August 15, 2007 CBP Bulletin Notice on Tzatziki Garlic Dip
In the August 15, 2007 issue of the U.S. Customs and Border Protection Bulletin (CBP Bulletin) (Vol. 41, No. 34), CBP published a notice revoking a classification ruling and a treatment as follows:
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Revocation of ruling; revocation of treatment.CBP is revoking one ruling on the classification of tzatziki garlic dip. CBP is also revoking any treatment it has previously accorded to substantially identical transactions.
According to CBP, the revocations are effective for merchandise entered or withdrawn from warehouse for consumption on or after October 14, 2007.
Tzatziki garlic dip. The merchandise is described as a thick, creamy product, white in color, composed of 85% cream, 10% cucumber, 4% vegetable oil, and less than 1% each of salt, bacterial culture, and fresh garlic. Laboratory analysis determined the overall fat content to be 12.1%. 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 issuing HQ W968353 in order to revoke NY 812305 and reclassify the subject merchandise in HTS 2103.90.9091 as ''Sauces and preparations Other," rather than under HTS 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 HTS 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 HTS 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 HTS 2103 because it meets the parameters for classification as a sauce. Nestle Refrigerated Food Co v. U.S., 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 HTS 1901, as it is elsewhere specified or included. By application of GRI 1, the subject tzatziki garlic dip is classified under HTS 2103, as a sauce. It is specifically provided for under HTS 2103.90.9091.
New: 2103.90.9091, 6.4%; previous: 1901.90.4200, 16%, or 1901.90.4300, $1.035/kg 13.6%
(See ITT's Online Archives or 03/29/07 news, 07032925, for BP summary of proposed HQ W968353.)
August 15, 2007, CBP Bulletin (Vol. 41, No. 34) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2007/