# HQ 963684

November 21, 2000

CLA-2 RR:CR:GC 963684ptl

CATEGORY: Classification

TARIFF NO.: 0404.90.70

Mr. Christian Emmanuel, President

Cemma International Inc. and

Mr. Dimitri Fraeys de Veubeke

Advisor-Regulatory Affairs

Groupe Lactel

4829 avenue Rosedale

Montreal (Quebec)

Canada HAV 2H3

RE: Whole Bovine Colostrum

Dear Messrs. Emmaunuel and Fraeys de Yeubeke:

Your letters of September 28 and November 9, 1999, on behalf of Le
Groupe Lactel, Boucherville, Quebec, requesting a classification ruling
for product \# 100243, whole bovine colostrum, under the Harmonized
Tariff Schedule of the United States (HTSUS), were referred by the
Director, Customs National Commodity Specialist Division, N.Y, to
Customs Headquarters for a direct response. You suggest that the product
is classified as extracts of glands or other organs or their secretions,
for organotherapeutic uses, in subheading 3001.20.00, HTSUS.

**FACTS**:

The merchandise, #100234, is described as whole bovine colostrum from
first and second milking, in the form of spray dried powder, for human
consumption. It will be imported into the United States from Canada
and/or the European Union, and it will be sold to health food
manufacturers as a

natural, dietary supplement in 20‑25 kilogram bags. The product will be
used as an active ingredient in the manufacture of tablets and/or
capsules of bovine colostrum. The whole bovine colostrum from first and
second milking contains 19% fat, and it is rich in immunoglobulin G
(IgG). It contains by weight 61.5% nitrogenous matter, 22% IgG, 19% fat,
10% lactose, 5% moisture, and 4.5% ash. First milking colostrum
contains, on a dry basis, 44% soluble protein (of which 26% isglobulin),
21% casein, 20% fat, 10% lactose, and 5% ash; it contains, on an \"as
is\" basis, 42% soluble protein (of which 25& is globulin), 20% casein,
19% fat, 10% lactose, and 5% ash.

**ISSUE:**

Whether the product as described is a dairy product consisting of
natural milk constituents classified as other dairy products not
elsewhere specified or included, in subheading 0404.90.70, HTSUS.

**LAW AND ANALYSIS**:

The classification of imported merchandise under the HTSUS is governed
by the principles set forth in the General Rules of Interpretation
(GRI). GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff schedule and any relative
section and chapter notes and, unless otherwise required, according to
the remaining GRI's, taken in their appropriate order. Accordingly, we
first have to determine whether the articles are classified under GRI 1.
We are satisfied that based on the following that the product is
classified under GRI 1.

Subheading 3001.20.00, HTSUS, provides for extracts of glands or other
organs or their secretions, for organotherapeutic uses. This is a "use"
provision. Additional U.S. Rules of Interpretation 1. (a), HTSUS,
defines a "use" provision as "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". In Headquarters
Ruling Decision 957738, dated July 19, 1996, Customs noted that
Webster\'s [Third New International Dictionary]{.underline}, unabridged
(1968) defines the term \"organotherapeutic\" as \"of, relating to, or
used in organotherapy\". The term \"organotherapy\" is defined as \"a
treatment of disease by the administration of animal organs or of their
extracts\". Other dictionaries contain similar definitions. You indicate
that the subject colostrum will be used as a natural food supplement
with general beneficial properties. There is no indication that the
product will be used for treatment of a specific disease. Accordingly,
the product is precluded from classification in subheading 3001.20.00,
HTSUS.

Heading 0402, HTSUS, provides for milk and cream, concentrated or
containing added sugar or other sweetening matter. We note that
colostrum is different from the product that is commercially marketed as
milk. For example, Lincoln M. Lampert, [Modern Dairy
Products]{.underline} (New York; Chemical publishing company, 1975, at
page 14) defines colostrum thus: \"Colostrum is the secretion of the
mammary glands during the first few days of lactation after giving
birth. It differs from normal milk in composition,

flavor, and odor. The odor is strong and the flavor bitter\....Normal
composition of the milk occurs about five days after parturition
\...Colostrum is very rich in globulins which serve as the carrier of
antibodies which protect the suckling animal against disease‑producing
organisms.\"

J.M. Frandsen, [Dairy Handbook]{.underline} and [Dictionary]{.underline}
(Pennsylvania: Nittany Printing and Publishing Company, 1958), at page
457 reiterates Lampert\'s statement that colostrum differs from milk in
composition, flavor, and odor thus: \"Colostrum is thick and yellow, has
a strong odor, a bitter taste, and contains a very high percentage of
globulin.... In two to ten days colostrum milk usually changes to normal
milk. Colostrum is believed to be especially rich in antibodies which
protect the calf from diseases to which it would otherwise offer little
or not resistance.\" The U.S. Food and Drug Administration, in its
standards of identity for milk, articulates the definition of milk thus:
\"Milk is the lacteal secretion, practically free from colostrum,
obtained by the complete milking of one or more healthy cows\" (21 CFR
131.110(a)).

We conclude that colostrum is not the product that is commonly known and
commercially sold as \"milk\" and therefore is precluded form
classification in Heading 0402, HTSUS, which provides for milk and
cream, concentrated or containing added sugar or other sweetening
matter.

Heading 0404, HTSUS provides for whey, whether or not concentrated or
containing added sugar or other sweetening matter; products consisting
of natural milk constituents, whether or not containing added sugar or
other sweetening matter, not elsewhere specified or included. In our
opinion, colostrum is not milk that is commercially sold as milk. It is
composed entirely of natural milk constituents and it is not elsewhere
specified or included in the tariff. Therefore, it is classified under
GRI 1 in subheading 0404.90.70, as other, other natural milk
constituents, whether or not containing added sugar or other sweetening
matter, not elsewhere specified or included. See HQ 964528 of this date
concerning similar products.

**HOLDING:**

The merchandise, \# 100234, described above as whole bovine colostrum
from first and second milking, in the form of spray dried powder, for
human consumption, is classified by virtue of GRI 1 in subheading
0404.90.70, HTSUS, as other, other natural milk constituents, whether or
not containing added sugar or other sweetening matter, not elsewhere
specified or included.

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