“26. It is settled case law that, in the interests of legal certainty and for ease of verification, the decisive criterion for the classification of goods for customs purposes is in general sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN. There are also explanatory notes drawn up, as regards the CN, by the Commission and, as regard the harmonised Commodity Description and Coding System, by the Customs Cooperation Council, which may be an important aid to the interpretation of the scope of the various tariff headings, but do not have legally binding force (see, in particular, Case C- 201/96 LTM V FIRS [1997]ECR 1- 6147, paragraph 17) 27. It is therefore necessary to examine whether the products at issue in the main proceedings exhibit the objective characteristics and properties defined under CN heading 30.04, which, as the Court held in paragraph 13 of the judgment in Bioforce , cited above, must be interpreted in the light of medical developments. 28. In that regard, as the documents before the Court show, it is undisputed that the vitamin C content of the products in question is much greater than what is necessary or recommended for general dietary purposes. Furthermore, besides assisting the immune system in the human organism to resist infection in cases of, inter alia, asthenia or severe strain, such doses of vitamin C, which the human body is incapable of making for itself, are also recommended as treatment for allergic reactions and severe traumatisms, of the kind which might result from an injury or a surgical operation, or to combat deficiency-related illnesses, such as scurvy or Moeller-Barlow disease.” 11. In Unigreg Ltd v Customs and Excise Commissioners (1998, unreported), a decision of Moses J, the importer sought to have its products classified under heading 30.04 while the Commissioners advanced heading 21.06. The product was licensed to be sold only through registered pharmacies. It was held out as being effective in the correction of vitamin and mineral deficiencies, particularly for those suffering from dietary insufficiency and its Medicine Act licence permitted it to be sold for the treatment of such conditions. The Tribunal found that the product had the capacity to alleviate such conditions, but it nevertheless found that it was a food supplement, and not a pharmaceutical product within heading 30.04. In the course of his judgment on the appeal, Moses J said i. “2… The fact that a product has broad spectrum of prophylactic or preventative functions does not disqualify it from being classified under heading 30.04. That proposition is not in dispute, but it is a proposition which must be based on a finding that the product does have specific effects, even though they may be a number of specific effects. The difficulty in this case is that on the findings of the Tribunal this product had no specific effect at all. It has not been shown to have an effect or even effects concentrated on precise functions of the human organism. ii. … I accept that the mere fact that vitamins play a part in providing nutrition does not prevent vitamins and minerals from classification as a medicament. The HSEN to 30.04, which I have cited, demonstrates that a product may be a food supplement containing or even consisting of minerals and vitamins, which promote general health and well-being and within 30.04, provided always that they have an indication as to the use for the prevention of any disease or aliment. The difficulty which Unigreg faces is that on the evidence before the Tribunal there was, in the words of the HSEN, no indication as to the use for the prevention or treatment of any specific disease or ailment at all. iii. …this product is not classified as a medicament because on the facts found, it made good deficiencies in nourishment. Such a product has not been shown to have a clearly defined therapeutic and prophylactic active effect on precise functions of the human organism”
“ It follows from those considerations that the product at issue may not be regarded as a food supplement within the meaning of Note 1(a) of the introductory notes to Chapter 30 of the Common Customs Tariff as a spirituous beverage designed to maintain general health or well-being within the meaning of Note 14 of the Explanatory Notes to the Harmonised System for designation and codification of goods relating to heading 22.08, but as a product having defined therapeutic and, above all, prophylactic characteristics, the effects of which is concentrated on precise functions of the human organism, namely, the cardiac, circulatory and neuro-vegetative functions”. 43. The notes to Chapter 21 06 are unhelpful to HMRC’s suggested classification as they refer to “preparations for infant use containing milk and products from milk”. ‘‘Neocate’’ is prepared without milk to alleviate the difficulties arising from a Cow’s Milk Allergy. Note 16 provides:- “Preparations, often referred to as food supplements, based on extracts from plants, fruit concentrates, honey, fructose, etc, and containing added vitamins and sometime minute quantities of iron compounds. These preparations are often put up in packagings with indications that they maintain general health or well-being. Similar preparations, however, intended for the prevention or treatment of diseases or ailments are excluded ”. 44. The note to 30 03 indicates:- “This heading covers medicinal preparations for use in the internal or external treatment or prevention of human or animal ailments. These preparations are obtained by mixing together two or more substances. However, if put up in measured doses or in forms or packings for retail sale, they fall in heading 30 04”