HS Code Classification Probiotics> HS Code HS Classification

30^th  December 2022

The Chief Manager, Business  Intelligence and  Analysis

Kenya Revenue Authority

Times Towers

Nairobi, Kenya

Dear Sir,

REF: ADVANCE RULING APPEAL

Reference is made to your letters xxxxxxxxxxxxxxxxx of 15^th June 2021 and

 xxxxxxxxxxxxxxxxxxxx of 29^th September,2022

The letters address the HS Classification of Probiotics The advance ruling placed the items at subheading 2106.90.91, which we disagree with.  We have extracted the relevant Explanatory Notes(EN) and at the end of each extract, find our observations on the Notes in blue bold. 

Definitions and Opinions on Probiotics from Public Sources

Probiotics are live microorganisms that they provide health benefits when consumed, generally by improving or restoring the gut microbiota.  The first discovered probiotic was a certain strain of bacillus in Bulgarian yoghurt, called Lactobacillus bulgaricus.

An October 2001 report by the World Health Organization (WHO) defines probiotics as “live microorganisms which when administered in adequate amounts confer a health benefit on the host

Probiotics are live microorganisms that are intended to have health benefits when consumed or applied to the body. They can be found in yogurt and other fermented foods, dietary supplements, and beauty products.

Although people often think of bacteria and other microorganisms as harmful “germs,” many are actually helpful. Some bacteria help digest food, destroy disease-causing cells, or produce vitamins. Many of the microorganisms in probiotic products are the same as or similar to microorganisms that naturally live in our bodies.

Probiotics may contain a variety of microorganisms. The most common are bacteria that belong to groups called Lactobacillus and Bifidobacterium. Other bacteria may also be used as probiotics, and so may yeasts such as Saccharomyces boulardii.

Different types of probiotics may have different effects. For example, if a specific kind of Lactobacillus helps prevent an illness, that doesn’t necessarily mean that another kind of Lactobacillus or any of the Bifidobacterium probiotics would do the same thing.

Probiotics have shown promise for a variety of health purposes, including prevention of antibiotic-associated diarrhoea (including diarrhoea caused by Clostridium difficile), prevention of necrotizing enterocolitis and sepsis in premature infants, treatment of infant colic, treatment of periodontal disease, and induction or maintenance of remission in ulcerative colitis.

According to the definition of the WHO (World Health Organisation), probiotics are “living organisms that, when administered in adequate quantities, provide health benefits to the body”.

The term probiotic is derived from the Greek word ‘pro-bios’, meaning ‘pro-life’, and thus indicates specific strains of lactic acid bacteria, living and active, which act to protect the host organism by strengthening the intestinal ecosystem.

These micro-organisms are able to resist the action of gastric juice and, by settling in the intestine, fight the proliferation of harmful germs. Their presence improves the quality of the intestinal flora, ensuring its balance, and has a positive effect on the immune system.

Specifications of the composition of the Probiotic

The probiotics to be imported contain, and Lactobacillus Helveticus, Bifidobacterium

Lactobacillus helveticus is a lactic-acid producing, rod-shaped bacterium of the genus Lactobacillus.   Lactobacillus helveticus is a type of lactic acid bacteria that’s naturally found in the gut. It’s also found naturally in certain foods, like: Italian and Swiss cheeses (e.g., Parmesan, cheddar, and Gruyère) milk, kefir, and buttermilk, fermented foods (e.g., Kombucha, Kimchi, pickles, olives, and sauerkraut)

You can also find L. helveticus in probiotic supplements. L. helveticus has been linked to improved gut, oral, and mental health.

Bifidobacterium is a genus of gram-positive, nonmotile, often branched anaerobic bacteria. They are ubiquitous inhabitants of the gastrointestinal tract though strains have been isolated from the vagina and mouth of mammals, including humans. Bifidobacteria are one of the major genera of bacteria that make up the gastrointestinal tract microbiota in mammals. Some bifidobacteria are used as probiotics.  Before the 1960s, Bifidobacterium species were collectively referred to as Lactobacillus bifidus.

  Chapter 1 Explanatory Notes

GENERAL

This Chapter covers all living creatures (for food or other purposes) except :

(2) Cultures of micro-organisms and other products of heading 30.02.

1.- This Chapter covers all live animals except :

  (b) Cultures of micro-organisms and other products of heading 30.02; and

 (c) Animals of heading 95.08.

Our Observations on this EN Extract

Note that all live animals which includes  probiotics are covered by chapters 1, 30, or 95. But item (b) excludes cultures of micro-organisms.  They are to be classified in heading 30.02. There are no live animals that are covered by chapter 21 hence it follows that heading 21.06 does not.

Chapter 12 Explanatory Notes

5.- For the purposes of heading 12.12, the term “ seaweeds and other algae ” does not include :

 (a) Dead single-cell micro-organisms of heading 21.02;

 (b) Cultures of micro-organisms of heading 30.02; or

Our Observations on this EN Extract

This note points us to heading 30.02 for the classification of micro-organisms

Heading 21 Explanatory Notes

1.-  This Chapter does not cover :

       (g)  Yeast put up as a medicament or other products of heading 30.03 or 30.04; or

Our Observations on this EN Extract

Yeasts are eukaryotic, single-celled microorganisms classified as members of the fungus kingdom. This note illustrates that there are micro-organisms classifiable in Chapter 30 under headings 30.03 and 30.04

 

Heading 21.02 Explanatory Notes

(B) OTHER SINGLE-CELL MICRO-ORGANISMS, DEAD

This category covers single-cell micro-organisms such as bacteria and unicellular algae, which are not alive. Inter alia, covered here are those which have been obtained by cultivation on substrates containing hydrocarbons or carbon dioxide. These products are particularly rich in protein and are generally used in animal feeding.

Certain products of this group may be put up as food supplements for human consumption or animal feeding (e.g., in powder or tablet form) and may contain small quantities of excipients, e.g., stabilising agents and anti-oxidants. Such products remain classified here provided that the addition of such ingredients does not alter their character as micro-organisms.

Heading 21.02 Explanatory Notes

The heading excludes, inter alia :

(c) Cultures of micro-organisms (other than yeasts) and vaccines (heading 30.02).

(d) Medicaments of heading 30.03 or 30.04.

Our Observations on this EN Extract

Dead microorganisms suitable for human consumption as food supplements are classifiable in heading 21.02, not 21.06.  What is a ‘’Culture of micro-organisms’’  A microbiological culture, or microbial culture, is a method of multiplying microbial organisms by letting them reproduce in predetermined culture medium under controlled laboratory conditions. Microbial cultures are foundational and basic diagnostic methods used as a research tool in molecular biology. The note tells us that live micro-organisms are to be classified under headings 30.02, 30.03, 30.04. The probiotics are live micro-organisms

Heading 21.06 Explanatory Notes

21.06 ‑ Food preparations not elsewhere specified or included.

2106.10 ‑ Protein concentrates and textured protein substances

2106.90 ‑ Other

Provided that they are not covered by any other heading of the Nomenclature, this heading covers :

(A) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption.

(B) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk powder, etc.), for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.) (see the General Explanatory Note to Chapter 38).

     However, the heading does not cover enzymatic preparations containing foodstuffs (e.g., meat tenderisers consisting of a proteolytic enzyme with added dextrose or other foodstuffs). Such preparations fall in heading 35.07 provided that they are not covered by a more specific heading in the Nomenclature.

The heading includes, inter alia :

(1) Powders for table creams, jellies, ice creams or similar preparations, whether or not sweetened.

     Powders based on flour, meal, starch, malt extract or goods of headings 04.01 to 04.04, whether or not containing added cocoa, fall in heading 18.06 or 19.01 according to their cocoa content (see the General Explanatory Note to Chapter 19). The other powders are classified in heading 18.06 if they contain cocoa. Powders which have the character of flavoured or coloured sugars used as sweetener fall in heading 17.01 or 17.02 as the case may be.

(2) Flavouring powders for making beverages, whether or not sweetened, with a basis of sodium bicarbonate and glycyrrhizin or liquorice extract (sold as “Cocoa‑powder”).

(3) Preparations based on butter or other fats or oils derived from milk and used, e.g., in bakers’ wares.

(4) Pastes based on sugar, containing added fat in a relatively large proportion and, sometimes, milk or nuts, not suitable for transformation directly into sugar confectionery but used as fillings, etc., for chocolates, fancy biscuits, pies, cakes, etc.

(5) Natural honey enriched with bees’ royal jelly.

(6) Protein hydrolysates consisting mainly of a mixture of amino‑acids and sodium chloride, used in food preparations (e.g., for flavouring); protein concentrates obtained by the elimination of certain constituents of defatted soya‑bean flour, used for protein‑enrichment of food preparations; soya‑bean flour and other protein substances, textured. However, the heading excludes non‑textured defatted soya‑bean flour, whether or not fit for human consumption (heading 23.04) and protein isolates (heading 35.04).

(7) Non-alcoholic or alcoholic preparations (not based on odoriferous substances) of a kind used in the manufacture of various non-alcoholic or alcoholic beverages. These preparations can be obtained by compounding vegetable extracts of heading 13.02 with lactic acid, tartaric acid, citric acid, phosphoric acid, preserving agents, foaming agents, fruit juices, etc.  The preparations contain (in whole or in part) the flavouring ingredients which characterize a particular beverage.  As a result, the beverage in question can usually be obtained simply by diluting the preparation with water, wine or alcohol, with or without the addition, for example, of sugar or carbon dioxide gas.  Some of these products are specially prepared for domestic use; they are also widely used in industry in order to avoid the unnecessary transport of large quantities of water, alcohol, etc. As presented, these preparations are not intended for consumption as beverages and thus can be distinguished from the beverages of Chapter 22.

      The heading excludes preparations of a kind used for the manufacture of beverages, based on one or more odoriferous substances (heading 33.02).

(8)   Edible tablets with a basis of natural or artificial perfumes (e.g., vanillin).

(9)  Sweets, gums and the like (for diabetics, in particular) containing synthetic sweetening agents (e.g., sorbitol) instead of sugar.

(10) Preparations (e.g., tablets) consisting of saccharin and a foodstuff, such as lactose, used for sweetening purposes.

(11) Autolysed yeast and other yeast extracts, products obtained by the hydrolysis of yeast. These products cannot provoke fermentation and they have a high protein value. They are used mainly in the food industry (e.g., for the preparation of certain seasonings).

(12) Preparations for the manufacture of lemonades or other beverages, consisting, for example, of :

‑     flavoured or coloured syrups, being sugar solutions with natural or artificial substances added to give them the flavour of, for example, certain fruits or plants (raspberry, blackcurrant, lemon, mint, etc.), whether or not containing added citric acid and preservatives;

‑     syrup flavoured with an added compound preparation of this heading (see paragraph (7) above) containing, in particular, either cola essence and citric acid, coloured with caramelised sugar, or citric acid and essential oils of fruit (e.g., lemon or orange);

‑     syrup flavoured with fruit or nut juices which have been modified by the addition of constituents (citric acid, essential oil extracted from the fruit, etc.) in such quantities that the balance of the fruit or nut juice constituents as found in the natural juice is clearly upset;

‑     concentrated fruit juice with the addition of citric acid (in such a proportion that the total acid content is appreciably greater than that of the natural juice), essential oils of fruit, synthetic sweetening agents, etc.

      Such preparations are intended to be consumed as beverages after simple dilution with water or after further treatment. Certain preparations of this kind are intended for adding to other food preparations.

(13) Mixtures of ginseng extract with other ingredients (e.g., lactose or glucose) used for the preparation of ginseng “tea” or beverage.

(14) Products consisting of a mixture of plants or parts of plants (including seeds or fruits) of different species or consisting of plants or parts of plants (including seeds or fruits) of a single or of different species mixed with other substances such as one or more plant extracts, which are not consumed as such, but which are of a kind used for making herbal infusions or herbal “teas”, (e.g., those having laxative, purgative, diuretic or carminative properties), including products which are claimed to offer relief from ailments or contribute to general health and well-being.

     The heading excludes products where an infusion constitutes a therapeutic or prophylactic dose of an active ingredient specific to a particular ailment (heading 30.03 or 30.04).

       The heading also excludes such products classifiable in heading 08.13 or Chapter 9.

(15) Mixtures of plants, parts of plants, seeds or fruit (whole, cut, crushed, ground or powdered) of species falling in different Chapters (e.g., Chapters 7, 9, 11, 12) or of different species falling in heading 12.11, not consumed as such, but of a kind used either directly for flavouring beverages or for preparing extracts for the manufacture of beverages.

      However, products of this type whose essential character is given by their content of species falling within Chapter 9 are excluded (Chapter 9).

(16) Preparations, often referred to as food supplements or dietary supplements, consisting of, or based on, one or more vitamins, minerals, amino acids, concentrates, extracts, isolates or the like of substances found within foods, or synthetic versions of such substances, put up as a supplement to the normal diet. It includes such products whether or not also containing sweeteners, colours, flavours, odoriferous substances, carriers, fillers, stabilisers or other technical aids. Such products are often put up in packaging with indications that they maintain general health or well-being, improve athletic performance, prevent possible nutritional deficiencies or correct sub-optimal levels of nutrients.

     These preparations do not contain a sufficient quantity of active ingredients to provide therapeutic or prophylactic effect against diseases or ailments other than the relevant nutritional deficiencies. Other preparations with a sufficient quantity of active ingredient to provide a therapeutic or prophylactic effect against a specific disease or ailment are excluded (heading 30.03 or 30.04).

(17) Preparations in the form of granules or powders consisting of sugar, flavouring or colouring matter (e.g., plant extracts or certain fruits or plants such as orange, blackcurrant, etc.), antioxidants (e.g., ascorbic acid or citric acid or both), preserving agents, etc., of a kind used for making beverages.  However, preparations which have the character of sugar fall in heading 17.01 or 17.02, as the case may be.

          The heading further excludes :

          (a) Preparations made from fruit, nuts or other edible parts of plants of heading 20.08, provided that the essential character of the preparations is given by such fruit, nuts or other edible parts of plants (heading 20.08).

          (b) Micro-organisms of heading 21.02 put up as food supplements for human consumption (heading 21.02).

          (c) Preparations containing cocoa, put up as food supplements for human consumption (heading 18.06).

          (d) chewing gum containing nicotine (heading 24.04).

Our Observations on this EN Extract

Note that classification on this heading requires that the product is not covered more specifically by any other heading in the Nomenclature.  Probiotics (Live micro-organisms) are covered by headings 30.02, 30.03, 30.04.Therefore heading 2106 would not apply.

There is not a single live organism covered by heading 21.06, by virtue of the items listed by WCO as classifiable under it.

Note that the heading excludes micro-organisms dead of heading 21.02. Why would we then classify live micro-organisms in heading 21.06.  This are preparations, the processing of which would kill the organisms

Further  note that, from the exclusions that not every item that has the label supplement is classifiable under heading 21.06

Note the items that constitute food supplements or dietary supplements from item 16: one or more vitamins, minerals, amino acids, concentrates, extracts, isolates, or the like of substances found within foods, or synthetic versions of such substances, based on extracts from plants, fruit concentrates, honey, fructose, etc. and containing added vitamins and sometimes minute quantities of iron compounds, put up as a supplement to the normal diet, It includes such products whether or not also containing sweeteners, colours, flavours, odoriferous substances, carriers, fillers, stabilisers or other technical aids. This definition is very critical in the determination of the correct classification of probiotics.

Probiotics maintain the correct balance of biotics in the body. This prevents the overpopulation of the bad biotics in the body therefore resulting in disease. This qualifies as preventive qualities as defined by item 16 and therefore classifiable under chapter 30, under either heading 30.02,30.03,30.04.

Chapter 30 Explanatory Notes

Notes.

1.- This Chapter does not cover:

 (a) Foods or beverages (such as dietetic, diabetic or fortified foods, food supplements, tonic

beverages and mineral waters), other than nutritional preparations for intravenous administration

(Section IV);

Our Observations on this EN Extract

This note rules out items of section IV, which includes heading 21.06. We have already seen that there are no live animals classifiable in chapter 21. The definition of the products above indicates that they are live bacterium(live animals), which are therefore not foods or beverages.

 

Heading 30.02 Explanatory Notes

30.02 – Human blood; animal blood prepared for therapeutic, prophylactic or diagnostic uses; antisera, other blood fractions and immunological products, whether or not modified or obtained by means of biotechnological processes; vaccines, toxins, cultures of micro-organisms (excluding yeasts) and similar products; cell cultures, whether or not modified. (+).

           – Antisera, other blood fractions and immunological products, whether or not modified or obtained by means of biotechnological processes :

3002.12 – – Antisera and other blood fractions

3002.13 – – Immunological products, unmixed, not put up in measured doses or in forms or packings for retail sale

3002.14 – – Immunological products, mixed, not put up in measured doses or in forms or packings for retail sale

3002.15 – – Immunological products, put up in measured doses or in forms or packings for retail sale

            – Vaccines, toxins, cultures of micro-organisms (excluding yeasts) and similar products :

3002.41 – – Vaccines for human medicine

3002.42 – – Vaccines for veterinary medicine

3002.49 – – Other

            – Cell cultures, whether or not modified :

3002.51 – – Cell therapy products

3002.59 – – Other

3002.90 – Other

This heading covers :

(3) Cultures of micro-organisms (excluding yeasts). These include ferments such as lactic ferments used in the preparation of milk derivatives (kephir, yogurt, lactic acid) and acetic ferments for making vinegar; moulds for the manufacture of penicillin and other antibiotics; and cultures of micro-organisms for technical purposes (e.g., for aiding plant growth).

                  Milk or whey containing small quantities of lactic ferments is classifiable in Chapter 4.

(E)  Cell cultures, whether or not modified

       Cell cultures are cells which have been grown under controlled conditions, generally outside their natural environment. In this context, cell cultures refer to cell cultures derived from multicellular organisms, especially human or animal cells.  Cultures of micro-organisms (excluding yeasts) are classified in subheading 3002.49.

Our Observations on this EN Extract

Item 3 tells us that cultures of micro-organisms are classifiable under heading 30.02

The definition of ‘’lactic ferments’’ in item 3 is ‘’ Lactic ferments are a type of ‘good’ bacteria which add texture and flavour to the cream. They are part of the traditional process of making these products, just like making yoghurt’’.  Lactic ferments and probiotics are often considered synonymous. The imported  probiotics are similar to lactic ferments in nature.

The definition of ‘’cultures of micro-organisms’’ A microbiological culture, or microbial culture, is a method of multiplying microbial organisms by letting them reproduce in predetermined culture medium under controlled laboratory conditions’’

Therefore, the probiotics are cultures of micro-organisms.  Note (E ) tells us that the micro-organisms are to be classified under subheading 3002.49

WCO Rulings Heading 3002.49

1. Products, in bulk, based on cultures of lactic acid bacilli, containing as the excipient or carrier either calcium carbonate and lactose, or starch and lactose, or sucrose and polysaccharides. These products are used as ingredients in medicaments or as animal feed additives for disorders and for improving digestion.

Application of GIRs 1 and 6.

Adoption : 1996

Our Observations from the WCO Ruling 3002.49

Lactobacillus’s are an order of gram-positive, low-GC, acid-tolerant, generally nonsporulating, non-respiring, either rod-shaped or spherical bacteria that share common metabolic and physiological characteristics.  Lactic acid bacteria occur in habitats with a rich nutrition supply such as decomposing plant material and fruits as well as in food and in cavities of humans and animals. They can also be found on grapes, in grape must and wine. 

The Lactic acid bacteria (LAB) are a group of bacteria that include genera such as Lactobacillus, Lactococcus, Pediococcus, Enterococcus, and Streptococcus and are frequently found in dairy fermented foods . LAB-driven fermentations often yield by-products with bioactivity and a diverse range of health-promoting effects, including protection against infectious agents, immunomodulatory effects, anti-allergenic effects, anti-obesity effects, anti-oxidant effects, enhancing the bioavailability of vitamins/minerals, anti-anxiety effects, among others

The probiotics under consideration are Lactobacillus, which are therefore covered by the WCO Ruling above and thus confirms our proposed classification at subheading 3002.49

 

Summary of Observations

The Items under consideration are Lactobacillus helveticus and Bifidobacterium.  The definition earlier in the write up indicates that this are cultures of micro-organisms.  They are live animals. They are  Lactobacillus’s.  The sticks contain active bacteria cultures.  The other ingredients are intended to create enteric properties of the capsule so that the bacteria will pass through the stomach and reach the intestinal tract without having been destroyed by the stomach acids. The capsule is designed to break apart after it reaches the intestinal tract and release the bacteria.  We further state that the language of the Explanatory Note to heading 3002 which provides “[t]he products of this heading remain classified here whether or not in measured doses or put up for retail sale and whether in bulk or in small packings” indicates that finished products are included within the scope of the headings. 

We state that the bacteria is the only active ingredient in the products, the other components being inert. Accordingly, it is the bacteria that provides the essential character to the product. The capsules contain bacteria they do not meet the standard definition of food and thus cannot be considered to be a food article classifiable in heading 2106. 

Finally, the products cannot be classified in heading 2106 because they are more specifically provided for in Chapter 30.  Please take note: Dead micro-organisms put up as supplements are classified under 21.02, Live animals are classifiable in in chapters 1,30,95.  They are specifically mentioned in chapter 30. If one argues that they  are classifiable in headings 21.02, 21.06 or 30.02. The application of rule 3(c) will apply and 30.02 rules. 

Then note that there is not a single living organism classifiable in chapter 21, these are preparations.  The six essential nutrients needed by our body are carbohydrates, proteins, fats, vitamins, minerals and water. These are the components that need to be supplemented if there is a deficiency.  Live Bacteria do not form part of those nutrients.

They are therefore classifiable under subheading 3002.49 or 3002.90 as per our writeup above as well as the WCO Rulings. We therefore seek a review of your ruling in consideration of the Explanatory Notes quoted above as well as our observations on each.

 Thanking You,

Yours Faithfully

Janron Consult

 

 Definitions of Food supplements from the Nomenclature

Section/Chapter/Heading	Definition
Heading 21.06 Note 16 Page 301	16) Preparations, often referred to as food supplements, based on extracts from plants, fruit concentrates, honey, fructose, etc. and containing added vitamins and sometimes minute quantities of iron compounds. These preparations are often put up in packagings with indications that they maintain general health or well-being. Similar preparations, however, intended for the prevention or treatment of diseases or ailments are excluded (heading 30.03 or 30.04).
Heading 22.05 Page 310	It may also include the above types of beverages which contain added vitamins or iron compounds. These products which are sometimes referred to as “ food supplements ” are designed to maintain general health or well-being.
Heading 22.08 item 16 Page 314	(16) Spirituous beverages, sometimes referred to as “ food supplements ”, designed to maintain general health or well-being. They may, for example, be based on extracts from plants, fruit concentrates, lecithins, chemicals, etc., and contain added vitamins or iron compounds
Heading 23.09 Notes Page 329	(B) PREPARATIONS FOR SUPPLEMENTING (BALANCING) FARM-PRODUCED FEED (FEED SUPPLEMENTS) Farm-produced feed is usually rather low in proteins, minerals or vitamins. The preparations devised to compensate for these deficiencies, so as to ensure a well-balanced animal diet, consist of proteins, minerals or vitamins plus additional-energy feeds (carbohydrates) which serve as a carrier for the other ingredients.
Heading 30.03 Notes Page 828	Further this heading excludes food supplements containing vitamins or mineral salts which are put up for the purpose of maintaining health or well-being but have no indication as to use for the prevention or treatment of any disease or ailment. These products which are usually in liquid form but may also be put up in powder or tablet form, are generally classified in heading 21.06 or Chapter 22. On the other hand, the heading covers preparations in which the foodstuff or the beverage merely serves as a support, vehicle or sweetening agent for the medicinal substances (e.g., in order to facilitate ingestion).
Chapter 38 General Notes Page 961	The expression “foodstuffs or other substances with nutritive value” also includes certain other products, for example, products of Chapter 28 used as mineral supplements in food preparations, sugar alcohols of heading 29.05, essential amino acids of heading 29.22, lecithin of heading 29.23, provitamins and vitamins of heading 29.36, sugars of heading 29.40, animal blood fractions of heading 30.02 for use in food preparations, casein and caseinates of heading 35.01, albumins of heading 35.02, edible gelatin of heading 35.03, edible protein substances of heading 35.04, dextrins and other edible modified starches of heading 35.05, sorbitol of heading 38.24, edible products of Chapter 39 (such as amylopectin and amylose of heading 39.13). It should be noted that this list of products is simply illustrative and should not be taken to be exhaustive. The mere presence of “foodstuffs or other substances with nutritive value” in a mixture would not suffice to exclude the mixture from Chapter 38, by application of Note 1 (b). Substances having a nutritive value that is merely incidental to their function as chemical products, e.g., as food additives or processing aids, are not regarded as “foodstuffs or substances with nutritive value” for the purpose of this Note. The mixtures which are excluded from Chapter 38 by virtue of Note 1 (b) are those which are of a kind used in the preparation of human foodstuffs and which are valued for their nutritional qualities.

 

WCO Rulings Heading 2106.90

1. Slimming (or anti-corpulence) food preparation, containing carbohydrates, guar flour, vitamins, citric acid and colouring matter.
2. Additive for cereal flours, containing vitamin B1, nicotinic acid, iron (ferrum reductum) and wheat flour; the product is for addition, in very small proportions (about 0.24 parts per 1,000), to cereal flours in order to improve their vitaminic properties.
3. Bakery additives composed of sucrose, mono- and diglycerides and sometimes skimmed milk powder, intended to be added in various proportions (up to 15 to 20 % of the finished product) to flour or dough used in the manufacture of bakers’ and pastrycooks’ wares.
4. Preparations intended to be consumed as beverages, after mixing with milk, in fine powder form, consisting essentially of sugars, fruit powder, milk powder, calcium phosphate and vitamins.
5. Instant foodstuff consisting of soya protein concentrate (51 %), a caseinate (47.5 %), soya lecithin (1 %) and vanilla oleoresin (0.5 %).
6. Food additive containing calcium carbonate (about 50 %) and casein (about 43 %).
7. Ginseng capsules (each capsule weighing about 650 mg), containing 100 mg of standardized highly-concentrated ginseng extract, vegetable oil, antioxidant (lecithin), emulsifying agent (glycerol), beeswax, colouring agent (iron oxides) and tincture of vanilla.
8. Combined emulsifying and stabilising agent in the form of a fine powder, consisting of gelatin, a mixture of mono-, di- and tri-, fatty acid esters of glycerol, glucose, sodium citrate and carrageenan, intended to be added in small proportions (approximately 2 %) in the manufacture of mousse and other dairy desserts to improve aeration and stability.
9. Stabiliser in the form of a fine powder, consisting of locust bean gum, carrageenan, pectin, gelatin, glucose and soya bean protein, intended to be added in small proportions (approximately 0.5 %) in the manufacture of fruit ice (sorbet and sherbet) to provide stable overrun.
10. Emulsifier (starch complexing agent) in the form of a fine powder, consisting mainly of a mixture of mono-, di- and tri-, fatty acid esters of glycerol, malto-dextrin and sodium caseinates, intended to be added in small proportions (approximately 0.5 %) to starch based foods.
11. A preparation known as “low-fat butter” consisting of 38.5 % milkfat, 52.4 % water, 5 % sodium caseinate and small quantities of salt, emulsifiers and a thickening or gelling agent, used as a dairy spread.
12. Preparation consisting of 51 % refined and hydrogenated coconut oil and 49 % skimmed milk powder, used for the manufacture of various food preparations (e.g., ice cream, biscuits and confectionery).
13. Preparation consisting of 70 % butterfat, 15 % refined and hydrogenated coconut oil and 15 % fine sugar, used in the biscuit, chocolate and confectionery industries.
14. Preparation consisting of 49 % butteroil, 44 % skimmed milk powder and 7 % coconut oil, used in the ice cream industry.
15. Cheese fondue, a food preparation made from cheese mixed with white wine, water, starch, kirsch brandy and an emulsifying agent.
16. Preparations in the form of granules, consisting of around 94 % by weight of sugar (saccharose and dextrose) and flavouring of plant extracts. They also contain ascorbic acid or citric acid or both. They are intended to be consumed as beverages (“teas”) after mixing with water.
17. Mixture of sodium chloride and potassium chloride with a small amount of magnesium carbonate (anti-caking agent), put up for retail sale, in salt cellars with a net content of 350 g or in 1-gram sachets. This product is used, generally by individuals on low-salt diets, as a replacement for table salt.
18. Herbal “tea”consisting of a mixture of parts of plants, spices, algae and potassium sodium tartrate, with laxative, diuretic and carminative properties, used for making herbal infusions.
19. Aloe vera tablets, put up for retail sale in a container of plastics (e.g., 60 tablets), consisting of 3 % aloe vera powder (containing 0.11 % aloin) and excipients : calcium hydrogen phosphate, purified talc, magnesium stearate, hypromellose and propylene glycol. Used as a nutritional supplement, it is claimed in the product packaging or literature to help build resistance to the common cold and to give relief from stomach disorders such as constipation and indigestion.
20. Dry solid food preparationconsisting of 69 % sugar, 29 % milk powder and 2 % dextrin, used in the manufacture of food and beverage preparations.
21. Vitamin C preparation (500 mg per tablet) put up for retail sale in a container holding 130 tablets, containing ascorbic acid, corn starch, cross-linked carboxymethyl cellulose sodium, cellulose, rose hips, stearic acid, lemon bioflavonoid complex, magnesium stearate and acerola. According to the label, the product is not intended to diagnose, treat, cure or prevent any disease.
22. Non-dairy creamer, milk substitute for use in hot beverages, in the form of a powder consisting of 55 % glucose syrup, 22 % emulsified solid vegetable fat, 18 % skimmed milk powder, 3 % water and 2 % stabiliser (E340).
23. Cough-syrup in the form of an aqueous solution of an alcoholic strength by volume of 1.8 % vol, put up in a container of 100 ml (130 g). The product consists of honey, plant tinctures, glucose syrup, invert sugar syrup, cherry aroma, rose oil, sodium benzoate and purified water. According to the label, the product is recommended to be used against respiratory catarrhal diseases and difficulty of bronchial mucus secretion. The content of active medicinal ingredients is, however, not sufficient to provide a recognisable and clinically proven therapeutic or prophylactic effect.
24. A preparation known as “coconut milk” consisting of coconut flesh extract (57 %) and water (43 %), used for culinary purposes. The product is put up for retail sale in cans.
25. Bakery additive presented in the form of a free-flowing white powder consisting of sorbic acid covered by a very thin layer of hydrogenated vegetable oil and mono-glycerides, manufactured by a process referred to as “microencapsulation”; a controlled release mechanism ensures that the sorbic acid is not released from its encapsulate until after the yeast has finished working, e.g., bread is baked past 60 °C.

It is specifically intended to be used as a preservative by being added in small proportions to long-life bakers’ wares to prevent the growth of mould, yeast and fungi.

26. Bakery additive presented in the form of a free-flowing white powder consisting of calcium propionate covered by a very thin layer of hydrogenated vegetable oil and mono-glycerides, manufactured by a process referred to as “microencapsulation”; a controlled release mechanism ensures that the calcium propionate is not released from its encapsulate until after the yeast has finished working, e.g. ,bread is baked past 60°°C.

It is specifically intended to be used as a preservative by being added in small proportions to long-life bakers’ wares to prevent the growth of mould, yeast and fungi.

Application of GIRs 1 (Note 1 (b) to Chapter 38) and 6.

Adoption : 2011

27. Preparation in the form of a mixture of granules and powder, consisting of 92 % by weight of sugar, 6 % by weight of blackcurrant powder, anti-caking agent, citric acid and blackcurrant flavouring. The product is put up in small sachets containing 32 g which are packed in a small paperboard container holding 10 sachets. It is intended to be consumed as a beverage after mixing with hot water.

Application of GIRs 1 and 6.

Adoption : 2011

28. Tablets containing salt, sugar, concentrate of lemon, black salt, cumin seeds, black pepper, dry ginger, long pepper and ammonium chloride, put up for retail sale in a container holding 120 tablets. The product is used to aid digestion, especially after a meal.

Application of GIRs 1 and 6.

Adoption : 2014

29. Preparation obtained by spray-drying green apple purée to which maltodextrin has been added as a carrier agent in a quantity such that it constitutes 57 % by weight of the final product. It is presented in powder form, is entirely soluble in water and is intended to be added to foodstuffs, e.g., milk powder.

Application of GIRs 1 and 6.

Adoption : 2015

30. Preparation obtained by spray-drying spinach juice to which potassium carbonate (an acidity regulator) and maltodextrin (a carrier agent) have been added. The quantity of maltodextrin constitutes 70 % by weight of the final product. It is presented in powder form, is entirely soluble in water and is intended to be added to foodstuffs, e.g., vegetable soups and sauces.

Application of GIRs 1 and 6.

Adoption : 2015

31. Food preparation in the form of dried powdered alcohol, consisting of ethyl alcohol (30.5 % by weight) and dextrin (69.5 % by weight), and having a moisture content of 2.5 (±1.5) % by weight. It is obtained by spray-drying, and the dextrin is used as a carrier agent (an excipient) for the ethyl alcohol. It is easily soluble in water and is intended to be used in various food preparations.

Application of GIRs 1 and 6.

Adoption : 2016

32. Non-dairy cream in liquid form consisting mainly of water, hardened vegetable oil and sugar, with a creamlike colour, used as decoration and filling for cakes, desserts, mousse, etc., as substitute for whipped cream. It is presented in a 1-litre packaging.

Application of GIRs 1 and 6.

Adoption : 2016

33. Rose hip juice in the form of a brown viscous concentrated liquid, made of 100 % rose hips. The product is obtained by milling the fruits with added water, and subsequent heat treatment and pressing, filtration, pasteurization, concentration and sterilization. It is intended to be used as raw material for the manufacture of beverages and food stuffs.

Application of GIRs 1 and 6.

Adoption : 2016

34. Black mulberry leaves cut into small pieces, produced by steaming, fermentation with fungi, drying and roasting. The leaf pieces are put up in small sachets (tea bags), containing 2 grams. The product is intended to be consumed as a beverage after infusing in hot water.

Application of GIRs 1 and 6.

Adoption : 2017

35. Black mulberry leaves cut into small pieces, produced by steaming, fermentation with fungi, drying and roasting. The leaf pieces are presented in 30 kg bulk containers made of woven fabrics. The product is intended to be consumed as a beverage after infusing in hot water.

Application of GIRs 1 and 6.

Adoption : 2017

36. A product consisting of ethyl esters of highly concentrated omega-3 fatty acids EPA (eicosapentaenoic acid) and DHA (docosahexaenoic acid) produced from raw anchovy oil. Vitamin E (tocopherol) has been added to the product as an antioxidant.

The raw anchovy oil has undergone the manufacturing steps of deacidification, ethyl esterification, distillation, filtration, bleaching and deodorization.

The product is presented in barrels and will be used in the manufacture of food supplements.

Application of GIRs 1 and 6.

See also Opinion 1516.10/1.

Adoption : 2018

37. Preparation in powder form which contains 33.3 % of nicotinamide (niacinamide) finely dispersed in a matrix consisting of a mixture of mono- and diglycerides of edible fatty acids. The matrix masks the characteristic bitter taste

of the nicotinamide without affecting its biological availability. Silicon dioxide is added as a flow agent in a proportion of 1 %. The product is used for food applications and food supplements.

Application of GIRs 1 (Note 1 (f) to Chapter 29) and 6.

Adoption : 2019

38. Aloe vera concentrate, in liquid form consisting of purified aloe vera (whole leaf), purified water, anhydrous citric acid, sodium citrate dihydrate, flavour (lemon juice concentrate), camomile flower powdered extract (4:1), potassium sorbate, sodium benzoate.

It must be diluted with water or other beverages before consumption.

Application of GIR 1 and 6.

Adoption: 2021

39. Preparation in form of free flowing particles (beadlets) which contains 0.25% vitamin D3 in edible fats finely dispersed in a cornstarch-coated matrix of hydrolysed bovine gelatin and sucrose. DL -α-Tocopherol is added as an antioxidant. Silicon dioxide is used as a processing aid.

The product is used for pharmaceutical preparations, dietary supplements and food preparations.

Application of GIRs 1 (Note 1 (f) to Chapter 29) and 6.

Adoption: 2021

40. Preparation in form of free flowing particles (beadlets) which contains 5% vitamin K1 finely dispersed in a matrix of acacia and sugar. The product is used for dry food and pharmaceutical preparations, especially for the fortification of infant formulas.

Application of GIRs 1 (Note 1 (f) to Chapter 29) and 6.

Adoption: 2021

41. Preparation in form of free flowing particles (beadlets) which contains 325,000 IU vitamin A (97,500 μg retinol) per gram. The individual particles contain vitamin A acetate finely dispersed in a cornstarch-coated matrix of acacia and maltodextrin; DL-α- tocopherol is added as an antioxidant. The product is used for food preparations which are reconstituted with liquids.

Application of GIRs 1 (Note 1 (f) to Chapter 29) and 6.

Adoption : 2021

Products considered as food supplements by the WCO as per the Rulings on Subheading 2106.90

1)carbohydrates, guar flour, vitamins, citric acid and colouring matter.

 2)vitamin B1, nicotinic acid, iron (ferrum reductum) and wheat flour;

3)sucrose, mono- and diglycerides and sometimes skimmed milk powder,

4)consisting essentially of sugars, fruit powder, milk powder, calcium phosphate and vitamins.

5)consisting of soya protein concentrate (51 %), a caseinate (47.5 %), soya lecithin (1 %) and vanilla oleoresin (0.5 %).

6. containing calcium carbonate (about 50 %) and casein (about 43 %).
7. highly-concentrated ginseng extract, vegetable oil, antioxidant (lecithin), emulsifying agent (glycerol), beeswax, colouring agent (iron oxides) and tincture of vanilla.
8. consisting of gelatin, a mixture of mono-, di- and tri-, fatty acid esters of glycerol, glucose, sodium citrate and carrageenan
9. consisting of locust bean gum, carrageenan, pectin, gelatin, glucose and soya bean protein
10. consisting mainly of a mixture of mono-, di- and tri-, fatty acid esters of glycerol, malto-dextrin and sodium caseinates
11. consisting of 38.5 % milkfat, 52.4 % water, 5 % sodium caseinate and small quantities of salt, emulsifiers and a thickening or gelling agent,
12. consisting of 51 % refined and hydrogenated coconut oil and 49 % skimmed milk powder,
13. consisting of 70 % butterfat, 15 % refined and hydrogenated coconut oil and 15 % fine sugar
14. consisting of 49 % butteroil, 44 % skimmed milk powder and 7 % coconut oil,
15. made from cheese mixed with white wine, water, starch, kirsch brandy and an emulsifying agent.
16. consisting of around 94 % by weight of sugar (saccharose and dextrose) and flavouring of plant extracts, ascorbic acid or citric acid or both.
17. Mixture of sodium chloride and potassium chloride with a small amount of magnesium carbonate
18. consisting of a mixture of parts of plants, spices, algae and potassium sodium tartrate,
19. consisting of 3 % aloe vera powder (containing 0.11 % aloin) and excipients : calcium hydrogen phosphate, purified talc, magnesium stearate, hypromellose and propylene glycol.
20. consisting of 69 % sugar, 29 % milk powder and 2 % dextrin
21. Vitamin C preparation (500 mg per tablet) put up for retail sale According to the label, the product is not intended to diagnose, treat, cure or prevent any disease.
22. consisting of 55 % glucose syrup, 22 % emulsified solid vegetable fat, 18 % skimmed milk powder, 3 % water and 2 % stabiliser (E340).
23. Cough-syrup ,consists of honey, plant tinctures, glucose syrup, invert sugar syrup, cherry aroma, rose oil, sodium benzoate and purified water.
24. “coconut milk” consisting of coconut flesh extract (57 %) and water (43
25. consisting of sorbic acid covered by a very thin layer of hydrogenated vegetable oil and mono-glycerides,
26. consisting of calcium propionate covered by a very thin layer of hydrogenated vegetable oil and mono-glycerides,
27. consisting of 92 % by weight of sugar, 6 % by weight of blackcurrant powder, anti-caking agent, citric acid and blackcurrant flavouring.
28. Tablets containing salt, sugar, concentrate of lemon, black salt, cumin seeds, black pepper, dry ginger, long pepper and ammonium chloride,
29. spray-drying green apple purée to which maltodextrin has been added as a carrier agent in a quantity such that it constitutes 57 % by weight of the final product.
30. spray-drying spinach juice to which potassium carbonate (an acidity regulator) and maltodextrin (a carrier agent) have been added.
31. consisting of ethyl alcohol (30.5 % by weight) and dextrin (69.5 % by weight),
32. consisting mainly of water, hardened vegetable oil and sugar, with a creamlike colour,
33. Rose hip juice in the form of a brown viscous concentrated liquid, made of 100 % rose hips.
34. Black mulberry leaves cut into small pieces,
35. Black mulberry leaves cut into small pieces
36. consisting of ethyl esters of highly concentrated omega-3 fatty acids EPA (eicosapentaenoic acid) and DHA (docosahexaenoic acid) produced from raw anchovy oil. Vitamin E (tocopherol) has been added to the product as an antioxidant.
37. contains 33.3 % of nicotinamide (niacinamide) finely dispersed in a matrix consisting of a mixture of mono- and diglycerides of edible fatty acids.
38. consisting of purified aloe vera (whole leaf), purified water, anhydrous citric acid, sodium citrate dihydrate, flavour (lemon juice concentrate), camomile flower powdered extract (4:1), potassium sorbate, sodium benzoate.
39. contains 0.25% vitamin D3 in edible fats finely dispersed in a cornstarch-coated matrix of hydrolysed bovine gelatin and sucrose. DL -α-Tocopherol is added as an antioxidant. Silicon dioxide is used as a processing aid.
40. contains 5% vitamin K1 finely dispersed in a matrix of acacia and sugar.
41. contains 325,000 IU vitamin A (97,500 μg retinol) per gram. The individual particles contain vitamin A acetate finely dispersed in a cornstarch-coated matrix of acacia and maltodextrin; DL-α- tocopherol is added as an antioxidant. The product is used for food preparations which are reconstituted with liquids.

Our Observations from the WCO Rulings

The WCO rulings on heading 2106.90 extracted above gives indicators of the kind of products classifiable as food supplements.  There is no mention of micro-organisms or live animals

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Talk to Janron Consult for the following:

Ministry of Health Exemptions

Treasury Exemptions

Advance Ruling Application to KRA

Objection to KRA Rulings on Customs Value

Objections to KRA Rulings on HS Classification