HQ 953679

February 3 1994

CLA-2 CO:R:C:F 953679 JGH

CATEGORY: Classification

TARIFF NO.: 2106.90.60

District Director of Customs

P.O. Box 789

300 Second Avenue South

Great Falls, Montana 59405

Re: Decision on Application for Further Review of Protest No.

3303-92-100044, on the Classification of Certain Plant

Extracts and Parts.

Dear Sir:

The imported extracts and powders from Italy were imported

by Solaray, Inc., of Ogden, Utah, in July 1992.

FACTS:

The merchandise consists of a variety of plant extracts and

encapsulated plant parts put up for retail sale as food

supplements. Package descriptions of the various products were

submitted:

Bilberry Extract, described as an herb extract in capsule

form, was said to contain 15 percent anthocyanosides in a base of

natural cellulose.

Hawthorn Extract, described as an herb extract in capsule

form, said to contain 100 mg. of hawthorn extract and 1.8 mg.

Vitexin-2-rhamnoside in a base of wild Hawthorn berries.

Ginkgo Biloba Extract, described as an herb extract,

consisting of a capsule of 24 percent ginkgo flavoglycosides in

vegetable cellulose.

Ginseng Root was said to be capsules of powdered ginseng

root in vegetable cellulose.

Echinacea Angustifolia Extract, described as an herbal

extract, a capsule of echinacosides angustifolia in a vegetable

cellulose. - 2 -

Madagascar Centella Asiatica, described as a capsule of

powdered form of the herb with 10 percent triterpenes in natural

cellulose.

Tumeric Extract, described as being a capsule of 95 percent

Curcumin.

Valerian Root Extract, described as a capsule of valeric

acids in a base of wild East Indian Valerian root.

St. John\'s Wort Extract, described as capsules of St. John\'s

Wort extract containing 14 percent hypericin in a base of

hawthorn berries.

Pygeum Africanum Extract, described as a capsule of the

powdered bark extract.

Milk Thistle Extract, described as a capsule of silymarin in

a base of natural cellulose.

ISSUE:

Whether the ginseng root capsule is classifiable as ginseng

root in subheading 1211.20.00, HTSUS, and the other extracts as

vegetable extracts in subheading 1302.19.40, HTSUS; or whether

all of the products should be classifiable as food preparations

in subheading 2106.90.60, HTSUS.

LAW AND ANALYSIS:

In behalf of the importer it is contended that the products

should be classified as raw materials; that they are only

considered as food products when they contain other additives

such as vitamins or iron compounds.

The Explanatory Notes (ENs) to heading 1211, HTSUS, state

that the vegetable products covered are in the form of fresh,

dried, whole, cut, crushed, ground, or powdered. The ENs to

heading 1302 state that the materials classified in that heading

are generally raw materials for various manufactured products;

products are excluded from that heading when, because of the

addition of other substances, they have the character of food

preparations.

The ENs go on to state in regard to heading 1211 that the

vegetable products covered in the heading are excluded if they

are mixed with other substances. Here the ginseng roots and

centella asiatica have been mixed with vegetable cellulose. They

are not to be used as raw materials in the manufacture of other

products but are put up as food supplements. - 3 -

Although the ENs to heading 2106 mention that many food

supplements are often based on plant extracts containing added

vitamins and \"sometimes minute quantities of iron compounds\",

such products do not have to contain vitamins and/or minerals to

be considered as food supplements; the very nature of these

products - herb extracts mixed with other substances, even

without the promotional literature, are considered food

supplements. Essentially chapters 12 and 13 cover raw vegetable

materials; products to be further processed. Here, in contrast,

the extracts are encapsulated, usually with an added excipients

such as natural cellulose, roots, or berries; and, what is

apparent from the promotional literature, the intent is to have

finished food products which are marketed as food supplements.

Such products are classifiable in heading 2106.

HOLDING:

The encapsulated herb and plant extracts described above are

classifiable as other food preparations not elsewhere specified

or included in subheading 2106.90.60, HTSUS.

You are directed to deny the protest in full. A copy of

this decision should be furnished the protestant with the Form 19

Notice of Action.

In accordance with Section 3A(11)(b) of Customs Directive

099 3550-065, dated August 4, 1993, Subject: Revised Protest

Directive, this decision should be mailed by your office to the

protestant no later than 60 days form the date of this letter.

Any reliquidation of the entry in accordance with the decision

must be accomplished prior to mailing of the decision. Sixty

days from the date of the decision 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 the

public and the public via the Diskette Subscription Service,

Lexis, Freedom of Information Act and other public access

channels.

Sincerely,

John Durant, Director