HQ 959099

May 1, 1998

CLA-2 RR:CR:GC 959099 ptl

CATEGORY: Classification

TARIFF NO.: 3823.90.50/3823.90.27

Area Director of Customs

New York - JFK Area

Bldg #77

Jamaica, NY 11430

Re: IA 60/95; Ginkgo Biloba (Dimeric) Biflavonoid PHYTOSOME ,

Ginkgo Biloba PHYTOSOME , and Escin/ -sitosterol PHYTOSOME .

Dear Area Director:

This is in response to your memorandum of November 14, 1995

(CLA-2-K:TC:A2 KC), forwarding a request for Internal Advice (IA

60/95) submitted by counsel for Lipo Chemicals, Inc., concerning

the classification of the above products under the Harmonized

Tariff Schedule of the United States (HTSUS). Because all

entries which are the subject of this Internal Advice were made

in 1994, references in this decision will be to the 1994 HTSUS.

FACTS:

Ginkgo Biloba Dimeric Biflavonoid PHYTOSOME , Ginkgo Biloba

PHYTOSOME , and Escin/ -sitosterol PHYTOSOME are all

preparations imported to be used in cosmetics. The merchandise

was invoiced as botanical extracts and entered in subheading

1211.90.8090, HTSUS, as other plants or parts of plants of a kind

used primarily in perfumery, fresh or dried, whether or not cut,

crushed or powdered: other: other: other. Customs classified the

Ginkgo products under the provision for other chemical products

and preparations of the chemical or allied industries, not

elsewhere specified or included; other mixtures containing 5

percent or more by weight of aromatic or modified aromatic

substances: other, in subheading 3823.90.2700, HTSUS. The

Escin/ -sitosterol PHYTOSOME was classified under the provision

for other chemical products and preparations of the chemical or

allied industries, not elsewhere specified or included; other:

other: other, in subheading 3823.90.5050, HTSUS.

In addition to arguing in support of the invoiced

classification offered by the importer, counsel for the importer

is proposing three additional, alternative classifications for

the merchandise.

If Customs does not agree that the articles should be

classified in heading 1302, HTSUS, as vegetable saps and

extracts, counsel\'s next alternative classification is in heading

3003, HTSUS, as a medicament. Should that heading be improper,

counsel suggests that the articles be classified in heading 2938,

HTSUS, which provides for \"Glycosides, natural or reproduced by

synthesis, and their salts, ethers, esters and other

derivatives:\"

ISSUE:

Whether the merchandise is classifiable under the provision

for other plants or parts of plants of a kind used primarily in

perfumery, fresh or dried, whether or not cut, crushed or

powdered, other in subheading 1211.90.8090, HTSUS, or as other

vegetable saps and extracts; pectin substances, pectinates and

pectates; agar-agar and other mucilages and thickeners, whether

or not modified, derived from vegetable products; other vegetable

saps and extracts, in subheading 1302.19.9040, HTSUS, or

alternatively in heading 3003 or 3004, HTSUS, as medicaments or

products having therapeutic or prophylactic uses; or heading

2938, HTSUS, for glycosides; or as chemical products and chemical

or other preparations in heading 3823, HTSUS?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff

Schedule of the United States (HTSUS) in accordance with the

General Rules of Interpretation (GRIs). The systematic detail of

the HTSUS is such that virtually all goods are classified by

application of GRI 1, that is, according to the terms of the

headings of the tariff schedule and any relative Section or

Chapter Notes. In the event that the goods cannot be classified

solely on the basis of GRI 1, and if the headings and legal notes

do not otherwise require, the remaining GRIs may then be applied

in order.

In understanding the language of the HTSUS, the Harmonized

Commodity Description and Coding System Explanatory Notes may be

utilized. The Explanatory Notes (ENs), although not dispositive

or legally binding, provide a commentary on the scope of each

heading of the HTSUS, and are generally indicative of the proper

interpretation of these headings. See T.D. 89-80, 54 Fed. Reg.

35127, 35128 (August 23, 1989).

The following headings are under consideration:

1211 Plants and parts of plants (including seeds and

fruits), of a kind used primarily in perfumery, in

pharmacy or for insecticidal, fungicidal or similar

purposes, fresh or dried, whether or not cut, crushed

or powdered:

\* \* \*

1211.90 Other:

\* \* \*

1211.90.80 Other

\* \* \*

1211.90.8090 Other.

\* \* \* \* \*

1302 Vegetable saps and extracts; pectic substances,

pectinates and pectates; agar-agar and other mucilages

and thickeners, whether or not modified, derived from

vegetable products:

Vegetable saps and extracts:

\* \* \*

1302.19 Other:

Ginseng; substances having anesthetic,

prophylactic or therapeutic properties:

\* \* \*

1302.19.40 Other.

\* \* \* \* \*

2938 Glycosides, natural or reproduced by synthesis, and

their salts, ethers, esters and other derivatives.

\* \* \*

2938.90.00 Other.

\* \* \* \* \*

3003 Medicaments (excluding goods of heading 3002, 3005 or

3006\) consisting of two or more constituents which have

been mixed together for therapeutic or prophylactic

uses, not put up in measured doses or in forms or

packages for retail sale:

\* \* \*

3003.90.00 Other.

\* \* \* \* \*

3823 Prepared binders for foundry molds or cores; chemical

products and preparations of the chemical and allied

industries (including those consisting of mixtures of

natural products), not elsewhere specified or included;

residual products of the chemical or allied industries,

not elsewhere specified or included:

\* \* \*

3823.90 Other.

Other.

Mixtures containing 5 percent or more by

weight of one or more aromatic or

modified aromatic substances:

\* \* \*

3823.90.2700 Other.

\* \* \*

3823.90.5000 Other.

\* \* \*

3823.90.5050 Other.

At the time of importation, the importer claimed the

products were classified in heading 1211, HTSUS, other plants or

parts of plants of a kind used in perfumery, in pharmacy or

similar purposes. Because EN 12.11 states that \"\... the heading

excludes such products consisting of plants or parts of plants

\... of different species \... or consisting of plants or parts of

plants of a single or different species mixed with other

substances, such as one or more plant extracts\...\" this

classification was rejected.

The first alternative offered by counsel is in heading 1302,

HTSUS, as vegetable extracts. Counsel asserts that the ENs to

heading 1302 allow for extracts of this type to be classifiable

under this heading, even if they are combined with inert

substances. Counsel also contends that the fact that the

extraction process results in a high level of purity does not

remove it from this classification. It is further argued that

GRI 2(b), allows for mixtures of this type to be classifiable in

heading 1302, HTSUS, because, it is claimed, that one of the

components of the Phytosome (the extract) is referred to in the

heading of chapter 13.

The manufacturer\'s materials provided by counsel claim that

the leaves of the Gingko biloba L. contain a complex mixture of

flavonoids and terpenes which are primarily responsible for its

pharmacological activity. In the PHYTOSOME form, they are

described as an original complex between the purified flavonoids

extracted from the gingko leaves and soybean phospholipids. The

Gingko Biloba PHYTOSOME is used in cosmetic gels and emulsions.

The extract is also said to be sold in tablet or solution form,

as the flavonoids are claimed to be used in the treatment of

vascular disease, and are said to possess vasokinetic/vasomotor

properties. A production flowchart for the Gingko Biloba

products shows that the Gingko Biloba leaves are ground, then go

through an acetone-water extraction and several concentration,

filtration, and dilution processes before being dried, milled,

mixed and sieved.

The manufacturer\'s materials in regard to Escin/ -sitosterol

PHYTOSOME , describe it as a ternary complex among Escin/ -sitosterol
and soybean phospholipids. The Phytosome molecule is

said to be a chemical which enhances the effectiveness of Escin

on the skin. It is said to be normally used in gels and

emulsions. A production flowchart shows that Escin is dissolved

in ethyl acetate containing soybean phospholipids plus -sitosterol. The
mixture is then heated, with the concentration

yielding a soft extract, which is then dried, milled, mixed and

sieved to arrive at the final product.

The Gingko Biloba PHYTOSOME molecule is a chemical complex

of the gingko flavonoids and the phospholipids. This complex is

claimed to enhance the functionality of the flavonoids, which are

aromatics, resulting in a product which is longer lasting, thus

increasing its effectiveness on the skin.

The ENs to heading 1302 state that the heading covers saps

and extracts (vegetable products usually obtained by natural

exudation or by incision, or extracted by solvents), provided

that they are not specified or included in more specific

headings. The ENs go on to state that extracts may be simple or

compound. Simple extracts are obtained by the treatment of only

one variety of plant. The vegetable extracts of this heading are

generally raw materials for various manufactured products. It is

pointed out that the extracts are excluded from this heading

when, because of the addition of other substances, they have the

character of food preparations, medicaments, etc.

As pointed out in the ENs to heading 1302, what is covered

in the heading are vegetable products obtained by natural

exudation or by incision or by solvent extraction. The products

in this case are the result of far more than simple processing.

They go through several extractions, refining processes, and even

centrifugation. The Gingko products are mixtures of flavonoids

and soybean phospholipids. The Escin/ -sitosterol PHYTOSOME

product is a mixture of saponin, -sitosterol and phospholipids.

In other words, the products cannot be classified in heading 1302

as extracts or mixtures of extracts. They are formulated

products far advanced from the extracts which would be classified

in chapter 13.

The next alternative proposed by counsel is that

classification in chapter 30, HTSUS, (medicaments) is appropriate

because, it is asserted, the extracts found in PHYTOSOME have

been recognized to exhibit anesthetic, prophylactic or

therapeutic properties. Escin, as well as the Gingko products,

are also said to exhibit such prophylactic or therapeutic

properties.

We are unable to find a basis for classifying these products

in chapter 30, HTSUS. There is no convincing proof that any of

these products are either prophylactic or therapeutic in nature.

The producer mentions that the gingko extract is useful for the

health food market. However, this is not sufficient for the

products to be considered medicaments, or to endow them with

therapeutic or prophylactic properties. In the materials

submitted by counsel, the products are described as being a base

which is used as a part of a final product. While these products

may be considered to enhance the effectiveness of the final

product, they do not treat or prevent any symptom or condition.

As such, they do not have the characteristics which are necessary

for classification in chapter 30.

Another possible classification for the articles suggested

by counsel is in heading 2938, HTSUS, for glycosides, on the

basis of GRI 3(c). GRI 3(c) provides that, in the case of goods

classifiable under two or more headings which cannot be

classified by reference to GRI 3(a) or 3 (b), the goods will be

classified under the heading which occurs last in numerical order

among those which equally merit consideration.

As to the question of classification as a glycoside in

heading 2938, HTSUS, the ENs to that heading state that \"This

heading also covers natural mixtures of glycosides and their

derivatives (e.g., a natural mixture of digitalis glycosides

containing purpurea glycosides A and B, digitoxin, gitoxin,

gitaloxin, etc. ); but deliberate intermixtures or preparations

are excluded.\" (Emphasis in the original) As has been pointed

out, the products here - Phytosomes - are formulated

preparations, mixtures of the particular extract, flavonoids and

soybean phospholipids. As such, they are deliberate mixtures of

far more than vegetable extracts and are not eligible for

classification in heading 2938.

HOLDING:

Gingko Biloba (Dimeric) Bioflavonoid PHYTOSOME and Gingko

Biloba PHYTOSOME are mixtures of flavonoids and soybean

phospholipids and are classified in the provision for prepared

binders for foundry molds or cores; chemical products and

preparations of the chemical or allied industries (including

those consisting of mixtures of natural products), not elsewhere

specified or included; residual products of the chemical or

allied industries, not elsewhere specified or included: other:

other: mixtures containing 5 percent or more by weight of one or

more aromatic or modified aromatic substances: other, in

subheading 3823.90.27, HTSUS (subheading 3824.90.28 in 1998).

Escin/ -sitosterol PHYTOSOME , a mixture of Saponin, -sitosterol and
soybean phospholipids, is classified in the

provision for prepared binders for foundry molds or cores;

chemical products and preparations of the chemical or allied

industries (including those consisting of mixtures of natural

products), not elsewhere specified or included; residual products

of the chemical or allied industries, not elsewhere specified or

included: other: other: mixtures containing 5 percent or more by

weight of one or more aromatic or modified aromatic substances:

other: other: other: other: other: other, in subheading

3823.90.5050, HTSUS (subheading 3824.90.50 in 1998).

You should mail this decision to the internal advice

applicant, through its counsel, no later than 60 days from the

date of this letter. On that date the Office of Regulations and

Rulings will take steps to make the decision available to Customs

personnel via the Customs Rulings Module in ACS and to the public

via the Diskette Subscription service, the Freedom of Information

Act, and other public access channels.

Sincerely,

John Durant, Director

Commercial Rulings Division