HQ 954615

December 10,1993

CLA-2 CO:R:C:F 954615 JGH

CATEGORY: Classification

TARIFF NO.: 2106.90.6599

Peter S. Reichertz, Esq.

Arent Fox Kintner Plotkin & Kahn

1050 Connecticut Aveue, NW

Washington, D.C. 20036-5339

RE: Classification of Ricola Sugar Free Throat Drops

Dear Mr. Reichertz:

Your letter of June 14, 1993, concerns the classification

under the Harmonized Tariff Schedule of the United States (HTSUS)

of a throat drop product produced by Ricola Ag of Switzerland:

Ricola Sugar Free Throat Drops.

FACTS:

The product is said to be a lozenge designed to alleviate

sore throat pain, and to consist principally of isomalt (over 95

percent) and menthol. Isomalt is described as a sugar alcohol

substance, similar to sorbitol and mannitol, prepared by

enzymatic rearrangement of sucrose.

ISSUE:

Classification of sugar-free throat drops in the HTSUS.

LAW AND ANALYSIS:

It is your opinion that, based on the Explanatory Notes

(ENs) to Heading 1704, the product is classifiable as a

medicament in Heading 3004, HTSUS, rather than a confectionery in

Heading 1704, HTSUS. - 2 -

Recently, however, the Harmonized System Committee revised

the Explanatory Notes to Headings 1704 and 3004 to which you

refer. They now read as follows:

Heading 1704:

\"(v) Preparations put up as throat pastilles or cough drops,

consisting essentially of sugars (whether or not with other

foodstuffs such as gelatin, starch or flour) and flavoring agents

(including substances having medicinal properties, such as benzyl

alcohol, menthol, eucalyptol and tolu balsam). However, throat

pastilles or cough drops which contain substances having

medicinal properties, other than flavouring agents, fall in

Chapter 30, provided that the proportion of those substances in

each pastille or drop is such that they are thereby given

therapeutic or prophylactic uses.\"

Heading 3004:

\"However, preparations put up as throat pastilles or cough

drops, consisting essentially of sugars (whether or not with

other foodstuffs such as gelatin, starch or flour) and flavouring

agents (including substances having medicinal properties, such as

benzyl alcohol, menthol, eucalyptol and tolu balsam) fall in

Heading 1704. Throat pastilles or cough drops containing

substances having medicinal properties, other than flavouring

agents, remain classified in this heading when put up in measured

doses or in forms or packings for retail sale, provided that the

proportion of those substances in each pastille or drop is such

that they are thereby given therapeutic or prophylactic uses.\"

Therefore, in view of the revised definitions in the ENs of

cough drops or throat pastilles, a drop containing a sweetener

and a flavouring agent, such as the one here, since it lacks a

medicinal substance, in addition to a flavouring agent, would not

be classifiable as a medicament in Heading 3004.

Since the lozenges contain over 95 percent of a sugar

substitute, they are not classifiable as a sugar confectionery in

heading 1704, since Chapter 17 covers sugars other than the

chemically pure sugars (other than sucrose, lactose, glucose or

fructose) or sugar substitutes.

Thus, drops or lozenges of this type, since they are not

classifiable in Headings 1704 or 3004, are classifiable as other

food preparations, not elsewhere specified or included, in

subheading 2106.90.6599, HTSUS.

\- 3 -

HOLDING:

Ricola Sugar Free Throat Drops, described above, are

classifiable in subheading 2106.90.6599, HTSUS. The rate of duty

is 10 percent ad valorem.

Sincerely,

John Durant, Director