In ruling HQ H313148 (Dec. 9, 2020), Customs and Border Protection (CBP) discussed the classification of pasta and tomato meal kits. Two of the varieties include: “You Make Me Hot | Spicy Arrabbiata Pasta Kit” (“Arrabbiata Pasta Kit”), “You Make Me Fresh | Classic Italian Pasta Kit” (“Classic Italian Pasta Kit”). As stated in the ruling, the pasta kits include fresh greenhouse grown tomatoes, uncooked pasta, spice packet and an herb-infused oil packet. The Arrabbiata Pasta Kit contains approx. 67% tomatoes, 29% pasta, 2% herb-infused oil, and 1% Arrabbiata spices. The Classic Italian Pasta Kit contains approx. 67% tomatoes, 29% pasta, 2% herb-infused oil, and 2% Italian spices. The user will boil the pasta, prepare the tomatoes and spices into a sauce, and combine all the components.
General Rules of Interpretation (‘GRI”) 3 (b) states:
“Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.”
CBP found that the pasta kits meet the criteria for classification as a set, per EN to GRI 3(b). First, the pasta kits consist of components classifiable in different headings: Tomatoes are classified in heading 0702, HTSUS, pasta is classified in heading 1902, HTSUS, the spice packets and oil packets are classified in heading 2103, HTSUS. Second, the pasta kits consist of different foods intended to be used together to prepare a pasta and tomato-based meal. Third, the pasta kits are packaged for retail sale.
CBP stated that the tomatoes impart the essential character to each pasta kit because they comprise the largest portion by weight of each kit. Additionally, the tomatoes constitute the greatest value and bulk of each kit and the pasta kits are packaged in plastic containers and sold in produce sections, which is consistent with how fresh tomatoes are packaged and sold.
CBP determined that the applicable heading for the four pasta kits is 0702, HTSUS, which provides for, “Tomatoes, fresh or chilled.” The 10-digit subheading depends on when the subject pasta kits will enter into the U.S. If entered during the period from March 1 to July 14, inclusive, or the period from September 1 to November 14, inclusive, in any year, will be 0702.00.2010, HTSUS, with a duty of 3.9 cents/kg. If entered during the period from July 15 to August 31, inclusive, in any year, the applicable subheading will be 0702.00.4010, HTSUS, with a duty of 2.8 cents/kg. When entered during the period from November 15, in any year, to the last day of the following February, inclusive, the applicable subheading will be 0702.00.6010, HTSUS, with a duty of 2.8 cents/kg.