The subject merchandise consists of five varieties of fruit-based snack foods branded “Slammers” — Awesome Acai Strawberry Apple, Epic Orange Mango, Yumberry Banana Blueberry, Pomegranate Grape Crush, and Watermelon Kiwi Crush. Each variety is made of various fruit and vegetable purees, juice concentrates, and other ingredients. The products are manufactured in Canada through a process of blending, homogenization, and pasteurization.
All five products are overwhelmingly fruit-based. The primary ingredients (by weight) are organic apple puree and organic banana puree. Secondary ingredients — each present in amounts of 10% or less by weight — include various fruit purees (blueberry, strawberry, acai, mango), vegetable purees (beet, carrot, butternut squash), juice concentrates (lemon, grape, pomegranate, watermelon), and supplemental ingredients (amaranth flour, whey protein isolate, wellmune beta glucan, natural flavors).
The products are hot-filled into 90-gram laminated PET/AL/PE pouches, sealed with a plastic twist-off lid, cooled, and packed four to a box for retail sale. They are marketed as “superfood snacks” for children — but critically, the marketing is directed at school-age children, teenagers, and all ages, not infants or young children (0–24 months).
The applicant classified the products under heading 21.04 as homogenized composite food preparations. CBP determined this classification was incorrect.
COMPETING HEADINGS
Heading 21.04 — “Soups and broths and preparations therefor; homogenised composite food preparations.”
Claim (Applicant’s position): The products are finely homogenized mixtures of two or more basic fruit and vegetable ingredients, packaged in 90-gram pouches (under 250g), and marketed for retail sale as food for children. They should therefore classify as “homogenised composite food preparations” under subheading 2104.20.
Legal Note support: Note 3 to Chapter 21 defines “homogenised composite food preparations” for the purposes of heading 21.04 as: “preparations consisting of a finely homogenised mixture of two or more basic ingredients such as meat, fish, vegetables, fruit or nuts, put up for retail sale as food suitable for infants or young children or for dietetic purposes, in containers of a net weight content not exceeding 250 g.”
EN support: EN 21.04(B) states that homogenised composite food preparations “are generally used as food suitable for infants or young children and take the form of a smooth paste, of varying consistency, suitable for consumption either directly or after re-heating. They are usually put up in airtight jars or cans in a quantity generally corresponding to one whole meal.”
Heading 20.08 — “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.”
Claim (CBP’s position): The products are fruit preparations made overwhelmingly with fruit puree. They are homogenized preparations of fruit — but they are NOT homogenised composite food preparations of heading 21.04 because they fail the three-part cumulative test in Note 3 to Chapter 21. Since heading 21.04 does not apply, the products fall into heading 20.08 as fruit otherwise prepared or preserved.
EN support: EN 20.08 covers “fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter.” The EN further confirms: “Other substances (e.g., starch) may be added to the products of this heading, provided that they do not alter the essential character of fruit, nuts or other edible parts of plants.” The General EN to Chapter 20 confirms the chapter covers “homogenised prepared or preserved vegetables and fruit.”
THE CONFLICT
Both headings have a plausible textual claim. Heading 21.04 covers homogenized composite food preparations — and the Slammers are undeniably finely homogenized fruit/vegetable mixtures in small pouches. Heading 20.08 covers fruit otherwise prepared or preserved — and the Slammers are undeniably fruit preparations.
However, this is not a GIR 3 multi-heading competition. The conflict is resolved entirely under GIR 1 through the operation of Note 3 to Chapter 21, which functions as a binding three-part cumulative test — a legal gate that must be fully satisfied before heading 21.04 can apply.
The gate-keeping mechanism works in both directions:
- Note 3 to Chapter 21 sets the affirmative test for heading 21.04 — all three criteria must be met
- Note 1(e) to Chapter 20 excludes “homogenised composite food preparations of heading 21.04” from Chapter 20 — but only goods that actually qualify under heading 21.04 are excluded
If the product fails Note 3’s three-part test, it does not qualify for heading 21.04, and Note 1(e) to Chapter 20 does not exclude it from Chapter 20. The product then falls into heading 20.08 as a fruit preparation.
The determinative question is whether the Slammers satisfy all three cumulative requirements of Note 3 to Chapter 21.
ANALYSIS & RESOLUTION
Step 1: GIR 1 — Note 3 to Chapter 21: The Three-Part Cumulative Test
Note 3 to Chapter 21 defines “homogenised composite food preparations” for the purposes of heading 21.04 as preparations meeting three simultaneous requirements:
(1) A finely homogenised mixture of two or more basic ingredients such as meat, fish, vegetables, fruit or nuts.
Test: The Slammers are finely homogenized mixtures of multiple fruit and vegetable purees — apple, banana, mango, blueberry, beet, carrot, etc. They undergo blending, homogenization, and pasteurization in Canada.
Result: ✅ Criterion 1 is satisfied.
(2) Put up for retail sale as food suitable for infants or young children or for dietetic purposes.
Test: This is where the classification turns. The terms “infants” and “young children” are not defined in the HTSUS tariff text or the Harmonized System ENs for purposes of Chapter 21. CBP has consistently defined these terms by cross-referencing Note 6(a) to Chapter 61 (apparel classification), which states: “the expression ‘babies’ garments and clothing accessories’ means articles for young children of a body height not exceeding 86 centimetres.” CBP has interpreted this as equivalent to children aged 0–24 months.
CBP has applied this apparel-derived definition to food products as well — in HQ W967962, CBP classified Cerelac (wheat cereal with milk) as a preparation for infants by using the same definition.
Application to the Slammers:
The Slammers are not put up for retail sale as food suitable for infants or young children (0–24 months):
- The manufacturer’s website features photos of older children and teenagers — none from the 0–24 month age range
- Marketing language specifically states the products are “appealing to kids beyond the preschool years”
- A testimonial on the website describes a mother giving Slammers to her 12-year-old daughter and 8-year-old son for sports activities
- The same testimonial states: “When my kids were little, they loved applesauce pouches, so Slammers was an easy sell to them” — distinguishing the Slammers from infant-stage food
- The website states the products are appropriate for people of all ages
- The brand name “Baby Gourmet” refers to the parent company, not the target age demographic of this product line
The Slammers are also not put up for retail sale as food suitable for dietetic purposes. There is nothing in the product labeling, marketing, or formulation that demonstrates the products are intended for or suitable for dietetic use.
Result: ❌ Criterion 2 is NOT satisfied. The Slammers are marketed and put up for retail sale as superfood snacks for school-age children and general consumers, not for infants, young children (0–24 months), or dietetic purposes.
(3) In containers of a net weight content not exceeding 250 g.
Test: The Slammers are packaged in 90-gram laminated pouches — well under the 250g threshold.
Result: ✅ Criterion 3 is satisfied.
Step 2: Note 3 Fails — The Gate Does Not Open
The Slammers satisfy criteria 1 and 3 but fail criterion 2. Note 3 to Chapter 21 is a cumulative test — all three criteria must be met simultaneously. Failure of any single criterion means the product does not qualify as a “homogenised composite food preparation” for the purposes of heading 21.04.
Result: Heading 21.04 is eliminated. The Slammers cannot be classified as homogenised composite food preparations.
Step 3: GIR 1 — Heading 20.08 Captures the Product
With heading 21.04 eliminated, Note 1(e) to Chapter 20 — which excludes “homogenised composite food preparations of heading 21.04” from Chapter 20 — does not activate. The Slammers are not goods of heading 21.04, so they are not excluded from Chapter 20.
Heading 20.08 covers: “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.”
The Slammers are:
- Fruit preparations — made overwhelmingly of fruit purees (apple, banana, mango, blueberry, strawberry, acai, etc.)
- Otherwise prepared — blended, homogenized, and pasteurized
- Not elsewhere specified or included — heading 21.04 has been eliminated; heading 20.07 (jams, purées obtained by cooking) does not apply as these are not cooked purées in the EN 20.07 sense
EN 20.08 confirms the products belong here: “Other substances (e.g., starch) may be added to the products of this heading, provided that they do not alter the essential character of fruit.” The non-fruit ingredients in the Slammers (amaranth flour, whey protein, beta glucan, vegetable purees) are each present in quantities of less than 10% by weight and do not alter the essential character of the fruit purees.
The General EN to Chapter 20 confirms that the chapter covers “homogenised prepared or preserved vegetables and fruit” — a product can be homogenized and still fall in Chapter 20 if it does not meet the Note 3 requirements for heading 21.04.
Result: The Slammers are classified under heading 20.08, specifically subheading 2008.97 (mixtures).
Final Classification
2008.97 — Fruit, nuts and other edible parts of plants, otherwise prepared or preserved: Other, including mixtures other than those of subheading 2008.19: Mixtures.
Resolved by GIR 1 (Note 3 to Chapter 21 — three-part cumulative test fails at criterion 2; Note 1(e) to Chapter 20 does not exclude; heading 20.08 describes the product directly).
Real-world authority: CBP Headquarters Ruling HQ H314968 (March 15, 2021) — Slammers Fruit Snack Pouches → 2008.97.10 / 2008.97.90, HTSUS.
KEY CLASSIFICATION PRINCIPLES
- Note 3 to Chapter 21 is a binding three-part cumulative test — failure of any single criterion eliminates heading 21.04. A product must simultaneously be: (1) a finely homogenized mixture of two or more basic ingredients, (2) put up for retail sale as food suitable for infants or young children or for dietetic purposes, AND (3) in containers not exceeding 250g. Meeting two out of three is insufficient. The Note functions as a legal gate: it either opens (all three met) or stays closed (any one failed).
- “Infants or young children” in Note 3 to Chapter 21 means children aged 0–24 months. CBP derives this definition from Note 6(a) to Chapter 61 (body height not exceeding 86 cm = 0–24 months) and has applied it consistently to food products (HQ W967962). Marketing to school-age children, teenagers, or “all ages” does not satisfy this criterion — even if the product is physically suitable for consumption by young children.
- “Put up for retail sale as” is a marketing and presentation test, not a physical suitability test. The question is not whether a young child could physically eat the product, but whether the product is put up for retail sale as food suitable for that demographic. Marketing materials, product labeling, website imagery, target audience descriptions, and testimonials are all relevant evidence. A product marketed to 8–12 year olds and “all ages” fails this criterion regardless of its physical form.
- Homogenization does not automatically route a fruit preparation to heading 21.04. A product can be finely homogenized and still classify in Chapter 20. The General EN to Chapter 20 explicitly includes “homogenised prepared or preserved vegetables and fruit.” Homogenization is a processing method described in both Chapter 20 and heading 21.04 — the distinguishing factor is whether Note 3’s three-part test is fully satisfied, not the physical form of the product.
- Note 1(e) to Chapter 20 and Note 3 to Chapter 21 operate as interlocking gates. Note 1(e) to Chapter 20 excludes “homogenised composite food preparations of heading 21.04” from Chapter 20. But this exclusion only activates for products that actually meet Note 3’s definition. If Note 3 is not satisfied, the product is not “of heading 21.04,” and Note 1(e) does not exclude it from Chapter 20. The two Notes are read together as a closed logical system.
Fruit Snack Pouch: The Homogenized Product That Fails the Baby Food Gate
| Heading | Why It Is Considered | Reason for Rejection / Acceptance |
| Heading 21.04, sub. 2104.20 (Homogenised composite food preparations) | Product is a finely homogenized mixture of fruit and vegetable purees in 90g pouches (under 250g); meets criterion 1 (homogenized mixture) and criterion 3 (container size) of Note 3 to Chapter 21 | ❌ Rejected — fails criterion 2 of Note 3: product is NOT put up for retail sale as food suitable for infants or young children (0–24 months) or for dietetic purposes; marketed to school-age children, teenagers, and “all ages” with no infant/dietetic targeting; Note 3 is cumulative — failure of one criterion eliminates heading 21.04 |
| Heading 20.07 (Jams, fruit purées, fruit pastes obtained by cooking) | Product consists of fruit purees that have been processed (blended, homogenized, pasteurized); could be considered a fruit purée | ❌ Not applicable — heading 20.07 covers purées and pastes “obtained by cooking” to increase viscosity; the Slammers are blended and pasteurized, not cooked in the EN 20.07 sense; the process is homogenization, not viscosity-increasing cooking |
| Heading 20.08, sub. 2008.97 (Fruit otherwise prepared or preserved — mixtures) | Products are fruit preparations made overwhelmingly of fruit puree (apple, banana, mango, etc.); otherwise prepared by blending, homogenization, and pasteurization; not elsewhere specified or included | ✅ Classified here via GIR 1 — heading 21.04 eliminated by Note 3 failure; Note 1(e) to Chapter 20 does not exclude the product since it is not “of heading 21.04”; EN 20.08 confirms non-fruit ingredients under 10% do not alter the essential character of the fruit; General EN to Ch. 20 covers “homogenised prepared or preserved fruit” |
| Key gate mechanism | Note 1(e) to Chapter 20 excludes “homogenised composite food preparations of heading 21.04” — could this block classification in Chapter 20? | ⚠️ Gate does NOT activate — Note 1(e) only excludes products that actually qualify under heading 21.04 per Note 3’s three-part test; since the Slammers fail criterion 2, they are not “of heading 21.04” and Note 1(e) does not apply; the two Notes operate as interlocking logical gates |
CONCLUSION
This is a two-heading competition resolved entirely under GIR 1 through a Chapter Note cumulative test. No GIR 3 analysis is required. The difficulty lies in the interpretation of the undefined term “young children” (requiring cross-referencing to Chapter 61 apparel notes), the factual assessment of marketing and presentation evidence, and the interlocking gate relationship between Note 3 to Chapter 21 and Note 1(e) to Chapter 20.