Beta-Carotene Product Meant for 'Specific' Use as Dietary Supplement, US Says
Disagreeing with exporter BASF, the U.S. argued April 7 that the exporter’s beta-carotene product Betatene had been properly classified under the Harmonized Tariff Schedule because it was used as a specific -- not general -- food additive, and its additives were used for more than just stable transportation or preservation (BASF Corporation v. United States, CIT Consol. # 12-00422).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Use as a dietary supplement is a “specific” use, the U.S. argued.
Beta-carotene, “an organic colorant and a source of provitamin A activity,” is used as a food dye and in dietary supplements, the U.S. said. BASF wants Betatene classified under HTS heading 2936 as a “general-use provitamin,” while CBP classified it under heading 2106 as a food preparation “not elsewhere specific or included.” To be categorized under chapter 29, Betatene’s gelatin and sucrose additives must be “necessary” for “preservation and transport” and the product must not be suitable for “specific” use.
BASF argued in response to the U.S.’s cross-motion for judgment that its product meets both conditions (see 2503180023). In particular, it said that just because Betatene was “particularly suitable for dietary supplements” didn’t mean it wasn’t a “general-use ‘provitamin.’” It cited the U.S. Court of Appeals for the Federal Circuit case Roche Vitamins, which held that another supplement, “BetaTab,” was meant for general use as “a source of provitamin A.”
The U.S. disagreed, saying Betatene was a specific-use food additive meant only for application as a dietary supplement. BASF hasn’t provided any evidence that would show otherwise, it said.
“BASF has never heard of its Betatene 7.5% N ('Betatene') formulation being used as a colorant or as anything other than a dietary supplement,” it said. "That is not surprising. BASF tests and markets Betatene solely for that use, and Betatene’s oily gelatin-sucrose beadlets in fact make the product unsuitable (albeit not physically impossible) to be used otherwise.”
Further, it said, the exporter’s “speculation that some commercially illiterate manufacturer somewhere might use Betatene as something other than a dietary-supplement ingredient” wasn’t enough to demonstrate the product is meant as a general-use provitamin, it said.
It also accused BASF of relying on “testimony of ‘Roche Vitamins’ witness’” offered in the CAFC case, arguing that the exporter hadn’t cited any authority showing it could rely on “a third party’s testimony in a different case.”
The government also argued again that Betatene contains more gelatin and sucrose than needed to preserve or transport the formulation. It said the exporter “does not dispute” that other beta-carotene products that contain more beta-carotene, and less gelatin and sucrose, are safely preserved and transported.
BASF argued that it had used “no more ingredients than necessary” to keep down costs, but that meant the exporter had “‘optimized’ beta-carotene for a particular ‘commercial application’” -- cost-cutting -- rather than using gelatin and sucrose only as much as necessary to preserve the product, it said.
“Accepting BASF’s argument would mean that any beta-carotene formulation -- regardless of the quantities of beta-carotene, gelatin, and sucrose -- would contain no more than necessary for preservation, so long as the manufacturer promises that it is cost-conscious,” it said.