Importer's Medicative Animal Feed Falls Under HTS Heading 2309, Not 2941 or 3003, US Says in Brief

It explained in its brief that, in the 1940s, farmers discovered that adding antibiotics to their animals’ feed resulted in larger, more profitable cuts of meat. The mechanisms for this aren’t entirely clear, they said, though there are several theories.

The FDA bans or discourages adding a number of different types of antibiotics to animal feed out of concern that the targeted bacteria will develop immunity to the antibiotics and go on to infect humans. However, producers can get permission to use medicated animal feed from certain licensed veterinarians -- as Zoetis did for its “feed-grade chlortetracycline concentrate,” imported from China, the imports at issue.

This medicated feed is different from injectable antibiotics for animals, it said. Usually, injectable antibiotics are imported under Harmonized Tariff Schedule heading 2941, for antibiotics, whereas medicative animal feed additives are imported under heading 2309, for “preparations of a kind used in animal feeding.”

Zoetis is wrong to argue that its products should have been classified under heading 2941, it said.

First, Zoetis’ imports are undisputedly “preparations” used in animal feed, it said.

Further, Explanatory Note 23.09 provides that heading 2309 covers “additives,” listing a number of examples that include antibiotic additives. On its own, this “obviat[es] the need for further analysis,” it said, as the note’s depiction of the antibiotic production process matches that for Zoetis’ own products. Zoetis’ products have “an antibiotic content just above the general range set forth in the explanatory note,” it said.

But the Carborundum factors also support classification under heading 2309, it claimed. The physical characteristics of Zoetis’ feed are “essentially identical” to the description of antibiotic feed additives provided in EN 23.09, it said. The ultimate purchasers of the product are livestock producers who expect to use it as a medical additive for the health of their animals, and it moves through the same channel of trade as feed additives -- and a different channel than injectable antibiotics.

The same is true for the products’ environment of sale and manner of use, it said; Zoetis’ additives are sold and used in an identical manner to other feed additives, not to injectable antibiotics. And Zoetis’ products are economically practical as feed additives and recognized by the trade as such in publications released “by the U.S. Department of Agriculture and the Association of American Feed Control Officials, among others.”

The government disagreed that EN 1 to Chapter 23, which Zoetis claimed requires imports categorized in Chapter 23 first not be classifiable under any other chapter, prevents Zoetis’ imports from being classified under heading 2309. The note specifies that Chapter 23 “includes products of a kind used in animal feeding, not elsewhere specified or included.” But doesn’t explicitly limit the chapter to only products not classifiable anywhere else, it said, as the “word ‘includes,’ when used in a statute, ‘is usually a term of enlargement, and not of limitation.’”

And it denied that Zoetis’ feed could be classified under headings 2941 or 3003. The latter heading only covers mixtures of two or more medicaments, whereas Zoetis’ product is only composed of the medicament chlortetracycline concentrate, it said. And the former is prevented by Explanatory Note 29.41, which explicitly states that “‘[a]ntibiotic preparations of a kind used in animal feeding (e.g. dried and standardised complete mycelium)’ are not covered by heading 2941’s description.”