Gluten-Free Soybean Pasta Classifiable as Pasta of Heading 1902, CBP Says

Gluten-free pastas made from soybean flour are classifiable in the tariff schedule as pasta of heading 1902, rather than as soybean preparations of heading 2008, said CBP in a recent ruling. Instructing the port to grant the importer’s protest, CBP headquarters ruled that pasta describes food that has undergone a particular manufacturing process, and is not limited to a specific kind of flour.

The ruling is HQ H316296, dated Aug. 3 and added to CBP’s CROSS database on Oct. 4. Ethical Brands had entered the soybean flour pasta under subheading 1902.19.2090 as uncooked, non-egg pasta not from a European Union country. CBP, after issuing a request for information to the importer inquiring about the composition of the pasta, liquidated it under subheading 2008.99.61 as a soybean preparation. Ethical Brands protested, then requested further review.

The pasta at issue is made almost entirely of soybeans, either in the form of black soybeans or edamame, processed into dough then made into pasta by extruding, drying, cooling and cutting. Some of the pastas also contain small amounts of spirulina or sesame seed flour.

The explanatory note to heading 1902 says pastas in that heading are “unfermented products made from semolinas or flours of wheat, maize, rice, potatoes, etc.,” mixed with water, kneaded into a dough that may incorporate other ingredients, then “formed (e.g. by extrusion and cutting, by rolling and cutting, by pressing, by moulding or by agglomeration in rotating drums) into specific predetermined shapes.”

While soybeans are not specifically named in the explanatory note, the term “etc.” is “a general term following a list of exemplars which implicates the rule of ejusdem generis,” or the principle that the list includes other items of the same kind, CBP said.

According to CBP, that means pastas of heading 1902 “may be derived from a variety of vegetable matter or grains.” But regardless of what kind of vegetable or grain is used, it must be first processed into flour. “Although pasta is traditionally produced using flours of wheat, maize, rice, and/or potatoes, this does not mean that any ‘pastas’ made from non-traditional flours are automatically excluded from classification therein,” CBP said.

“In the contemporary understanding is the recognition that various foodstuffs may be made by either traditional or non-traditional ingredients to conform to the ever-changing desires and/or needs of the modern consumer. One such modification has been the culinary emergence and popularity of gluten-free products, marketed as a healthier alternative to traditional products and to those with dietary restrictions pertaining to gluten. As such, while flour derived from soybeans may not explicitly be listed within the ENs to heading 1902, an understanding of ejusdem generis dictates that soybean flour would be of the same kind as the wheat, maize, rice, and/or potato flour enumerated within the EN if virtually identically processing produces an ultimate product which is popularly understood, identified, and used as ‘pasta,’” CBP said.

As the pastas imported by Ethical Brands are manufactured in the same way as traditional pasta, and share the same physical characteristics and uses, they are classifiable as pastas under heading 1902, CBP said.