are of more simple construction, and consist merely of a driven fan rotating in free air.



EN VIII to GRI 3(b) provides:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. *     *     * With regard to the classification of the vapor pads, heading 3004, HTSUS, is a principal use provision. (See, HQ 964673, dated February 4, 2002 and HQ 966527 dated October 21, 2003). Additional U.S. Rule of Interpretation 1(a) 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 principal use of the class or kind of goods to which an import belongs is controlling, not the principal use of the specific import. (citations omitted). “Principal use" is defined as the use "which exceeds any other single use." (citations omitted). As a result, "the fact that the merchandise may have numerous significant uses does not prevent the Court from classifying the merchandise according to the principal use of the class or kind to which the merchandise belongs. (citations omitted). E.M. Chems. v. United States, 20 C.I.T. 382, 387-388 (Ct. Int'l Trade 1996).

As stated in United States v. The Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2nd 373 (1976), certain factors must be looked at to determine whether imported merchandise is of a certain "class or kind" as that expression is used in Additional U.S. Rule of Interpretation 1(a). These factors include: (1) the physical characteristics of the merchandise, (2) the expectation of the ultimate purchases, (3) the channels of trade of the merchandise, (4) the environment of the sale (accompanying accessories, manner of advertisement and display) (5) use in the same manner as merchandise which defines the class, (6) the economic practicality of so using the import, and (7) recognition in the trade of this use.

Before applying these factors, we note that in Warner-Lambert Company v. United States, 28 Ct. Intl. Trade 939; 341 F. Supp. 2d 1272; (Ct. Intl. Trade, June 21, 2004), the court examined the nature of medicaments of heading 3004, HTSUS, by examining the connection between a dose and therapeutic or prophylactic properties. The court stated “A measured dose is not merely a certain amount; it should contemplate an effect there from. Hence, the dose must be viewed as a way to link the properties of a substance with that effect.” Id. at 949, 1280. Based on this reasoning, the court found that the mere fact of a lozenge containing a certain amount of vitamin C did not make the lozenge a medicament of heading 3004, HTSUS.
We apply the Carborundum factors to the instant vapor pads as follows:

The general physical characteristics of the merchandise: The vapor pads contain menthol, 10%, camphor, 5%, and eucalyptus. CBP has classified products containing menthol, camphor and eucalyptus in heading 3004, HTSUS, as a medicament intended for therapeutic use. See, HQ 960697, dated March 4, 1998, NY R01783, dated April 15, 2005, NY 811343, dated June 29, 1995, and NY N046377, dated December 16, 2008.
However, all of these products were in the form of rubs or inhalers. The physical characteristics regarding the method of delivery of the substance is quite different and is not a form mentioned in EN 30.04(a). The instant merchandise is not a rub, and though the aromatic air circulating around the room is inhaled, there is no inhalation device for delivery of the intended substance. For instance, in HQ 960697, we classified a mentholated herbal substance contained in a classic nasal inhaler container, shaped for use inside the nostril, in heading 3004, while a canister of similar ingredients were classified elsewhere. We stated the following:
The "Herbal Inhaler" is specifically designed so that the herbal ingredients will either come into direct contact with the user, or will be inhaled deeply through the product's traditional inhaler end. This use, combined with the traditionally recognized therapeutic properties of the ingredients, makes it difficult to distinguish these inhaler containers from other similarly shaped articles which contain similar ingredients. We believe that the combination of factors exhibited by the "Herbal Inhaler" require that we consider it to be imported and offered for sale and use as a medicament within the scope of heading 3004, HTSUS.

When we turn to the canister you call an "Aroma Fragrance Inhaler", we encounter different circumstances and factors. The canister shaped device is designed so that the user will, at most, hold the article under the nose while sniffing the aroma. This positioning and use of the article can be considered consistent with perfuming or deodorizing products. This does not suggest a direct application of the product on or into the user's person. Rather, it is designed to release the aroma into the air surrounding the user.

The instant merchandise, though containing substances associated with medicaments is not designed with the physical characteristics of a medicament’s delivery system. Like for the “Aroma Fragrance Inhaler” the evidence pertaining to this factor mediates against classification in heading 3004, HTSUS.
(2) The expectation of the ultimate purchasers: The product is used to disperse a mentholated aroma in a child’s bedroom. Neither the packaging of the refill vapor pads or the combination fan and vapor pads identifies a particular ailment or disease which it is intended to treat, prevent or alleviate. Instead, the labeling indicates that the instant product provides “non-medicated soothing comfort” and provides or diffuses “mentholated cherry aroma.” By contrast, other Triaminic products specifically indicate that the aliment or disease the product is designed to treat or prevent. For example, the Triaminic® Day Time Cold & Cough product specifically indicates that the intended purpose is to treat colds and coughs. Likewise, the labeling information on the Infant Triaminic® Thin Strips state the product’s purpose is for Decongestant Plus Cough. The Triaminic® Night Time Cold & Cough states that the active ingredients in each strip include diphemhydramine HCI 12.5 mg (purpose: cough suppressant); Pheylephrine HCI 5 mg (purpose: Nasal decongestant. See Children’s Cold, Cough, Flu and Allergy Medicine: Why Trust Triaminic, at www.triaminic.com.
Furthermore, there is no dosage instruction. A “dose” is defined as “the measured quantity of a therapeutic agent to be taken at one time.” Merriam-Webster’s Collegiate Dictionary, ...[more information - please download the word document to see the complete ruling]

 
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