CIT Rules Certain Flavorings are Food Preparations and Not Broth

In Aromont USA Inc., v. U.S., the Court of International Trade determined that certain food flavorings (derived from veal, chicken, duck, lamb, beef, fish, lobster, mushroom or vegetable stock), imported from France should not be classified as soups or broths, but instead as unfinished food preparations, principally used as ingredients in gravies, sauces, and salad dressings.

The CIT ruled these flavorings were properly classified in the Harmonized Tariff Schedule under subheading 2106.90.99 at 6.4 percent ad valorem¹ and not under subheadings 2104.10.00/ 9903.02.41 at 3.2 percent plus 100 percent ad valorem² as Customs and Border Protection had classified and liquidated them.

In this case, Customs had classified the flavoring as “broth,” relying on the common dictionary definition of the term as a liquid in which meat, fish, cereal grains, or vegetables have been cooked. The CIT noted that this definition did not capture the essence of the concentrated products at issue, which were of a rich honey like consistency or paste.

In addition, the CIT cited Aromont’s statement of undisputed facts which stated that their stocks were made from simmering bones, whereas broths were made from cooking meat in water. In addition, Aromont’s flavorings were physically different in that they contained much less salt, were more gelatinous, and were not a finished product, whereas broths could be consumed.

Finally, the CIT stated that the proper classification turned on the principal use of subject merchandise. In this case, Aromont products were not principally used as soups or broths and were sold mainly to large ingredient customers, food service distributors, and retail distributors or stores. In further support, the Court noted that a review of the Aromont’s sales reports showed over half of its sales went to one customer who used the flavorings in gravies and sauces in its line of frozen dinners.

¹ All citations to the HTS herein are to the 2001 edition.

² The 100 percent ad valorem rate was pursuant to the authority granted to the U.S. Trade Representative by section 301 of the Tariff Act of 1974, as amended. USTR took this action as part of WTO Beef Hormone Dispute. “Soups and broths and preparations thereof” wereassessed the 100 percent rate if they were products of France or Germany and classified in subheading 2104.10.

(See ITT’s Online Archives or 01/20/09 news, 09012005, for BP Summary of USTR Modification of EU Products/Commodities subject to the100% duty. The 100% duty on soups and broths classified under 2104.10.00 was removed from list of sanctioned products effective on March 23, 2009.)

CIT Slip Op 10-90 (dated 08/12/10)