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N013684
January 23, 2008
CLA-2-84:OT:RR:NC:1:102
CATEGORY: Classification
TARIFF NO.: 8414.59.6090
Mr. James L. Sawyer Drinker Biddle Gardner Carton 191 North Wacker Drive Suite 3700 Chicago, IL 60606-1698
RE:     The tariff classification of Triaminic Flowing Vapors kit and Flowing Vapors Refill Pads from China
Dear Mr. Sawyer:

     In your letter dated June 28, 2007 you requested a tariff classification ruling on behalf of your client, Novartis Consumer Health, Inc. A sample was submitted.

     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.      
     In your request you suggest classification in subheading 3004.90.9190, Harmonized Tariff Schedule of the United States (HTSUS), which provides for "Medicaments … 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: Other: Other: Other: Other." We disagree. Triaminic Flowing Vapors is not a product administered for medicinal reasons. There are no dosage instructions and no indications as to what condition(s) may be treated. Customs has consistently precluded such products from classification in heading 3004.
     Although the diffuser and vapor pads work in conjunction with each other, we find that it is the fan which provides the essential character of the item in question, as the vapor cannot permeate throughout a room without the action of the fan.      
     The applicable subheading for the Triaminic Flowing Vapors and Flowing Vapors Refill Pads imported together will be 8414.59.6090, HTSUS, which provides for other axial fans. The rate of duty will be 2.3 percent ad valorem.

     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 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 Kenneth T. Brock at 646-733-3009.

                              Sincerely,
                              Robert B. Swierupski                               Director,                               National Commodity                               Specialist Division