HQ 950917

May 11, 1992

CLA-2 CO:R:C:F 950917 JGH

CATEGORY: Classification

TARIFF NO.: 2106.90.60

Roger L. Hiatt, Esq.

Miller & Steuart

2320 Commerce Tower

911 Main Street

Kansas City, Missouri 64105

RE: Classification of Alactamil, infant formula

Dear Mr. Hiatt:

Your inquiry of December 9, 1991, concerns the tariff

classification, under the Harmonized Tariff Schedule of the

United States (HTSUS), of Alactamil, a product of Canada,

imported by Bristol-Myers Squibb.

FACTS:

Alactamil is said to be designed for infants who exhibit a

lactose intolerance, and is intended as a complete nutritional

source, or as a breast milk supplement, from birth to age one.

It is described as a blend, by weight, of 54% corn syrup solids,

12.71%- milk proteins, 15.50%- coconut oil, 12.70%- soy oil,

2.50%- vitamins, minerals and emulsifiers, 1.06%- potassium

citrate and 1.44%- calcium phosphate. The milk protein is said

to be obtained from a casein product. It is to be packaged in

14- and 16-ounce cans of powder, 13-ounce cans of concentrated

liquid, 8-and 32-ounce cans of ready-to-use liquids, and 4-ounce

ready-to-use nursettes for hospital use.

ISSUE:

Whether Alactamil is classifiable in the provision for

preparations for infant use, put up for retail sale, in

subheading 1901.10.00, HTSUS; other nonalcoholic beverages, in

subheading 2202.90.9090,HTSUS; or other food preparations no

elsewhere specified or included, in subheading 2106.90.6099,

HTSUS.

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LAW AND ANALYSIS:

It is your position that Alactamil is not classifiable in

heading 1901, since it is not an article of milk. It is

contended that as the product contains vegetable oil in place of

milk fat, corn syrup solids in place of lactose, and less than

half the amount of milk protein as cow\'s milk, it can not be

considered a preparation based on milk. It is stated that the

product is designed for the infant who is lactose intolerant;

intended as a complete nutritional supplement, supplying the

infant\'s protein, carbohydrate, vitamin and mineral

requirements.

The Explanatory Notes to heading 1901, HTSUS, point out

that food preparations based on headings 0401 to 0404, used as

infant food, would be included in subheading 1901.10.00, HTSUS.

Alactamil is a milk substitute product which contains a milk

derivative. However, the milk protein is not derived from whole

milk but created from something further down the line: A casein

product. Therefore, since the protein is not obtained directly

from whole milk, Alactamil is not considered a product based on

goods of headings 0401 to 0404, HTSUS.

Furthermore, since Alactamil is intended as a food product,

one to be used to supplement or supplant an infant\'s normal diet,

it is something more than a beverage. It is a food. Therefore,

heading 2202, HTSUS, would not apply.

The Explanatory Notes to Chapter 30, HTSUS, which concerns

the classification of pharmaceuticals and medicaments, state that

the chapter does not cover foodstuffs which are considered

dietetic, diabetic or fortified foods; those preparations which

contain only nutritional substances. The Notes go on to state

that the major nutritional substances in food are proteins,

carbohydrates and fats. It is indicated that these products

would be classifiable as food preparations.

HOLDING:

Alactamil is classifiable under the provision for other food

prepartions not elswhere specified or included, in subheading

2106.90.60, HTSUS. If product qualifies as a Canadian product,

under the appropriate regulations, the rate of duty is 6 percent

ad valorem.

Sincerely,

John Durant, Director

Commercial Rulings Division