Importer Says Its Product Is Only Ingredient of Animal Feed Additive
Responding Sept. 22 to the government’s opposition to its motion for judgment, importer Zoetis said that its products were only ingredients of animal feed additives, not additives in themselves (Zoetis Services, v. United States, CIT # 22-00056).
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The importer brought its case in 2022 challenging CBP’s classification of its chlortetracycline concentrate feed grade powder (CTC concentrate). Its product, it says, should have been classified under Harmonized Tariff Schedule heading 2491 as antibiotics, or, alternatively, under heading 3003 as medicaments containing two or more mixed constituents -- not under heading 2309 as preparations for animal feed (see 2404120053), as CBP found. Heading 2309 carries Section 301 tariffs, while headings 3003 and 2491 don’t.
Its products aren’t “preparations of a kind used in animal feeding” because they are only an ingredient of “Type A Medicated Articles,” which are, it said.
It claimed that a “preparation” is the same thing as a “premix” in the context of heading 2309, as, generally, the heading 2309 [explanatory notes] provide” as such. And the parties have agreed that CTC concentrate isn’t a premix, it said.
The government wrongly tried to describe the concentrate as a “‘substance’ or ‘additive’” of a premix, it argued. But heading 2309 is “specifically limited to combined products (i.e., ‘preparations’),” it said, without covering ingredients. The heading also doesn’t cover drugs, which the parties have agreed Zoetis’ products are, it said.
Even if the CTC concentrate is a preparation, it isn’t a premix, the importer then claimed. It said that the government had defined a premix as “a preparation ‘combined’ with a ‘carrier,’” a substance that attaches medications to feed. The concentrate doesn’t contain a carrier, it said.
And the U.S. was wrong to claim Zoetis’ products aren’t “certain preparations for veterinary uses,” which heading 2309’s explanatory notes exclude. The government claimed that the concentrate isn’t usually used by veterinarians, but it doesn’t have to be used by veterinarians to be intended for veterinary use, the importer claimed.
The government also said in its own brief that the CTC concentrate didn’t fall under heading 2941 or 3003 (see 2507030058). Heading 2941 contains an explanatory note explicitly excluding “antibiotic preparations of a kind used in animal feed (e.g. dried and standardized complete mycelium),” it observed, and heading 3003 covers mixtures of two or more medicaments, while Zoetis’ product only contains one.
But the government’s opposition to use of heading 2941 is “premised on a misunderstanding” of the heading’s explanatory notes, the importer said. First, the notes “only direct ‘standardized’ antibiotic preparations to heading 2309,” it claimed; its product isn’t “standardized.”
“The concept of ‘dried and standardized’ preparations being excluded by the 2941 ENs is indicative of some further processing of the antibiotic,” it said.
Further, it said that the government couldn’t show that its CTC concentrate could be fed to animals. In fact, it said, feeding it directly to cattle “would make them sick or kill them,” it said.