March 21, 2007 CBP Bulletin Notice on Tzatziki Garlic Dip

Proposed revocation of ruling; proposed revocation of treatment. CBP is proposing to revoke a ruling on the classification of Tzatziki Garlic Dip. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.

CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed ruling revocation, or any party involved with a substantially identical transaction, should advise CBP by April 20, 2007, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in this notice.

In addition, CBP states that this notice covers any rulings on the subject merchandise that may exist but have not been specifically identified.

Tzatziki Garlic Dip. The merchandise is described as a thick, creamy product, white in color, composed of 85 percent cream, 10 percent cucumber, 4 percent vegetable oil, and less than one percent each of salt, bacterial culture, and fresh garlic. Laboratory analysis determined the overall fat content to be 12.1 percent. The article is made in Canada, and is packed in 8-ounce plastic cups for retail sale, and in 5-pound plastic pails for food service use.

CBP is proposing to issue HQ W968353 in order to revoke NY 812305 and reclassify the subject merchandise in 2103.90.9091 as ''Sauces and preparations Other'', rather than under 1901.90.42 as "dairy preparations containing over 10 percent by weight of milk solids ... described in Additional U.S. Note 10 to chapter 4 and entered pursuant to its provisions, not elsewhere specified or included" (NESI), or under subheading 1901.90.43 as "dairy preparations containing over 10 percent by weight of milk solidsOther, NESI," depending on whether or not it was imported in quantities that fall within the limits described in Additional U.S. Note 10 to Chapter 4.

CBP has determined that NY 812305 classified the Tzatziki Garlic Dip in 1901.90.42 as a food preparation based on cream. However, that provision only applies if the good is not elsewhere specified or included. It is now CBP's belief that Tzatziki is specifically provided for in heading 2103 because it meets the parameters for classification as a sauce. Nestle Refrigerated Food Co v. United States, 18 C.I.T. 661, 668 (1994), defined sauce as: "a condiment, generally but not always of liquid form, eaten as an addition to and together with a dish of food, to give it flavor and make it more palatable; and is not applied to anything which is eaten, alone or with a bit of bread, either for its own sake only, or to stimulate the appetite for other food to be eaten afterwards."

CBP finds that in its condition as imported, the Tzatziki Garlic Dip is ready for use principally as a spread, similar to mayonnaise or as a dressing or dip, similar to salsa. These uses place it within the class or kind of goods used as a sauce. Because Tzakziki Garlic Dip meets the terms of heading 2103, it cannot be classified under heading 1901, as it is elsewhere specified or included. By application of GRI 1, the subject Tzatziki Garlic Dip is classified under heading 2103, as a sauce. It is specifically provided for under subheading 2103.90.9091.

Proposed: 2103.90.9091, 6.4%; current: 1901.90.4200, 16%, or 1901.90.4300, $1.035/kg 13.6%

March 21, 2007 CBP Bulletin (Vol. 41, No.13) available athttp://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2007/