Food Supplement Exporter Says Products Are 'General Use,' Don't Contain Unneeded Additives
Food supplement exporter BASF filed March 17 in opposition to the U.S.’s cross-motion for judgment in its case. It disagreed with the government’s claim that its products didn’t fit the requirements of BASF’s preferred Harmonized Tariff Schedule heading (BASF Corporation v. United States, CIT Consol. # 12-00422).
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BASF brought its case back in 2012, saying its product, Betatene, was wrongly classified by CBP as a food preparation “not elsewhere specific or included” under HTS heading 2106 rather than as a “general-use ‘provitamin’” under heading 2936. The U.S. supported CBP’s determination in a January cross-motion for judgment, arguing that the Betatene contained more additives than needed for stable transportation or preservation and that it was more suited for “specific” rather than “general” use -- two requirements set out in chapter 29’s Explanatory Notes (see 2501150089).
Betatene is formulated from beta-carotene, which is “a naturally occurring form of provitamin A that gives carrots and pumpkins their distinctive orange color,” the U.S. explained in its brief.
Despite what the U.S. argued, Betatene doesn’t actually contain more additives than necessary, BASF said in its March 17 filing; it claimed the product is made only with enough gelatin and sucrose to “stabilize the approximate 7.5 percent beta-carotene in Betatene.”
It also disagreed that the supplement is “particularly suitable for dietary supplements,” preventing it from being classified as a “general-use ‘provitamin.’”
It cited the U.S. Court of Appeals for the Federal Circuit case Roche Vitamins. In that case, CAFC held that the product “BetaTab,” which was “marketed for use in vitamin tablets,” was meant for general use as “a source of provitamin A,” it said.
CAFC reached that conclusion after determining that BetaTab had stabilizing ingredients that “were essentially the same as those used with other vitamins and betacarotene formulations used for coloration,” didn’t have any ingredients added specifically for tableting and could serve as “a source of vitamin A in foods, beverages, and vitamin products,” it said.
All of these were also true of Betatene, it claimed.
As a result of the cross-motion, “the defendant has now agreed to the applicable facts allowing this Court to hold in BASF’s favor,” the exporter argued. It said both parties agreed that, first, Betatene is made of “an isomeric mixture of beta-carotene and alpha-carotene with permissible impurities in a solvent”; second, that Betatene contains soybean oil to help with digestion; and, third, that Betatene has an “added stabilizer” needed for its “preservation or transport.’
“The agreed-to facts demonstrate how the plain meaning of Heading 2936 and Chapter 29, Note 1, including Note 1(f), are satisfied,” it said.