US Files Cross-Motion For Judgment in 2012 Beta-Carotene Classification Case
A food supplement producer’s products are dietary supplements, not food dyes or additives, the U.S. said Jan. 10 in a cross-motion for summary judgment filed in a case dating back to 2012 (BASF Corporation v. United States, CIT Consol. # 12-00422).
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The product in question, exporter BASF’s Betatene -- formulated from beta-carotene, “a naturally occurring form of provitamin A that gives carrots and pumpkins their distinctive orange color” -- was classified by CBP as a food preparation “not elsewhere specified or included’ under Harmonized Tariff Schedule heading 2106. BASF, on the other hand, argued the merchandise should have been classified under heading 2936 as a “general-use ‘provitamin.’”
But to fall under that category, the Betatene couldn’t contain more additives than necessary to stabilize it for transportation or preservation, and it couldn’t be “particularly suitable for specific use rather than general use,” the U.S. said.
It claimed Betatene failed both of those conditions. First, the product’s additives, “[a]s BASF’s own expert acknowledges,” are also necessary to “prepare the product for tableting.” Both sides agree that this goes beyond stabilizing the product for transportation or preservation, the government said. BASF itself makes other formulations that have fewer additives and are still “just as stable as Betatene,” it claimed.
Tableting also makes it not suitable for use as a food additive or dye, the government said. It noted that Betatene tablets, when dropped in water, only “slightly colorize,” and that they have a “funny taste” if chewed. In other words, the tablets are neither dyes nor food additives, it said.
Betatene is “particularly suitable for use as a dietary-supplement ingredient, but not suitable for beta-carotene’s other uses,” it said.