Chew on That: Defining Food under the Harmonized Tariff Schedule

The study of legal theory is fraught with deep philosophical questions, such as, “What is justice?” However, in the classroom and in practice, these questions are largely unexamined and unanswered. In the summer of 2017, the U.S. Court of International Trade examined and answered the question, “What is food?” under the Harmonized Tariff Schedule of the United States (HTSUS). In Mondelez Global LLC v. United States, Senior Judge Restani found that the “meaning of ‘food’ is that of a substance that is intended to be ingested” even if the substance “itself is not ingested in the classic sense [it] is nonetheless a food if its purpose is to impart flavor or nutrition into a substance that is ingested,” such as tea.[i] In making this determination, the court relied upon Federal Circuit case law, the HTSUS Explanatory Notes, and dictionary definitions of food.

In Mondelez, the court examined the proper HTSUS classification of gum base. Mondelez imported gum base into the United States, which the United States Customs and Border Protection classified as a “food preparation” under HTSUS 2106.90.99.[ii] Mondelez disagreed, contending that gum base was not a food preparation, but instead a “chemical product . . . and preparation. . . of the chemical or allied industries” under 3824.90.92 and sought judicial review.[iii] First, the court determined that “[p]roducts are not classifiable under heading [Food Preparation] . . . merely because they are specifically made for use in food.”[iv] Rather, it required that in order for a product to be classified as a food preparation, it must be a food itself.[v] In so finding, the court then had to determine whether gum base was a food. This required the court to provide a definition for food.[vi]

To define food, the court looked to Franklin v. United States.[vii] In Franklin, the Federal Circuit examined whether coral sand packets, which increased the hardness and alkalinity of drinking water, were properly classifiable as a food.[viii] The court found that the coral salt packets were not food because the product was neither eaten nor “consumed.” Id. at 761. The court distinguished the coral packets from infusions, such as tea, which are defined in HTSUS Explanatory Note 21.06(4) and are considered food preparations, because the packets serve only to purify water. Id.

The court in Mondelez also turned to the HTSUS Explanatory Notes for further guidance.[ix] It analyzed HTSUS Explanatory Note Ch. 21 at IV–2106–1, which stated that a preparation is a food preparation if it is “for human consumption.”[x] The court determined that the use of the term “consume” required ingestion, and did not include “the act of consuming, as by use, decay, or destruction” because such a broad definition was over inclusive and would include clearly non-food substances, such as “toothpaste and cigarettes.”[xi]

Finally, the court rejected inclusion of nutritive value in its definition of food due to administrative concerns.[xii] It determined that inclusion of a nutritive value test in defining food “would increase the cost of resolving tariff disputes due to the laboratory experiments required to determine if a product provides nutrition.”[xiii] This reasoning led the court to conclude that a substance is a food: (1) if a substance is intended to be ingested, or (2) if the substance is not ingested, but its purpose is to impart flavor or nutrition into the substance.[xiv]

Unfortunately, when applying this test to gum base, the determination depended solely on the nutritive analysis the court sought to avoid.[xv] Both parties agreed that gum base was meant neither to be ingested nor to impart flavor.[xvi] This left the court with no choice but to remand for laboratory testing of the gum base’s nutritive ingredients: vegetable oil, calcium carbonate, lecithin, and triacetin.[xvii] Ultimately, the court’s concern that nutritive testing would prove too costly proved prophetic. A month after remand, the government determined not to move forward with discovery, allowing Mondelez’s motion for summary judgment for classification under 3824.90.92 to go unchallenged.[xviii] While a definitive answer to whether gum base is a food is left wanting, we can at least take solace in the having a definitive legal answer to the question, “What is food?”

[i] 253 F. Supp. 3d 1329 (Ct. Int’l Trade 2017), judgment entered, No. 12-00076, 2017 WL 3139335 *4 (Ct. Int’l Trade Aug. 25, 2017).
[ii] Id. at 1.
[iii] Id.
[iv] Id. at 3.
[v] Id.
[vi] Id.
[vii] 289 F.3d 753 (Fed. Cir. 2002).
[viii] Id. at 755–56.
[ix] Mondelez Global LLC, 2017 WL 33139335 at *4.
[x] Id.
[xi] Id. at 4 n.15.
[xii] Id. at 4.
[xiii] Id.
[xiv] Id.
[xv] Id. at 5.
[xvi] Id. at 5.
[xvii] Id. at 5.
[xviii] Mondelez Global LLC, 2017 WL 33139335 at *4.