# HQ 964710

March 8, 2002

# 

# CLA-2 RR:CR:GC 964710AM

CATEGORY: Classification

TARIFF NO.: 2932.29.50

Port Director

U.S. Customs Service

Bldg. #77\
Jamaica, NY 11430

Re: Protest 1001-99-105787; Tri-Sodium L-Ascorbyl-2-Phosphate (SAP)

Dear Port Director:

This is our decision on Protest 1001-99-105787, filed by counsel on
behalf of Showa Denko America, Inc., against your decision in the
classification, under the Harmonized Tariff Schedule of the United
States (HTSUS), of Tri-Sodium L-Ascorbyl-2-Phosphate (hereinafter "SAP")
a vitamin C derivative used in cosmetics. In preparing this ruling,
consideration was given to supplemental submissions filed by counsel
dated February 13, 2002, March 1, 2002, and arguments presented in a
meeting at Customs Headquarters on February 15, 2002.

**FACTS:**

SAP is a pure, unmixed chemical compound vitamin C derivative. Its CAS
registry number is 66170-10-3. Its molecular formula is expressed as
C~6~H~6~O~9~P•Na~3~.

Customs laboratory report 2-1999-21712, dated August 31, 1999, states,
in pertinent part, the following:

> The sample, a white powder, is sodium ascorbyl phosphate, a
> non-aromatic heterocyclic compound with oxygen hetero-atom(s) only
> (lactone).
>
> The technical literature indicates that the product is a heat
> stabilizer/antioxidant to extend the shelf-life of red blood cells.

Vitamin C (ascorbic acid) plays primary roles in the synthesis of
collagen and carnitine, is required for the conversion of folic acid to
folinic acid and promotes the intestinal absorption of iron. Its primary
therapeutic use is in the treatment of scurvy. *See* [Goodman &
Gilman\'s The Pharmacological Basis of Therapeutics]{.underline}, Ninth
Ed., p. 1569.

Protestant states that "SAP is typically used as a vitamin C substitute
for a wide range of clinical and nutritional purposes including as
ingredients for cosmetic products, food additives and fish feed
additives." We note that protestant's implication above that the
imported merchandise is used as a food additive in the U.S. is
erroneous, as the Food and Drug Administration (FDA) has not approved
the substance for such use.

The entry pertaining to the subject protest was liquidated on October 8,
1999. The subject protest was timely filed on November 22, 1999.
Protestant entered the product under subheading 2936.27.00, HTSUS, the
provision for \"\[P\]rovitamins and vitamins, natural or reproduced by
synthesis (including natural concentrates), derivatives thereof used
primarily as vitamins, and intermixtures of the foregoing, whether or
not in any solvent; \[V\]itamin C (Ascorbic acid) and its derivatives.\"
The merchandise was liquidated under subheading 2932.29.50, HTSUS, the
provision for "\[H\]eterocyclic compounds with oxygen hetero-atom(s)
only: \[L\]actones: \[O\]ther lactones: \[O\]ther."

**ISSUE:**

#  What is the classification of SAP under the HTSUS?

**LAW AND ANALYSIS:**

Merchandise imported into the United States is classified under the
HTSUS. Tariff classification is governed by the principles set forth in
the General Rules of Interpretation (GRIs) and, in the absence of
special language or context, which requires otherwise, by the Additional
U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of
Interpretation are part of the HTSUS and are to be considered statutory
provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the
terms of the headings of the tariff schedule and any relative section or
chapter notes and, unless otherwise required, according to the remaining
GRIs taken in their appropriate order. GRI 6 requires that the
classification of goods in the subheadings of headings shall be
determined according to the terms of those subheadings, any related
subheading notes and, *mutatis mutandis*, to the GRIs.

In understanding the language of the HTSUS, the Explanatory Notes (ENs)
of the Harmonized Commodity Description and Coding System may be
utilized. The ENs, although not dispositive or legally binding, provide
a commentary on the scope of each heading, and are generally indicative
of the proper interpretation of the HTSUS. *See* T.D. 89-80, 54 Fed.
Reg. 35127 (August 23, 1989).

Additional U.S. Rule of Interpretation 1(a), HTSUS, requires that \"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\".

The HTSUS provisions under consideration are the following:

2932 Heterocyclic compounds with oxygen hetero-atom(s) only: Compounds
containing an unfused furan ring (whether or not hydrogenated) in the
structure:

\* \* \* \* \*

2936 Provitamins and vitamins, natural or reproduced by synthesis
(including natural concentrates), derivatives thereof used primarily as
vitamins, and intermixtures of the foregoing, whether or not in any
solvent:

Chapter Note 3 to chapter 29, HTSUS, states that \"Goods which could be
included in two or more of the headings of this chapter are to be
classified in that one of the headings which occurs last in numerical
order."

EN 29.36 states, in pertinent part, the following:

> Vitamins are active agents, usually of complex chemical composition,
> which are obtained from outside sources and are essential for the
> proper functioning of human or other animal organisms. They cannot be
> synthesized by the human body and must therefore be obtained in final
> or nearly final form (provitamins) from outside sources. They are
> effective in relatively minute amounts and may be regarded as
> exogenous biocatalysts, their absence or deficiency giving rise to
> metabolic disturbances or "deficiency diseases".
>
> This heading includes:

(a) Provitamins and vitamins, whether natural or reproduced by
    synthesis, and derivatives thereof used primarily as vitamins.

\* \* \* \* \* \* \* \* \* \*

## (IJ)VITAMIN C AND DERIVATIVES THEREOF

USED PRIMARILY AS VITAMINS

Vitamin C is the anti-scorbutic vitamin, and increases resistance to
infections. It is soluble in water.

\(1\) Vitamin C (L- or DL-ascorbic acid (INN)). Ascorbic acid is
contained in many foodstuffs of vegetable (fruit and green vegetables,
potatoes, etc.) or animal (liver, spleen, adrenal glands, brains, milk,
etc.) origin; it can be extracted from lemon juice, green and red
peppers, green aniseed leaves, and from residual liquors from the
treatment of agave fibres. Nowadays, it is obtained almost exclusively
by synthesis. It is a white crystalline powder, fairly stable in dry
air, and acts as a strong reducing agent.

\(2\) Sodium ascorbate.

\(3\) Calcium ascorbate and magnesium ascorbate.

\(4\) Strontium (L) ascorbocinchoninate (strontium (L)
ascorbo-2-phenylquinoline-4-carboxylate).

\(5\) Sarcosine ascorbate.

\(6\) L-Arginine ascorbate.

\(7\) Ascorbyl palmitate. This liposoluble form of vitamin C is also
used as an emulsifier and anti-oxidant for fats and oils.

\(8\) Calcium hypophosphitoascorbate.

\(9\) Sodium ascorboglutamate.

(10) Calcium ascorboglutamate.

In accordance with the chapter note quoted above, protestant argues that
the imported merchandise is indeed described by both headings and should
therefore be classified in heading 2936, the later occurring heading.

We agree that if SAP can be classified in heading 2936, HTSUS, it must
be so classified, even though SAP is also classifiable in heading 2932,
HTSUS. However, SAP is not described by the terms of heading 2936,
HTSUS. By its terms, \" . . . derivatives . . . used primarily as
vitamins,\" heading 2936, HTSUS, is a principal use provision. The use
of the imported product in the U.S., according to protestant, is as a
"Vitamin C substitute ingredient in cosmetics for skin treatment and
skin whitening . . . ." These facts are relevant to the determination of
whether or not the terms of heading 2936, a principal use provision,
describes the merchandise. See Additional U.S. Rule of Interpretation
1(a).

The court in *E.M. Chemicals v. United States*, 20 C.I.T. 382, 923 F.
Supp. 202 (1996) explained the application of principal use provisions
thus:

> When applying a \"principal use\" provision, the Court must ascertain
> the class or kind of goods which are involved and decide whether the
> subject merchandise is a member of that class. See, *supra*,
> Additional US Rule of Interpretation 1 to the HTSUS. In determining
> the class or kind of goods, the Court examines factors which may
> include: (1) the general physical characteristics of the merchandise;
> (2) the expectation of the ultimate purchasers; (3) the channels of
> trade in which the merchandise moves; (4) the environment of the sale
> (e.g., the manner in which the merchandise is advertised and
> displayed); (5) the usage of the merchandise; (6) the economic
> practicality of so using the import; and (7) the recognition in the
> trade of this use. *United States v. Carborundum Co*., 63 C.C.P.A. 98,
> 102, 536 F.2d 373, 377, cert. denied, 429 U.S. 979, 50 L. Ed. 2d 587,
> 97 S. Ct. 490 (1976); see also *Lenox Coll.*, 20 C.I.T., Slip Op.
> 96-30, at page 5.

The ENs provide substantive guidance as to the scope of the heading.
Using the items listed in the ENs as a guide to the class or kind of
goods to which the imported merchandise must belong to be classified in
the heading, we apply the *Carborundum* factors above, as follows:

(1) The listed compounds are physically derivatives of Vitamin C. The
    imported merchandise is also a derivative of Vitamin C. We note that
    EN 2932 (B)(r) lists isoascorbic acid as included in heading 2932,
    HTSUS.

(2) The ultimate purchaser expects that the listed compounds will
    perform as does Vitamin C, a nutritional supplement required for the
    conversion of folic acid to folinic acid, promoting the intestinal
    absorption of iron and synthesis of adrenal steroids. SAP is an
    ingredient in cosmetics where it is expected to prevent wrinkles,
    lighten skin and preserve the other ingredients in the cosmetic
    formulation.

(3) The listed compounds move through channels of trade which lead to
    production as a dietary supplement or food additive for human
    consumption. SAP is typically added to cosmetic preparations or used
    as a heat stabilizer/antioxidant to extend the life of red blood
    cells.

(4) The environment of sale of the listed compounds is as a dietary
    supplement, advertised for their nutritional qualities. SAP, on the
    other hand, is heavily advertised as the active ingredient in
    cosmetic applications with claims that it prevents wrinkles and
    lightens skin.

(5) The listed compounds are used as dietary supplements or as food
    additives for human or animal consumption. They maintain their
    vitamin activity. Five of the substances in the EN are listed in the
    International Cosmetic Ingredient Dictionary and Handbook as
    antioxidants useable in cosmetics and the ENs note the use of one of
    the substances, ascorbyl palmitate, as an antioxidant in fats and
    oils. The instant merchandise also maintains physiological action in
    its derivative form. However, the general sub-Chapter XI EN does not
    state that physiological action is dispositive on the classification
    issue. In fact, the note states that the substances in the
    sub-Chapter must be "essential for the proper functioning and
    harmonious development of the animal and vegetable organism." Here,
    the merchandise is principally used in cosmetic ingredients with no
    proof that it performs its physiological action on the body "for the
    proper functioning and harmonious development of the animal and
    vegetable organism."

(6) The imported merchandise, SAP, has no economic practicality as a
    food additive for human consumption or dietary supplement as it is
    not approved for such use by the Food and Drug Administration (FDA).
    Although another agency\'s regulations are not controlling in
    Customs classification decisions, where Customs must apply a \"use\"
    provision to merchandise, the controlling regulatory scheme is
    indeed relevant.

(7) The trade recognizes the nutritional uses of the listed compounds.
    SAP is not so recognized. Customs must look at "the principal or
    predominant use, or the usual and common use. Neither the fugitive
    use of an article, nor the mere susceptibility or capability of use,
    is a determinative factor." HQ 963032, dated July 24, 2000. Although
    SAP is used for nutritional purposes in fish food in other
    countries, protestant has submitted no evidence that SAP is not
    primarily used in the United States as a cosmetic anti-wrinkle, skin
    whitening and preservative ingredient. Such use is certainly not
    "essential for the proper functioning of human or other animal
    organisms." EN 29.36.

On balance, analysis of the *Carborundum* factors reveals that SAP does
not belong to the class or kind of goods that are "principally used" as
vitamins, even though it is undisputedly a derivative of Vitamin C.

Furthermore, protestant claims that Headquarters Ruling (HQ) 953829,
dated July 26, 1993, supports the position that "stabilized vitamins
used in animal feed are classifiable under HTSUS subheading 2936.90." HQ
953829 deals with a combined vitamin A and vitamin D3 product solely
used for nutrition in animal feed. As such, it is correctly classified
in heading 2936, HTSUS, by the terms of the heading, "Provitamins and
vitamins. . . ." This ruling has no bearing on the situation where, as
here, the product is a vitamin derivative used primarily in cosmetic
applications.

Moreover, comparisons to substances classified in Chapter 29, HTSUS, as
drugs, or in heading 3004, HTSUS, as medicaments are irrelevant. To be
classified as a drug or medicament a substance must be used for its
therapeutic properties. The court in *Lonza, Inc. v. U.S.*, 46 F. 3d
1098 (Fed.Cir. 1995) defines "therapeutic" substances as those \"having
healing or curative powers.\" Certainly there are topical and other
routes of administration acceptable for drugs or medicaments either
because the body part to be healed, (conjunctiva of the eye, the skin,
or the oral mucosa, etc) can be treated by direct application of the
drug, or because the substance is absorbed into the blood stream through
the skin. See New York Ruling Letters G84846, dated November 30, 2000,
E82841, dated June 7, 1999, and HQs 961177 and 961666, dated April 14,
1998.

Here, the problem is not the route of administration, but the fact that
protestant does not claim, and has not shown, that a dermal route of
administration of SAP effects the metabolic functioning of the body.
Stated another way, while SAP applied to the skin has been shown to
build collagen in the skin, thereby preventing wrinkles, application on
the skin has not been shown to build collagen in the bones, thereby
preventing scurvy. In fact, application of SAP on the skin has not been
shown to perform any of the metabolic functions that vitamin C performs
in the body, such as converting folic acid to folinic acid and promoting
the intestinal absorption of iron. Hence, SAP is simply not used, as are
vitamins, for its nutritional content and contribution to the metabolic
functions of the body. Rather, in the U.S., SAP is used solely to
prevent wrinkles and lighten age spots.

Lastly, protestant submitted, for our consideration, a determination
made by another country classifying the substance in subheading 2936.27,
under the Harmonized Tariff System. However, such determinations are
merely instructive of how others may classify like goods. Customs is not
bound to abide by another country\'s determination, especially, as is
the case here, where no rationale is provided for the finding. *See*
T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).

**HOLDING:**

SAP is classified in subheading 2932.29.50, HTSUS, the provision for
"\[H\]eterocyclic compounds with oxygen hetero-atom(s) only:
\[L\]actones: \[O\]ther lactones: \[O\]ther." The protest is
[DENIED]{.smallcaps}.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550‑065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, to the protestant
no later than 60 days from the date of this letter. Any reliquidation of
the entry or entries in accordance with the decision must be
accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
[www.customs.gov](http://www.customs.ustreas.gov/), by means of the
Freedom of Information Act, and other methods of public distribution.

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