# HQ 965022

March 8, 2002

# 

# CLA-2 RR:CR:GC 965022 AM

CATEGORY: Classification

TARIFF NO.: 2932.29.50

Port Director

U.S. Customs Service

Bldg. #77\
Jamaica, NY 11430

Re: Protests 1001-01-101588 and 1001-01-102161; Magnesium Ascorbyl
Phosphate, Ascorbyl Tetraisopalmitate, and Ascorbyl Dipalmitate

Dear Port Director:

This is our decision on Protest 1001-01-101588, filed by counsel on
behalf of Barnet Products, Corp., and on Protest 1001-01-102161, filed
by the importer, against your decision in the classification, under the
Harmonized Tariff Schedule of the United States (HTSUS), of three
vitamin C derivatives. In preparing this ruling, consideration was given
to a submissions filed by counsel dated November 10, 2000, June 29, and
November 21, 2001, and arguments presented by teleconference on February
6, 2002. We have also reconsidered New York Ruling (NY) F88750, dated
September 22, 2000, and find the HTSUS classification proscribed for the
subject merchandise therein to be correct.

**FACTS:**

The three substances involved are : Nikkol VC-PMG (Magnesium Ascorbyl
Phosphate, hereinafter "MAP"), Nikkol BV-OSC (Ascorbyl
Tetraisopalmitate), and Nikkol CP (Ascorbyl Dipalmitate) \[hereinafter
"the merchandise"\].

All three substances are pure, unmixed chemical compound vitamin C
derivatives. MAP is assigned the chemical name Magnesium
L-Ascorbyl-2-Phosphate. Its CAS registry number is 113170-55-1. Its
molecular formula is expressed as C~6~H~6~O~9~P3/2Mg. Ascorbyl
Tetraisopalmitate is assigned the chemical name Tetrakis
(2-Hexyldecanoate)-L-Ascorbic Acid. Its CAS registry number is
183476-82-6. Ascorbyl Dipalmitate is assigned the chemical name
Dihexyldecanoate-L-Ascorbic Acid. Its CAS registry number is 28474-90-0.

Customs laboratory report 2-1999-21778, dated August 31, 1999, analyzing
a sample of MAP submitted by another importer, states, in pertinent
part, the following:

> The sample, a white powder, is magnesium ascorbyl phosphate, a
> non-aromatic heterocyclic compound with oxygen hetero-atom(s) only
> (lactone).
>
> The technical literature indicates that the product is a heat
> stabilizer/antioxidant to extend the shelf-life of red blood cells, as
> an anitoxidant (sic) in pharmaceutical, cosmetic and food
> preparations.

Vitamin C (ascorbic acid) plays primary roles in the synthesis of
collagen and carnitine, is required for the conversion of folic acid to
folinic acid and promotes the intestinal absorption of iron. Its primary
therapeutic use is in the treatment of scurvy. *See* [Goodman &
Gilman\'s The Pharmacological Basis of Therapeutics]{.underline}, Ninth
Ed., p. 1569.

Counsel submitted numerous attachments to bolster the claim that the
merchandise exhibits vitamin activity on the skin to prevent wrinkles.
"So although L-ascorbic acid concentrates in the interior of the cell,
it cannot prevent free-radical damage on the outside of a cell . . .So I
began a new search---for a form of vitamin C that could be applied to
the skin and would be more effective in preventing free radical change."
(Attachement to supplemental submission dated November 21, 2001, *The
Wrinkle Cure*, p. 60-61). The instant merchandise exhibits qualities
different from vitamin C that allow it to concentrate on the outside of
the cell making it ideal for use in topical applications. The instant
merchandise is not approved by the Food and Drug Administration for use
in oral administration in humans to perform the vital nutritional
function vitamin C performs.

The five entries pertaining to Protest 1001-01-101588 were liquidated
between January 19, 2001 and March 16, 2001. The protest was timely
filed on April 19, 2001. The two entries pertaining to Protest
1001-01-102161 were liquidated on May 4 and May 25, 2001. The Protest
was timely filed on June 1, 2001.

**ISSUE:**

#  

#  What is the classification of MAP, Ascorbyl Tetraisopalmitate and Ascorbyl Dipalmitate, vitamin C derivatives used in topical applications to prevent wrinkles, under the HTSUS?

**LAW AND ANALYSIS:**

Merchandise imported into the United States is classified under the
HTSUS. Tariff classification is governed by the principles set forth in
the General Rules of Interpretation (GRIs) and, in the absence of
special language or context, which requires otherwise, by the Additional
U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of
Interpretation are part of the HTSUS and are to be considered statutory
provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the
terms of the headings of the tariff schedule and any relative section or
chapter notes and, unless otherwise required, according to the remaining
GRIs taken in their appropriate order. GRI 6 requires that the
classification of goods in the subheadings of headings shall be
determined according to the terms of those subheadings, any related
subheading notes and, *mutatis mutandis*, to the GRIs.

In understanding the language of the HTSUS, the Explanatory Notes (ENs)
of the Harmonized Commodity Description and Coding System may be
utilized. The ENs, although not dispositive or legally binding, provide
a commentary on the scope of each heading, and are generally indicative
of the proper interpretation of the HTSUS. *See* T.D. 89-80, 54 Fed.
Reg. 35127 (August 23, 1989).

Additional U.S. Rule of Interpretation 1(a), HTSUS, 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 HTSUS provisions under consideration are the following:

2932 Heterocyclic compounds with oxygen hetero-atom(s) only: Compounds
containing an unfused furan ring (whether or not hydrogenated) in the
structure:

\* \* \* \* \*

2936 Provitamins and vitamins, natural or reproduced by synthesis
(including natural concentrates), derivatives thereof used primarily as
vitamins, and intermixtures of the foregoing, whether or not in any
solvent:

Chapter Note 3 to chapter 29, HTSUS, states that \"Goods which could be
included in two or more of the headings of this chapter are to be
classified in that one of those headings which occurs last in numerical
order."

The EN to chapter 29, Sub-chapter XI, General note states, in pertinent
part, the following: "\[T\]his sub-Chapter covers active substances
which constitute a group of compounds of fairly complex chemical
composition, essential for the proper functioning and harmonious
development of the animal and vegetable organism. They have mainly a
physiological action and are used in medicine or industry because of
their individual characteristics."

EN 29.36 states, in pertinent part, the following: "\[V\]itamins are
active agents, usually of complex chemical composition, which are
obtained from outside sources and are essential for the proper
functioning of human or other animal organisms. They cannot be
synthesized by the human body and must therefore be obtained in final or
nearly final form (provitamins) from outside sources. They are effective
in relatively minute amounts and may be regarded as exogenous
biocatalysts, their absence or deficiency giving rise to metabolic
disturbances or 'deficiency diseases'."

> This heading includes:

(a) Provitamins and vitamins, whether natural or reproduced by
    synthesis, and derivatives thereof used primarily as vitamins.

\* \* \* \* \* \* \* \* \* \*

## (IJ)VITAMIN C AND DERIVATIVES THEREOF

USED PRIMARILY AS VITAMINS

Vitamin C is the anti-scorbutic vitamin, and increases resistance to
infections. It is soluble in water.

\(1\) Vitamin C (L- or DL-ascorbic acid (INN)). Ascorbic acid is
contained in many foodstuffs of vegetable (fruit and green vegetables,
potatoes, etc.) or animal (liver, spleen, adrenal glands, brains, milk,
etc.) origin; it can be extracted from lemon juice, green and red
peppers, green aniseed leaves, and from residual liquors from the
treatment of agave fibres. Nowadays, it is obtained almost exclusively
by synthesis. It is a white crystalline powder, fairly stable in dry
air, and acts as a strong reducing agent.

\(2\) Sodium ascorbate.

\(3\) Calcium ascorbate and magnesium ascorbate.

\(4\) Strontium (L) ascorbocinchoninate (strontium (L)
ascorbo-2-phenylquinoline-4-carboxylate).

\(5\) Sarcosine ascorbate.

\(6\) L-Arginine ascorbate.

\(7\) Ascorbyl palmitate. This liposoluble form of vitamin C is also
used as an emulsifier and anti-oxidant for fats and oils.

\(8\) Calcium hypophosphitoascorbate.

\(9\) Sodium ascorboglutamate.

(10) Calcium ascorboglutamate.

In accordance with the chapter note quoted above, protestant argues that
the imported merchandise is indeed described by both headings and should
therefore be classified in heading 2936, the later occurring heading.

We agree that if the merchandise can be classified in heading 2936,
HTSUS, it must be so classified, even though the merchandise is also
classifiable in heading 2932, HTSUS. However, the merchandise is not
described by the terms of heading 2936, HTSUS. By its terms,\
\"...derivatives . . . used primarily as vitamins,\" heading 2936,
HTSUS, is a principal use provision. The use of the imported product in
the U.S., according to protestant, is as a "Vitamin C substitute
ingredient in cosmetics for skin treatment and skin whitening . . . ."
These facts are relevant to the determination of whether or not the
terms of heading 2936, a principal use provision, describes the
merchandise. See Additional U.S. Rule of Interpretation 1(a).

The court in *E.M. Chemicals v. United States*, 20 C.I.T. 382, 923 F.
Supp. 202 (1996) explained the application of principal use provisions
thus:

> When applying a \"principal use\" provision, the Court must ascertain
> the class or kind of goods which are involved and decide whether the
> subject merchandise is a member of that class. See, *supra*,
> Additional US Rule of Interpretation 1 to the HTSUS. In determining
> the class or kind of goods, the Court examines factors which may
> include: (1) the general physical characteristics of the merchandise;
> (2) the expectation of the ultimate purchasers; (3) the channels of
> trade in which the merchandise moves; (4) the environment of the sale
> (e.g., the manner in which the merchandise is advertised and
> displayed); (5) the usage of the merchandise; (6) the economic
> practicality of so using the import; and (7) the recognition in the
> trade of this use. *United States v. Carborundum Co*., 63 C.C.P.A. 98,
> 102, 536 F.2d 373, 377, cert. denied, 429 U.S. 979, 50 L. Ed. 2d 587,
> 97 S. Ct. 490 (1976); see also *Lenox Coll.*, 20 C.I.T., Slip Op.
> 96-30, at page 5.

The ENs provide substantive guidance as to the scope of the heading.
Using the items listed in the ENs as a guide to the class or kind of
goods to which the imported merchandise must belong to be classified in
the heading, we apply the *Carborundum* factors above, as follows:

(1) The listed compounds are physically derivatives of Vitamin C. The
    imported merchandise is also a derivative of Vitamin C. We note that
    EN 2932 (B)(r) lists isoascorbic acid as included in heading 2932,
    HTSUS.

(2) The ultimate purchaser expects that the listed compounds will
    perform as does Vitamin C, a nutritional supplement required for the
    conversion of folic acid to folinic acid, promoting the intestinal
    absorption of iron and synthesis of adrenal steroids. The instant
    merchandise are primarily ingredients in cosmetics where it is
    expected to prevent wrinkles, lighten skin and preserve the other
    ingredients in the cosmetic formulation.

(3) The listed compounds move through channels of trade which lead to
    production as a dietary supplement or food additive for human
    consumption. The instant merchandise is typically added to cosmetic
    preparations or used as a heat stabalizer/antioxidant to extend the
    life of red blood cells. A smaller portion of MAP is used in fish
    feed. The instant merchandise is not approved for use in human or
    other animal food in the U.S.

(4) The environment of sale of the listed compounds is as a dietary
    supplement, advertised for their nutritional qualities. The instant
    merchandise is advertised as the active ingredient in cosmetic
    applications with claims that it prevents wrinkles and lightens
    skin.

(5) The listed compounds are used as dietary supplements or food
    additives for human consumption. They maintain their vitamin
    activity. Five of the substances in the EN are listed in the
    International Cosmetic Ingredient Dictionary and Handbook as
    antioxidants useable in cosmetics. The instant merchandise also
    maintains physiological action in its derivative form. However, the
    general sub-Chapter XI EN does not state that physiological action
    is dispositive on the classification issue. In fact, the note states
    that the substances in the sub-Chapter must be "essential for the
    proper functioning and harmonious development of the animal and
    vegetable organism." Here, the merchandise is principally used in
    cosmetic ingredients with no proof that it performs its
    physiological action on the body "for the proper functioning and
    harmonious development of the animal and vegetable organism."

(6) The imported merchandise has no economic practicality as a food
    additive for human consumption or dietary supplement as it is not
    approved for such use by the Food and Drug Administration (FDA).
    Although another agency\'s regulations are not controlling in
    Customs classification decisions, where Customs must apply a \"use\"
    provision to merchandise, the controlling regulatory scheme is
    indeed relevant.

(7) The trade recognizes the nutritional uses of the listed items. The
    instant merchandise is not so recognized. Customs must look at "the
    principal or predominant use, or the usual and common use. Neither
    the fugitive use of an article, nor the mere susceptibility or
    capability of use, is a determinative factor" (HQ 963032, dated July
    24, 2000). Although MAP is used for nutritional purposes in fish
    food, counsel has submitted no evidence that its use for nutritional
    purposes in fish food is not far outweighed by its use in the United
    States as a cosmetic anti-wrinkle, skin whitening and preservative
    ingredient. Such use is certainly not "essential for the proper
    functioning of human or other animal organisms." EN 29.36.

In sum, while the instant merchandise applied to the skin has been shown
to build collagen in the skin, thereby preventing wrinkles, application
on the skin has not been shown to build collagen in the bones, thereby
preventing scurvy. In fact, application of the instant merchandise on
the skin has not been shown to perform any of the metabolic functions
that vitamin C performs in the body, such as converting folic acid to
folinic acid and promoting the intestinal absorption of iron. Hence,
analysis of the *Carborundum* factors reveals that the instant
merchandise does not belong to the class or kind of goods that are
"principally used" as vitamins, essential for the proper functioning of
human or other animal organisms, even though it is undisputedly a
derivative of\
Vitamin C.

Lastly, protestant submitted, for our consideration, a determination
made by another country classifying the substance in subheading 2936.27,
under the Harmonized Tariff System. However, such determinations are
merely instructive of how others may classify like goods. Customs is not
bound to abide by another country\'s determination, especially, as is
the case here, where no rationale is provided for the finding. *See*
T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

**HOLDING:**

MAP, Ascorbyl Tetraisopalmitate and Ascorbyl Dipalmitate are classified
in subheading 2932.29.50, HTSUS, the provision for "\[H\]eterocyclic
compounds with oxygen hetero-atom(s) only: \[L\]actones: \[O\]ther
lactones: \[O\]ther." The protests are [DENIED]{.smallcaps}.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550‑065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with the decision must be
accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
[www.customs.gov](http://www.customs.ustreas.gov/), by means of the
Freedom of Information Act, and other methods of public distribution.

> Sincerely,
>
> John A. Durant, Director
>
> Commercial Rulings Division