Frozen Fruit Mixtures Classifiable as Fruit, Not Food Preparations, DOJ Says

Mixes of frozen fruits should be classified under heading 0811 as "fruit and nuts," rather than under heading 2106 as "food preparations," the government said in a cross-motion for summary judgement filed with the Court of International Trade on May 23 (Nature's Touch Frozen Foods (West) Inc. v. United States, CIT #20-00131).

The case concerns mixtures of frozen fruit from Canada, imported by Nature's Touch between June and November 2018. CBP initially classified and liquidated the items under various subheadings of 0811, which covers "Fruit and nuts, uncooked or cooked by steaming or boiling in water, frozen, whether or not containing added sugar or other sweetening matter," and collected duties at rates of 3.4% (bananas), 10.9% (mangoes) and 14.5% (other fruits). Nature's Touch filed a protest in 2019 seeking reclassification under subheading 2106.90.98, which would make the items duty-free under USMCA. When CBP denied the protest in July 2020, Nature's Touch filed suit at CIT.

Nature's Touch filed its own motion for summary judgment on April 18 (see 2204190052), arguing that because the tariff schedule includes specific subheadings for mixtures of fruit, but not for frozen fruit, mixed frozen fruit is more specifically described in heading 2106 as food preparations not elsewhere specified.

In its May 23 motion, the government said that the items at issue can be classified under GR 1 and that Nature's Touch's argument "contradicts the broad, plain language of [heading 0811]." The government also argued that "none of the products constitute preparations," and that it's "well-established" that headings, such as 0811, which provide for products by name, “include all forms of the named article, even improved forms." The brief cited the explanatory notes to heading 0811, which reflect no limitation on the term “fruit.” The government argued that none of the processing steps described by plaintiff (cleaning, cutting, removing inedible portions, and freezing, removes the fruit mixes from the eo nomine provision for frozen fruit in heading 0811.

"Even after the products at issue are combined in specific proportions that are pleasing to consumers, or that make the raw fruit ingredients suitable for different uses, such as use in a smoothie or a baked good ... the fruit mixes still do not possess features 'substantially in excess of' fruit," as the government says is required by court precedent.