August 28, 2008 CBP Bulletin Notice on Classification of Marbits
In the August 28, 2008 issue of the U.S. Customs and Border Protection Bulletin (CBP Bulletin) (Vol. 42, No. 36), CBP published a notice revoking three classification rulings and a treatment as follows:
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Revocation of rulings, revocation of treatment.CBP is revoking three rulings on the classification of "marbits" mini marshmallows; in addition, this notice covers any rulings on this merchandise that may exist but have not been specifically identified. CBP is also revoking any treatment it has previously accorded to substantially identical transactions.
According to CBP, these actions are effective for merchandise entered or withdrawn from warehouse for consumption on or after October 27, 2008.
The merchandise is described as "dried marshmallow confections" used as ingredients in retail-packed cereal products. They are imported into the U.S. in bulk. They are in the form of dry, brittle, multi-colored pieces in a variety of small shapes, and consist of sugar, corn syrup, cornstarch, dextrose, gelatin, flavor, and sodium hexamet.
CBP is issuing HQ H01478, HQ H027857, and HQ H027858 in order to revoke NY N009017, NY H86740 and NY J80284 and reclassify the "marbits" under HTS 1704.90.3590, as "sugar confectionery (including white chocolate), not containing cocoa: other: confections or sweetmeats ready for consumption" rather than under HTS 2106.90.9400, as "food preparations not elsewhere specified or included."
CBP makes this change as a correction based on legal precedents including the definition of "confectionery" as established by the Court of International Trade (CIT) in Leaf Brands, Inc. v. U.S., (1973), and several prior rulings on marshmallows (see bulletin for details). CBP determines that the merchandise does not meet the terms of heading 2106 because it is "elsewhere specified or included" as sugar confectionery of heading 1704. CBP previously established that marshmallows meet the definition of confectionery because they are eaten for their sweet taste without further preparation and are usually sold at confectionery outlets.
In this instance, it is undisputed that "marbits" are small marshmallows (they are composed of the standard ingredients of marshmallows, specifically, sugar, water, corn syrup, dextrose, corn starch, gelatin, artificial flavoring, and sodium hexamet, and have a similar consistency). Because "marbits" are marshmallows, CBP states that they belong to the same class or kind as the goods classified as confectioneries.
CBP now determines that by application of GRI 1, "marbits" should be classified under HTS 1704.90.3590, as: "Sugar confectionery (including white chocolate), not containing cocoa: Other: Confections or sweetmeats ready for consumption: Other: Other: Other."
New: 1704.90.3590, 5.6%; Previous: 2106.90.9400, 28.8 cents/kilo 8.5%
(See ITT's Online Archives or 07/01/08 news, 08070150, for BP summary of proposed HQ H01478, HQ H027857, and HQ H027858.)
August 28, 2008 CBP Bulletin (Vol. 42, No. 36) available at http://www.cbp.gov/xp/cgov/trade/legal/bulletins_decisions/bulletins_2008/