In ruling NY N315542 (November 24, 2020), Customs and Border Protection (CBP) determined the classification of frozen nondairy dessert items, described as vegan gelato. The three flavors include, hazelnut, strawberry, and gianduja. Notably, the dessert items do not contain milk.

As explained in the ruling, in order for “ice cream” to be labeled and sold as such in the U.S., it must conform to the “standard of identity” set out by FDA regulations in 21 C.F.R. § 135.110. Specifically, 21 C.F.R. § 135.110(a) provides a detailed description of the characteristics of ice cream and frozen custard. It identifies “ice cream” as articles of frozen desserts that consist of specific ratios of milk fat and nonfat milk solids. CBP noted that since the goods at issue do not contain milk, it does not yield the required milk fat and nonfat milk solids content for tariff classification purposes.

CBP determined that the applicable subheading for the various flavors of Frozen Nondairy Desserts (vegan gelato) will be 2105.00.5000, HTSUS, which provides for: “Ice cream and other edible ice, whether or not containing cocoa: Other: Other.”  The rate of duty is 17% ad valorem.