Suitability for Human Consumption Not Necessary for Cheese Product Classification, CBP Rules

Imported enzyme-modified cheese (EMC) does not need to be "suitable for consumption in order to be classifiable as a cheese product under heading 0406," CBP said in a Sept. 12 ruling. Schreiber Foods asked CBP to reconsider a previous ruling that said the EMC could be classified in subheading 0406.30 as, “Cheese and curd, Processed (process) cheese, not grated or powdered.” The finished EMCs are used as "ingredients in other food products to adjust fat content and provide cheese flavor," CBP said.

Schreiber Foods argued that the EMC “is not in any manner a suitable aroma or flavor to be eaten by any consumer in the current state” and therefore not classifiable in heading 0406. While a previous CBP ruling found that an EMC ingredient was better classified as a fat-based ingredient product in 0405, the EMC at issue has some notable differences, the agency said. "The fact that the subject product starts with ground cheeses, confirms that fermentation, acidic activity, whey separation and curd formation must have taken place prior to the enzyme modification process. In short, the EMC product originates from cheese," CBP said. "The subsequent heating, flavor development and enzyme activation does not negate the product’s fundamental nature as being a cheese product. Instead, the subsequent enzyme modification process only distinguishes the subject EMC as a cheese product that has been further processed into a processed cheese product."

The 0406 heading doesn't require that the product be suitable for eating, CBP said. For example, CBP previously ruled that a product "described as 'cheese scrap', which was not suitable for human consumption, was nevertheless classifiable as cheese in heading 0406." The enzyme modification process is also similar to the one described in the explanatory notes to heading 0406, it said. "The processing of the slurry is done 'with the aid of heat and emulsifying agents,'" the agency said. "Each step in the manufacturing process along with the presence of ground cheese as a core ingredient, place this product squarely within the terms of heading 0406."