CAFC Affirms Classification of Beta-Carotene Mix as Provitamins
The U.S. Court of Appeals for the Federal Circuit on Nov. 20 affirmed a lower court decision on the classification of Roche Vitamin’s BetaTab beta-carotene mixture as a provitamin, rather than as a food preparation (here). The government had appealed the Court of International Trade’s June 2013 ruling (see 13062701), arguing that stabilizers added to the mixture precluded classification as general provitamins because they made the mixture more suitable for a specific use. The Federal Circuit took issue with CIT’s interpretation of the applicable tariff provision, but nonetheless found nothing was added to the mixture that changed the beta-carotene’s suitability for general use.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
At issue in the case was Note 1 to Chapter 29, which says merchandise can only be classified in Chapter 29 if it has an added stabilizer “necessary for [its] preservation or transport.” An explanatory note to heading 2936 clarifies that classification as provitamins is only allowed if the addition of a stabilizer or certain other material “does not alter the character of the basic product and render it particularly suitable for specific use rather than for general use.”
CIT had found that the BetaTab was not precluded by the relevant notes from classification in heading 2936.10.00 as “provitamins, unmixed, which is duty free. On appeal, the government argued that the addition of other materials, including antioxidants, gelatin, sucrose and corn starch, changed the BetaTab so that it was now more suitable for specific use as a nutritional ingredient in vitamin tablets and capsules. It said the BetaTab should instead be classified under subheading 2106.90.97 as “food preparations not otherwise specified,” dutiable at $0.28/kg + 8.5%.
In its decision, CIT had further defined the phrase ”particularly suitable for a specific use rather than for general use.” It concluded that “added ingredients that make a chemical highly capable of a use that is not an ordinary use of chemicals of the heading … will render the item ‘particularly suitable for specific use ….’” The Appeals Court said CIT’s interpretation was “overly narrow,” and that the court “appears to have erred.”
However, that didn’t change CAFC’s conclusion that the BetaTab was nonetheless meant for general use, and classifiable under heading 2936. The stabilizers used in BetaTab were “essentially the same as those used to stabilize other vitamins and other beta-carotene products that were marketed for use as colorants,” it said. No ingredients were added specifically for tableting, such as excipients, said CAFC. And the Beta-Tab remains suitable for general use as a source of vitamin A in foods, beverages, and vitamin products, said the Appeals Court.
(Roche Vitamins, Inc. v. U.S., #13-1568, dated 11/20/14, Judges Prost, Lourie and Dyk)
(Attorneys: Erik Smithweiss of Grunfeld Desiderio for plaintiff-appellee Roche Vitamins; Patricia McCarthy for defendant-appellant U.S. government)