Courts Rule on Ice Cream TRQ, Breath Mints
CIT rules unused country-specific quotas for ice cream must be reallocated. In Pillsbury Company v. U.S., the Court of International Trade (CIT) ruled that with respect to the tariff rate quota (TRQ) imposed on ice cream, Customs is required to reallocate to the "common pool" of entries any unused, country-specific quotas.
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According to the CIT, Note 5 to Chapter 21 provides that the aggregate quantity of ice cream entered under the "low duty" subheading of HTS 2105.0010 (20%) in any calendar year shall not exceed 5,191,031 liters. Of this amount, 1,632,759 liters are specifically allocated to five nations and the remaining 3,558,272 liters are a "common pool" which may be used by World Trade Organization (WTO) nations.
In July 1999, Customs began classifying Pillsbury's imported ice cream under the over-quota rate provided for in HTS 2105.00.20 (51.7 cents/kg 17.5%) as the "common pool" quota had been exhausted. Pillsbury contends that any quotas specifically allocated to individual countries that go unused should be reallocated to the "common pool" of quotas.
Through its analysis, the CIT concurs with Pillsbury and finds that the U.S. is obligated to allow 5,191,031 liters of ice cream into the U.S. at the reduced tariff rate regardless of whether the enumerated nations have exhausted their reserved allotments. (Slip Op. 05-51, dated 04/19/05, available at http://www.cit.uscourts.gov/slip_op/Slip_op05/05-51.pdf)
CAFC rules that certain breath mints are for oral or dental hygiene. In Warner-Lambert Company v. U.S., the Court of Appeals for the Federal Circuit (CAFC) reversed the CIT and ruled that imported Certs "Powerful Mints" are properly classified under HTS 3306.90.00 which provides for "other preparations for oral or dental hygiene" (duty-free) rather than under HTS 2106.90.99 as a "other food preparations not elsewhere specified or included" (6.4%).
The CAFC found that the CIT read too much into a Food and Drug Administration (FDA) monograph when it concluded that cosmetic products must reach an antimicrobial result to be considered a preparation for oral or dental hygiene.
The CAFC concluded that the monograph states that the use of odoriferous cosmetic preparations without antimicrobial agents is also a hygienic measure. Moreover, the Explanatory Notes (ENs) to HTS 33.06 do not require antimicrobial agents in preparations for oral or dental hygiene. (CAFC Court No. 04-1489, dated 05/11/05, available at http://www.fedcir.gov/opinions/04-1489.pdf)