Frozen Fruit Mixtures Classifiable as Fruit, Not Food Preparations, Government Argues

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 again in a July 18 brief in support of its May 23 motion to dismiss (see 2205240031) (Nature's Touch Frozen Foods (West). v. U.S., CIT #20-00131). None of the products at issue constitute “food preparations” of heading 2106 as they are not subject to the level of processing that is typical of “food preparations.” Instead, the "all-fruit mixes at issue are classifiable under the eo nomine provision for frozen '[f]ruit' in Heading 0811, [Harmonized Tariff Schedule of the U.S.], pursuant to GRI 1," the brief said.

Nature's Touch argued in its June 27 brief (see 2206280055) that heading 0811 "contains no provision for 'mixtures' of frozen fruits," meaning that the basket subheading of 2106.90.98 is the best fit for the items. "Once an article becomes a ‘mixture’ with something else, it ceases to be covered by [the] provision.”

In its most recent motion, the government argued that different components are classifiable in different provisions, and that determining the appropriate heading requires an essential character analysis rather than classification in an entirely different heading. Finally, the government argued that even if the court finds that the products are properly classified under heading 2106, they still would not qualify for duty-free treatment under NAFTA, because Nature's Touch has not demonstrated that the goods qualify as products of Canada. Nature's Touch cannot show that anything more than "minor processing" such as sorting, and packaging, occurs in Canada, it said.