The Return of Mellorine

The Federal Circuit has affirmed the Court of International Trade decision in Arko Foods Int'l regarding the proper tariff classification of mellorine. As you may recall from this post, mellorine is a dessert product similar to ice cream but made with animal or vegetable fat rather than all or some of the butterfat. Customs and Border Protection classified the mellorine in HTSUS item 2105.00.40 as a dairy product. The importer, seeking to avoid the application of import quotas, argued initially for classification as fruits and nuts (0811) or other edible preparations (2106). The CIT rejected those arguments and addressed where in Heading 2105 the product falls. Eventually, the CIT agreed with the importer that because milk is not the chief or essential ingredient, it does not the preponderant ingredient. That made the mellorine classifiable as 2105.00.50. The United States appealed.

The Federal Circuit decision affirmed the CIT. The government's main argument appears to have been that mellorine is a milk product for purposes of Additional Note 1 to Chapter 4 because the industry treats it as such. Following its down comforter jurisprudence from a called Pillowtex, the Federal Circuit held that the question before it was whether the mellorine has the essential character of milk. As a result, the Court recognized the need for a factual analysis based on "the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods." Based on the CIT's analysis, the Federal Circuit held that milk does not provide the essential character to mellorine. Thus, the correct classification is 2105.00.50, I guess. I say I guess because the Court's decision says 9404.90.90, which is the provision for the comforters from Pillowtex. As Homer would say, D'Oh!



Speaking of mellorine, I am now the owner of an ice cream machine and have been working may way through lots of test runs. So far, my favorites have been rum raisin, white chocolate, and roasted banana. All of which come from The Perfect Scoop by David Lebovitz. My advice to would be Ben's and Gerry's: more fat is better than less fat and egg yolks are awesome. This weekend, I plan to try a batch of green tea. This is a dangerous selection because I am the only person in my house who likes green tea ice cream. Branching out from Lebovitz's book, I have found a recipe for margarita sorbet. Sadly lacking from Lebovitz book is a recipe for mellorine. So, if anyone has a recipe they like, feel free to send it on. I will make a batch in the name of legal research.

Comments

Post a Comment

Popular posts from this blog

CAFC Decision in Double Invoicing Case

The Federal Circuit has issued a decision on the merits in United States v. Inn Foods, Inc.  There had been a previous decision on jurisdiction, which was followed by a trial at the Court of International Trade and then this appeal on the substance. The initial issue is whether Inn Foods' invoicing practice amounts to fraud.  Inn Foods had been receiving an invoice from growers in Mexico that had a relatively low sales prices on it.  Subsequent to entry, Inn Foods created a second invoice at something more similar to market value, retaining the original invoice number, and paid at that higher amount.   Superficially, this looks like a standard-issue double-invoicing scheme.  But, in the age of reconciliation, is it really more like a provisional pricing mechanism?  It might have been possible to make that argument had Inn Foods adjusted its entries accordingly.  It didn't and the loss of revenue was approximately $624,000.  Based on testimony and evidence indicating both knowl
Read more

Target on Finality

Image
In the last post , about the Federal Circuit’s very important decision on due process and allegations of evasion of antidumping duties, I made a snarky, offhand comment that the government believes “liquidation is magic.” That was in the context of the government arguing that Customs’ liquidation of entries mooted an appeal, thereby taking away the importer’s right to further judicial review. I said that knowing full well that I still needed to write this post summarizing Target Corp. v. United States in which Target made what I want to be a valid and righteous argument that Customs’ improper liquidation of entries at a favorable rate of antidumping duty prevents the Court of International Trade from ordering Customs to collect the legally applicable duties. But it turns out that while liquidation is an important legal step, in at least one unusual circumstance it is not sufficiently powerful to overcome the full force of an Article III court. Understanding this case requires a lot
Read more

CAFC: EAPA Process Really Does Violate Due Process

Image
Hot on the heels of my complaining about how the EAPA law and process is stacked against importers, the Court of Appeals for the Federal Circuit has issued an important decision that will have a major impact on how those cases work. If you are unfamiliar with evasion cases under the Enforce and Protect Act and how Customs and Border Protection handles them, go back and look at these two posts: Part 1 , Part 2. Royal Brush Manufacturing, Inc. v. United States , is the decision in an evasion case against Royal Brush involving pencils allegedly transshipped from China through the Philippines. Customs determined that there was evasion of an antidumping duty order based in part on evidence that was not disclosed to Royal. Specifically, Customs sent a representative to the facility in the Philippines to photograph the interior and provide a report. Customs refused to disclose all the photographs to Royal. Moreover, CBP's report concluded that the facility did not have sufficient capacit
Read more