Nature’s Touch Frozen Foods (west) Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
NATURE’S TOUCH FROZEN FOODS (WEST) INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-2093
______________________
Appeal from the United States Court of International
Trade in No. 1:20-cv-00131-SAV, Judge Stephen A. Vaden.
______________________
Decided: May 9, 2025
______________________
J OHN M. P ETERSON, Neville Peterson LLP, New York,
NY, argued for plaintiff-appellant. Also represented by
P ATRICK K LEIN; RICHARD F. O’N EILL , Seattle, WA.
BRANDON ALEXANDER K ENNEDY , Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, New York, NY, argued for defendant-appellee.
Also represented by BRIAN M. BOYNTON, AIMEE L EE ,
P ATRICIA M. MCCARTHY , J USTIN REINHART MILLER; F ARIHA
K ABIR , Office of Assistant Chief Counsel, International
Trade Litigation, United States Department of Homeland
Security, New York, NY.
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NATURE' S TOUCH FROZEN FOODS ( WEST) INC. v. US 2
______________________
Before H UGHES and S TARK, Circuit Judges, and
S CHROEDER , District Judge.1
HUGHES , Circuit Judge.
Nature’s Touch Frozen Foods (West) Inc. imported fro-
zen fruit mixtures2 into the United States from Canada.
The United States Customs and Border Protection classi-
fied the merchandise under subheading 0811.90.80
(“Fruit . . . frozen . . . other”) of the Harmonized Tariff
Schedule of the United States, and Nature’s Touch pro-
tested the determination. Following the denial of its pro-
test, Nature’s Touch initiated suit in the Court of
International Trade, which granted the government’s mo-
tion for summary judgment and upheld the classification.
Because we agree that the common meaning of “fruit” en-
compasses “mixed fruit” and that “other” is properly inter-
preted as constituting a catch-all provision, we affirm.
I
A
Nature’s Touch imports fruits and vegetables to its fa-
cility in Canada where it cleans, combines, and packages
the fruits and vegetables into frozen mixtures for export to
the United States. Apart from some frozen blueberries, all
fruits and vegetables arrive at Nature’s Touch’s facility
1 The Honorable Robert W. Schroeder III, District
Judge, United States District Court for the Eastern Dis-
trict of Texas, sitting by designation.
2 Five of the fourteen mixtures at issue also contain
vegetables but are referred to as “frozen fruit mixtures” by
both parties. J.A. 10–11.
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NATURE' S TOUCH FROZEN FOODS ( WEST) INC. v. US 3
already cut and frozen. The resultant mixtures contain
only fruits and vegetables—no other ingredients are in-
cluded.
This case involves fourteen different frozen fruit mix-
tures, five of which also include frozen vegetables. Nature’s
Touch Frozen Foods (W.) Inc. v. United States, 639 F. Supp.
3d 1287, 1294 (Ct. Int’l. Trade 2023); J.A. 8–9. The specific
combinations of frozen fruit and vegetables are:
(1) Frozen Strawberry/Banana: 52% strawberry,
48% banana
(2) Frozen Berry Mix: 22% blueberry, 32% straw-
berry, 28% blackberry, 18% raspberry
(3) Frozen Triple Berry: 34% blueberry, 33% black-
berry, 33% raspberry
(4) Organic Mixed Berry: 35% strawberry, 25%
blackberry, 25% blueberry, 15% raspberry
(5) Organic Very Berry Burst: 30% strawberry,
30% blackberry, 30% blueberry, 10% raspberry
(6) Organic Strawberry/Blueberry/Mango: 34%
strawberry, 33% blueberry, 33% mango
(7) Organic Tropical Blend: 34% strawberry, 33%
mango, 33% pineapple
(8) Antioxidant Blend Frozen: 30% strawberry,
20% cherry, 20% pomegranate, 15% blueberry, 15%
raspberry
(9) Frozen Medley Mixed Fruit: 35% strawberry,
25% peach, 15% pineapple, 15% mango, 10%
grapes
(10) Organic Green Mango Medley: 18% straw-
berry, 25% banana, 35% mango, 22% kale
(11) Organic Tropical Fruit and Greens: 46% pine-
apple, 37% mango, 8.5% spinach, 8.5% kale
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NATURE' S TOUCH FROZEN FOODS ( WEST) INC. v. US 4
(12) Organic Strawberry/Cherry/Kale: 34% straw-
berry, 33% cherry, 33% kale
(13) Organic Triple Berry with Kale: 27% blue-
berry, 20% blackberry, 23% apple, 15% raspberry,
15% kale
(14) Blueberry Blitz: 40% blueberry, 20% black-
berry, 25% apple, 15% butternut squash
J.A. 10–11.
B
This case concerns mixtures that were imported into
the United States from Canada between June 6 and No-
vember 21, 2018. Customs classified the mixtures in liqui-
dation under heading 0811 of the Harmonized Tariff
Schedule of the United States (HTSUS), which covers
“Fruit and nuts, uncooked or cooked by steaming or boiling
in water, frozen, whether or not containing added sugar or
other sweetening matter.” Customs classified the mixtures
under the following subheadings based on the ingredients
in the mixtures: 0811.90.10 (“Bananas and plantains”),
0811.90.20 (“Blueberries”), 0811.90.52 (“Mangoes”), and
0811.90.80 (“Other”).
Nature’s Touch protested the classifications with Cus-
toms, contending that the frozen fruit mixtures should in-
stead be classified under subheading 2106.90.98, “Food
preparations not elsewhere specified or included: . . .
Other.” Nature’s Touch, 639 F. Supp. 3d at 1293. The pro-
test was denied.
Nature’s Touch initiated suit in the Court of Interna-
tional Trade challenging Customs’ classification. Nature’s
Touch moved for summary judgment—seeking a determi-
nation that the mixtures are properly classified under
heading 2106.90.98: “Food preparations not elsewhere
specified or included”—and the government filed a cross-
motion for summary judgment seeking affirmance of
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NATURE' S TOUCH FROZEN FOODS ( WEST) INC. v. US 5
Customs’ classification. The trial court granted-in-part the
government’s motion for summary judgment.3 Nature’s
Touch, 639 F. Supp. 3d at 1292.
The trial court entered a final decision on May 26,
2023, and Nature’s Touch timely appealed on June 23,
2023. We have jurisdiction under 28 U.S.C. § 1295(a)(5).
II
A
We review the Court of International Trade’s grant of
summary judgment without deference. CamelBak Prods.,
LLC v. United States, 649 F.3d 1361, 1364 (Fed. Cir. 2011).
We review questions of law de novo and factual findings for
clear error. Home Depot U.S.A., Inc. v. United States,
491 F.3d 1334, 1335 (Fed. Cir. 2007).
B
Tariff classification under the HTSUS is a two-step
process: first, the proper meanings of the terms of the tariff
provisions are ascertained, and second, whether the sub-
ject merchandise comes within the description of those
terms is determined. Rollerblade, Inc. v. United States,
282 F.3d 1349, 1352 (Fed. Cir. 2002). The proper meaning
of the tariff provisions is a question of law, and the deter-
mination of whether the subject imports properly fall
within the scope of the possible headings is a question of
fact that we review for clear error. Universal Elecs. Inc. v.
3 The trial court agreed with the government’s ar-
gued classification result for five of the mixtures, but for
the other nine products, the trial court’s classification re-
sulted in a higher duty rate than the one sought by the gov-
ernment. Id. at 1310–11. The trial court denied the
government’s motion as to the classification of those nine
products and ordered Customs to reclassify all products
into 0811.90.80, HTSUS.
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United States, 112 F.3d 488, 491 (Fed. Cir. 1997). But
“when there is no dispute as to the nature of the merchan-
dise, then the two-step classification analysis ‘collapses en-
tirely into a question of law.’” Link Snacks, Inc. v. United
States, 742 F.3d 962, 965–66 (Fed. Cir. 2014) (quoting
Cummins Inc. v. United States, 454 F.3d 1361, 1363
(Fed. Cir. 2006)).
The HTSUS is organized into headings, which “set
forth general categories of merchandise,” and subheadings,
which “provide a more particularized segregation of the
goods within each category.” Orlando Food Corp. v. United
States, 140 F.3d 1437, 1439 (Fed. Cir. 1998). The General
Rules of Interpretation (GRIs) govern classification of mer-
chandise under the HTSUS. N. Am. Processing Co. v.
United States, 236 F.3d 695, 698 (Fed. Cir. 2001). GRI 1
provides that classification should first be determined ac-
cording to the terms of the headings and any associated
section or chapter notes; GRI 1 takes precedence over the
remaining rules. See generally HTSUS GRI 1. “Absent con-
trary legislative intent, HTSUS terms are to be construed
according to their common and commercial meanings,
which are presumed to be the same.” Carl Zeiss, Inc. v.
United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999) (cita-
tion omitted). A product is classifiable under GRI 1 if it “is
described in whole by a single classification heading” of the
HTSUS. La Crosse Tech., Ltd. v. United States, 723 F.3d
1353, 1358 (Fed. Cir. 2013) (quoting CamelBak Prods.,
649 F.3d at 1364).
If a product is not classifiable under GRI 1, GRI 2(b),
which governs the classification of mixtures and goods con-
sisting of two or more materials, provides that if the mix-
tures and combinations are potentially classifiable under
two or more headings, they must be classified under GRI 3.
GRI 3(a) provides that the goods should be classified under
the heading that provides the most specific description, but
if multiple headings each refer to part or only one of the
materials or substances, they are regarded as equally
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NATURE' S TOUCH FROZEN FOODS ( WEST) INC. v. US 7
specific. Under GRI 3(b), mixtures or composite goods that
cannot be classified by 3(a) are classified by the material or
component which gives them their “essential character.” If
the goods cannot be classified under GRI 3(a) or 3(b),
GRI 3(c) requires the goods to be classified under the head-
ing last in numerical order among the headings that
equally merit consideration.
To ascertain the appropriate subheading, GRI 6 directs
application of GRIs 1 through 5 again at the subheading
level. HTSUS, GRI 6 (“[T]he classification of goods in the
subheadings of a heading shall be determined according to
the terms of those subheadings and any related subhead-
ing notes and, mutatis mutandis, to the above rules, on the
understanding that only subheadings at the same level are
comparable.”).
III
Nature’s Touch contends that classification under sub-
heading 0811.90.80 (“Fruit . . . frozen . . . other”) was im-
proper, and that heading 2106 (“Food preparations not
otherwise specified or included”) more appropriately de-
scribes the mixtures. Nature’s Touch also argues that if its
classification is correct, the mixtures are entitled to duty-
free treatment under the North American Free Trade
Agreement because they underwent a shift in tariff classi-
fication and would meet the requirement of originating in
the territory of a NAFTA party. Nature’s Touch’s Opening
Br. 39–40; see Cummins, 454 F.3d at 1361–62 (“Under the
United States’ tariff laws, products that ‘originate in the
territory of a NAFTA party’ are entitled to preferential
duty treatment.”).
A
1
We first consider whether the trial court correctly in-
terpreted heading 0811 (“Fruit and nuts, uncooked or
cooked by steaming or boiling in water, frozen, whether or
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NATURE' S TOUCH FROZEN FOODS ( WEST) INC. v. US 8
not containing added sugar or other sweetening matter”) to
encompass the nine mixtures that contain only fruit. The
trial court determined that, although the meaning of the
term “fruit” is not discussed in the chapter notes or explan-
atory notes, “the common meaning of the term ‘fruit’ em-
braces mixed fruits and does not imply a limitation to
individual types of fruit.” Nature’s Touch, 639 F. Supp. 3d
at 1299. We agree.
“A court may rely upon its own understanding of the
terms used and may consult lexicographic and scientific
authorities, dictionaries, and other reliable information
sources.” Carl Zeiss, 195 F.3d at 1379 (internal citation
omitted). The trial court properly considered the dictionary
definition of “fruit,” which confirmed that “fruit” has a plu-
ral meaning that denotes “fruit in general,” and use of
“fruit” in terms like “fruit bowl” or “fruit plate,” which the
trial court concluded embraces mixed fruits. Nature’s
Touch, 639 F. Supp. 3d at 1299 (citing Fruit, O XFORD
ENGLISH D ICTIONARY (2d ed. 1989) (“Vegetable products in
general, that are fit to be used as food by men and ani-
mals.”); Fruit, CollinsDictionary.com, https://www.collins-
dictionary.com/us/dictionary/english/fruit (last visited
May 8, 2025) (noting that “[t]he plural form is usually fruit,
but can also be fruits”); Fruit, AMERICAN HERITAGE
D ICTIONARY (3d ed. 1996) (plural “fruit or fruits”); Fruit,
WEBSTER ’S N EW I NTERNATIONAL D ICTIONARY (2d ed. 1956)
(“Collectively, a dish, a selection, a diet, of fruits”)). We see
no error in the trial court’s analysis that “fruit” properly
encompasses mixed fruits.
Nature’s Touch argues that nothing in the language of
the heading mentions mixtures, and that the subheadings
of heading 0811 all describe individual fruits or groups of
specific fruits—not mixtures. The trial court properly con-
sidered the common and commercial meaning of “fruit”
without resorting to an analysis of the types and qualities
of fruit enumerated in the relevant subheadings. We agree
that the common meaning of “fruit” describes mixed fruits,
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NATURE' S TOUCH FROZEN FOODS ( WEST) INC. v. US 9
and that therefore the frozen fruit mixtures are properly
classified in heading 0811.
Nature’s Touch also contends that heading 2106 (“Food
preparations not elsewhere specified or included”) is a more
appropriate classification for the frozen fruit mixtures.
Heading 2106 is a basket provision, which is a non-specific
provision, and we have said that “[c]lassification of im-
ported merchandise in a basket provision is only appropri-
ate if there is no tariff category that covers the
merchandise more specifically.” R.T. Foods, 757 F.3d
at 1354 (alteration in original) (quoting Rollerblade, Inc. v.
United States, 116 F. Supp. 2d 1247, 1251 (Ct. Int’l Trade
2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002)). Because
mixed frozen fruit is properly included in heading 0811, we
need not consider whether the frozen fruit mixtures are
“preparations” under heading 2106.
2
We next consider whether the five fruit and vegetable
mixtures are also properly classified under heading 0811.
The trial court first determined that the fruit and vegetable
mixtures could not be classified under heading 0811 pursu-
ant to GRI 1. Nature’s Touch, 639 F. Supp. 3d at 1300.
Heading 0811 is an eo nomine provision; eo nomine provi-
sions “include[] all forms of the named article, even im-
proved forms,” as long as the product does not “possess
features substantially in excess of those within the com-
mon meaning of the term.” CamelBak Prods., 649 F.3d
at 1365 (alterations in original) (internal quotation marks
omitted) (citing Casio, Inc. v. United States, 73 F.3d 1095,
1098 (Fed. Cir. 1996)). The trial court determined that the
vegetable content of the mixtures meant that the mixtures
“contain[ed] features substantially in excess of frozen
fruit,” because vegetables comprise between 15% and 33%
of the total mixture content and “form[] a significant part
of the products’ commercial identity” by virtue of the refer-
ence to the vegetable content in the names of the mixtures.
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NATURE' S TOUCH FROZEN FOODS ( WEST) INC. v. US 10
Nature’s Touch, 639 F. Supp. 3d at 1301. We agree that the
mixtures cannot be classified under heading 0811 pursuant
to GRI 1 because the frozen fruit and vegetable mixtures
are not described in whole by the term “fruit.”
We then consider whether the mixtures are properly
classified under heading 2106 as a “food preparation” pur-
suant to GRI 1. The trial court determined that, while the
fruit and vegetable mixtures are food, they are not “prepa-
rations.” Id. at 1301–02. We agree. In Orlando Food, we
stated that “[i]nherent in the term ‘preparation’ is the no-
tion that the object involved is destined for a specific use.”
140 F.3d at 1441 (citing Preparation, O XFORD ENGLISH
D ICTIONARY (2d ed. 1989) (“[A] substance specially pre-
pared, or made up for its appropriate use or application,
e.g. as food or medicine, or in the arts or sciences.”)). A food
preparation must accordingly undergo additional pro-
cessing beyond what is already inherently encompassed
within the term “food.”
Nature’s Touch contends that there is a “considerable
amount of ‘preparation’” in readying the mixtures, includ-
ing cutting, sifting out inedible materials, cleaning, freez-
ing, and mixing the fruits and vegetables. Nature’s Touch’s
Opening Br. 36. We do not agree that these processes are
sufficient to render the fruit and vegetable mixtures a
“preparation.”
The Explanatory Note to heading 2106 provides an ex-
ample of a food preparation, and describes it as:
Mixtures of plants, parts of plants, seeds or
fruit (whole, cut, crushed, ground or pow-
dered) of species falling in different Chapters
(e.g. Chapters 7, 9, 11, 12) or of different spe-
cies falling in heading 12.11, not consumed as
such, but of a kind used either directly for fla-
vouring beverages or for preparing extracts
for the manufacture of beverages.
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NATURE' S TOUCH FROZEN FOODS ( WEST) INC. v. US 11
Explanatory Note 21.06 (15) (emphasis added). We read
this to explicitly exclude cut plant material that is “con-
sumed as such” from being a “preparation.” Since we con-
clude that the cut and mixed fruit and vegetables are
“consumed as such,” cutting and mixing the fruit and veg-
etables is insufficient to create a “preparation.” We also
agree with the trial court that cleaning, sorting, and in-
specting food products is inherent to processing commercial
food products, and therefore insufficient to constitute
“preparation.” Nature’s Touch, 639 F. Supp. 3d at 1302.
Nature’s Touch also alleges that freezing the fruit prod-
ucts is sufficient to result in a “preparation,” as “frozen
fruit mixes are . . . indisputably distinct articles from the
product in its raw form.” Nature’s Touch’s Opening Br. 37.
We disagree. The structure of the HTSUS supports that
frozen food is not prepared food in a tariff sense. Chapters 7
and 8 contain frozen fruit and vegetables. Chapter 20 co-
vers “Preparations of vegetables, fruit, nuts or other parts
of plants” and specifically excludes fruits and vegetables
that have been “prepared or preserved by the processes
specified in chapter 7, 8, or 11.” HTSUS, Ch. 20, Note 1(a).
If freezing food is “preparing” it, as Nature’s Touch argues,
the freezing process should be excluded from Chapter 20.
Yet Chapter 20 contains frozen products, which leads us to
conclude that HTSUS does not consider freezing food to
mean preparing food. See R.T. Foods, 757 F.3d at 1356–57
(conducting the same analysis to conclude that frying veg-
etables did not constitute preserving or preparing vegeta-
bles).
Further, the Customs Court and the Court of Interna-
tional Trade have repeatedly held that freezing food alone
is not sufficient to prepare it. Frosted Fruit Prods. Co. v.
United States, 18 Cust. Ct. 119, 121 (1947) (holding that
trimmed, cleaned, frozen, and packed guavas “are not ‘pre-
pared’ in a tariff sense”); Interocean Chem. & Minerals
Corp. v. United States, 715 F. Supp. 1093, 1096 (Ct. Int’l
Trade 1989), aff’d sub nom. Interocean Chem. & Mineral
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Corp. v. United States, 898 F.2d 1577 (Fed. Cir. 1990) (“[I]t
has been held that freezing, being a temporary preserva-
tion[,] is neither a preparation nor a preservation for tariff
purposes.”); U.S. v. Conkey & Co., 12 U.S. Cust. App. 552,
554, 556 (Ct. Cust. App. 1925) (concluding that, even
though “frozen lamb is not fresh lamb,” “frozen lamb and
fresh lamb are so similar in material, quality, texture, and
use” that frozen lamb “may be classified as fresh lamb”);
see also Crawfish Processors All. v. United States, 431 F.
Supp. 2d 1342, 1348–49 (Ct. Int’l Trade 2006) (noting that
“Frosted Fruit made it clear that more is necessary than
freezing to make something prepared or preserved” (em-
phasis added)).
We conclude that the fruit and vegetable mixtures can-
not be classified under heading 2106 as a “food prepara-
tion” because they are not “prepared” in a tariff sense.
Because neither heading 0811 nor heading 2106 describe
the fruit and vegetables mixtures in whole, we turn to
GRI 3 to classify the fruit and vegetable mixtures.
The trial court determined that, under GRI 3(a), both
heading 0811 (“Fruit . . . frozen”) and heading 0710 (“Veg-
etables . . . frozen”) each referred to part of the mixtures,
which means that the headings are both equally specific.
The trial court then turned to GRI 3(b) and concluded that
“[b]ecause the fruit-and-vegetable mixtures contain be-
tween 67% and 85% frozen fruit ingredients by weight, . . .
the fruit ingredients predominate and impart the essential
character of these mixtures.” Nature’s Touch, 639 F. Supp.
3d at 1305. We agree. Essential character may be deter-
mined by “the nature of the material or component, its
bulk, quantity, weight or value.” HTSUS, GRI 3(b), Ex-
planatory Note VIII. Further, Nature’s Touch repeatedly
refers to all fourteen mixtures as “fruit mixtures.” See, e.g.,
Nature’s Touch’s Opening Br. 3 (“[T]here are fourteen (14)
frozen fruit mixtures at issue in this case”); id. at 31 (“[T]he
fourteen different frozen fruit mixtures at issue in this ac-
tion”); id. at 35 (“[T]he fourteen frozen fruit mixtures”). We
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NATURE' S TOUCH FROZEN FOODS ( WEST) INC. v. US 13
conclude that the essential character of the fruit and vege-
table mixtures is fruit, and that the five fruit and vegetable
mixtures are properly classified under heading 0811.
B
We next consider whether the trial court correctly clas-
sified the mixtures into subheading 0811.90.80 (“Other”).
The applicable subheadings under heading 0811 are:
0811: Fruit and nuts, uncooked or cooked
by steaming or boiling in water, frozen,
whether or not containing added sugar or
other sweetening matter:
0811.10: Strawberries: 11.2%
0811.20: Raspberries, blackberries,
mulberries . . . 4.5–9%
0811.90: Other:
0811.90.10: Bananas and plan-
tains: 3.4%
0811.90.20: Blueberries: Free
0811.90.52: Mangoes: 10.9%
0811.90.80: Other: 14.5%
HTSUS, 0811. The trial court first applied GRI 1 at the six-
digit subheading level, and then again at the eight-digit
subheading level. The trial court determined that “other”
was the most appropriate six-digit, and then eight-digit,
subheading, because “other” means “none of the above.”
Nature’s Touch, 639 F. Supp. 3d at 1307. While we agree
that the trial court’s classification into “other” was correct,
we do not read “other” as meaning “none of the above.”
“Other” is a residual or basket subheading and is more ap-
propriately understood as meaning “none of the preceding
categories.” See Rollerblade, 282 F.3d at 1354 (stating that
residual subheadings such as “other [sports equipment]”
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NATURE' S TOUCH FROZEN FOODS ( WEST) INC. v. US 14
are “intended as a broad catch-all to encompass the classi-
fication of articles for which there is not a more specifically
applicable subheading”) (alteration in original) (quoting
EM Indus. v. United States, 999 F. Supp. 1473, 1480 n.9
(Ct. Int’l Trade 1998)). “None of the above” suggests that
the articles are not described at all by the preceding cate-
gories. “None of the preceding categories” is a more appro-
priate reading because the articles may be described in
part by the categories above. Here, for example, some mix-
tures contain strawberries. Reading “other” as “none of the
above” would suggest that none of the mixtures contain
strawberries. It is more appropriate to conclude that none
of the preceding categories apply—the category of “straw-
berries” does not accurately describe in whole the mixtures
containing strawberries because they contain other ingre-
dients as well. We conclude that “other” should be read as
a broad, residual catch-all provision meaning “none of the
preceding categories,” and that the “other” categories at
both the six- and eight-digit subheadings appropriately
classify the mixtures as none of the preceding categories at
either level are wholly applicable.
C
Because we have concluded that the mixtures did not
undergo a shift in tariff classification, we need not consider
whether the mixtures are entitled to preferential duty-free
treatment under NAFTA.
IV
We have considered Nature’s Touch’s remaining argu-
ments and find them unpersuasive. Because the mixtures
are properly classified under subheading 0811.90.80
(“Fruit . . . frozen . . . other”), we affirm.
AFFIRMED
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