BASF Corporation Files Five Complaints at CIT Challenging Classification of Vitamins, Supplements

Importer BASF Corporation filed five complaints at the Court of International Trade on Oct. 28, challenging CBP's tariff classification of three of its vitamins and supplements. For two of the three substances, BASF is seeking classification under Harmonized Tariff Schedule heading 2936.

In two of the complaints, BASF contests CBP's HTS classification of a certain type of vitamin A. At issue is "vitamin A palmitate enrobed in a protective matrix of gum Arabic and sucrose, with DL-alpha tocopherol as an antioxidant, corn starch as an anti-caking agent and tricalcuium phosphate as a flow aid." CBP liquidated the vitamin A palmitate under subheading 2106.90.9700, which provides for certain food preparations not elsewhere specified in the HTS, dutiable at 28.8 cents/kg plus 8.5%. BASF argues duty-free subheading 2936.21.00 is the proper home for the vitamin.

Two other of BASF's complaints seek the reclassification of its Betatene 7.5% N, which is a beta-carotene cartoneoid mixture dissolved in soybean oil then enrobed in a matrix of gelatin and sucrose. It's a form of provitamin A with a minimum 75 mg beta-carotene per gram. CBP classified the provitamin under subheading 2106.90.9998, which provides food preparations not elsewhere specified in the HTS, dutiable at 6.4%. BASF wants the Betatene classified under subheading 2936.90.01, which covers "Provitamins, unmixed," free of duty.

The fifth of BASF's complaints seeks to reclassify various types of its supplement Omevital, which is an ethyl ester oil extracted from fish. The supplement is made when fish oil is converted from its triglyceride form to an ethyl ester state via "transesterification," where the fish oil is mixed with ethanol and a catalyst, the complaint said. CBP classified the Omevital types under subheading 3824.90.40 or 3824.90.41, which provides for chemical products and preparations of the chemical or allied industries not elsewhere specified in the HTS, dutiable at 4.6%. The proper subheading is 1603.00.90, which classifies “Extracts and juices of meat, fish or crustaceans ... other than clam juice," free of duty, BASF says.

BASF relies on the 2016 CIT decision Jedwards Int’l, Inc. v. United States, which dealt with krill oil classification, to make this claim since it held that classification under heading 3824 was "legally unsustainable because the krill oil was 'elsewhere specified or included' in heading 1603 as an extract."