CIT Overrules CBP Classification of Tapenade, Antipasto

Imported artichoke antipasto and green olive tapenade meet the classification requirements of "sauces," the Court of International Trade said in an Aug. 16 decision that went against CBP. The suit involved supermarket brands of the antipasto and tapenade imported by Mondiv. The company challenged a 2015 CBP ruling that said the products don't meet the requirements for a sauce (see 1511300011).

Originally imported in 2013, both products were classified under heading 2005, which covers "other vegetables prepared or preserved." Mondiv later sought to change the classifications to heading 2103, which covers "sauces and preparations therefor," but CBP affirmed the original classification and said the goods were not eligible for NAFTA benefits.

CIT said the products meet the classification requirements for both 2005 and 2103. The court said "the undisputed facts establish that the artichoke antipasto and green olive tapenade are chunky mixtures of ingredients with discernable pieces of vegetables." Unlike CBP's ruling, the CIT decision said "that 'chunky' mixtures are semisolid in form, rather than liquid or solid," which meets the "semisolid" requirement of heading 2103. Also undisputed is that the products add flavoring to food as required in heading 2103, CIT said.

Although the items are classifiable in either heading, "under the rule of relative specificity, the court looks to the heading which is more difficult to satisfy and that describes the article with the greatest degree of accuracy and certainty," CIT said. "The requirements of the sauce provision are more difficult to satisfy because preparing a sauce involves some degree of processing or adding ingredients." As a result, the antipasto and tapenade are both classifiable in heading 2103. That classification also means that NAFTA duty-free treatment applies because the goods then meet the tariff-shift requirement, CIT said.