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Noodle That!: Canada's CITT Allows

Instant Noodles Tariff Classification Appeal

Written by: Cyndee Todgham Cherniak

Date: August 6, 2019

On March 20, 2019, the Canadian International Trade Tribunal (“CITT”) released its reasons for allowing the “Instant Noodles” tariff classification appeal.  In Anderson Watts Inc. v. The President of the Canada Border Services Agency, AP-2018-003, the CITT held that various Instant Noodles were pasta (tariff item No. 1902.30.20 (within access commitment) or under tariff item No. 1902.30.31) and not soup (tariff item No. 2104.10.00 (over access commitment)).  In other words, the CITT acknowledged what many university students already know, the noodles are the most important part of this particular food product.

The goods at issue in the appeal were:

• Mr. Noodles, Instant Noodles, Chicken Simulated Flavour (85 g)
• Mr. Noodles, Instant Noodles, Beef Simulated Flavour (85 g)   
• Mr. Noodles, Instant Noodles, Spicy Chicken Simulated Flavour (85 g)   
• Mr. Noodles, Noodles in a Cup, Chicken Simulated Flavour (64 g)   
• Mr. Noodles, Kimchi Oriental Style Noodles (86 g)   
• Mr. Noodles, Hot n’ Spicy Oriental Style Noodles (86 g)   
• Compliments, Simulated Chicken Flavour (65 g)

These at issue before the CITT consisted of a sealed wrapper or foam cup containing a block of dried noodles (made up of wheat pasta) and a sealed sachet of seasoning and, in some cases, a sachet of dried vegetables. The one or two seasoning or vegetable packets are referred to as “soup base”, “flavour packets” or “seasoning”, depending on the product.  You add hot water to the cup, let sit for a minute to cook the noodles, add the soup base/flavour packet, and then eat.

The issue in this case was whether the “Instant Noodles” were a soup containing pasta (as the CBSA suggested) or pasta in a broth (as the appellant stated).  The Tribunal determined that the Instant Noodles were noodles.  In arriving at its decision, the Tribunal looked at the following facts as important.

• Instant Noodles are eaten with a fork (not a spoon);   
• Instant Noodles are marketed as noodles;   
• The soup base/flavour packet is added after the noodles are cooked; and
• The essential character of the goods was the noodles.

The CITT held that:

“The Tribunal finds that the noodles, alone, would be prima facie classifiable in heading No. 19.02 pursuant to Rule 1, as they appear to fit squarely the terms of heading No. 19.02. A review of the explanatory notes to heading No. 19.02 indicates that pasta can be made from flours of wheat, and products covered by this heading often give rise to names of finished products which include noodles. Thus, the Tribunal finds that the wheat noodles in all of the goods in issue are a type of “other pasta” covered by heading No. 19.02.”

The Tribunal applied Rules 1, 2(b) and 3 and held that Instant Noodles are properly classified as other pasta containing 25 percent or more by weight of wheat, without meat under tariff item No. 1902.30.20 (within access commitment) or under tariff item No. 1902.30.31 (over access commitment, in packages of a weight not exceeding 2.3 kg each).

There are a number of CBSA reassessments relating to imported instant noodles. As a result, this decision should provide the answer for those cases also.

This case highlights what tariff classification is about.  There have been many debates in univerisities, colleges, grad schools, etc. whether Instant Noodles (Chicken Flavour) are chicken noodle soup or noodles. Is a hot dog a sandwich?  Is iced hot choclate a milk shake?  In tariff classification, we ask similar questions and find the H.S. classification numbers for both items.  Then, we look at the facts to see which classification is more appropriate while following 6 international rules.

For more information about tariff classification appeals, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com.

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