Berries Or Not Berries

Hey there, Arthur O’Meara here from O’Meara and Associates coming to you from inside my office today. I wanted to talk to you about this humble little fruit here.

I got it at Trader Joe’s, and it’s delicious. I love it. I saved one just for this video so I could show you.

The reason I want to talk to you about this little piece of fruit is because of the packaging on this fruit. The fruit came from Columbia, and we have a free trade agreement with Columbia.

So I thought, hey, would this benefit from the US-Colombia free trade agreement? Depends on the classification. 

All right, Classification.

In the Harmonized Tariff Schedule, I put it under 0810. That’s the heading. Subheading 0810.90.

Eight digit classification: 0810.90.27, “Other berries,” duty free. Or 0810.90.46 “Other,” 2.2%? Well, that depends. Is this a berry?

Turns out that fruit can be a berry under three different standards.

There is fruit that is botanically a berry. Fruit that is botanically a berry is fruit that is produced from the ovary of a single flower. That would make this botanically a berry.

So is a tomato. So is a banana. So is a watermelon.

Next, there is fruit that may not botanically be a berry, but is commonly known as a berry.

An example would be raspberries. Or strawberries. These are not berries botanically, but they’re known as berries commonly.

And then the third group is fruit that is both commonly known as berries and botanically known as berries. 

Is this fruit commonly known as a berry?

It depends on whom you ask.

The most common name of this fruit is Peruvian ground cherry.

It’s NOT a cherry.

It’s also known as Cape gooseberries from South Africa. NOT a gooseberry.

This fruit, native to Peru, is now cultivated all over the world. When it was purchased from Trader Joe’s, however, the packaging said “goldenberry.” Aha! So they’re marketing it as golden berries. It’s a berry per the marketing.

The problem here is under 0810.90.46 there is a 10 digit break out. I know we’re not supposed to look at those when we do classification, but there is a 10 digit breakout for tomatillos.

Tomatillos, green tomatoes used in salsa Verde, also a member of the nightshade family, also a member of the phisilis genus. This and tomatillos are cousins.

If you look at the plants, they look almost exactly alike.

This fruit is covered with an outer paper-like husk, just like the tomatillo. The only difference between this and the tomatillo (besides the taste) is the color. Tomatillos are green. This is like an orangey-yellow. And the size. This is “this big,” and tomatillos are a bit bigger, but other than that they’re pretty much the same thing. And the US International Trade Commission put a break out under 0810.90.46 for tomatillos, and they did not put tomatillos under 0810.90.27 “Other berries.”

Why?

I’m going to guess it’s because tomatillos are not commonly known as berries.

So what does that mean?

Well, if we put this under 0810.90.46 next to the tomatillos, because genetically, phylogenetically, botanically, they’re pretty darn close to tomatillos, it would be 2.2% normal trade relations duty rate or duty free under the US-Colombia Free Trade Agreement.

But if we say, “Botanically, they’re berries,” and they’re marketed in the United States as golden berries, then we’re going to call these “other berries”, and they would be imported into the United States duty free no matter where they come from.

I’m going with 0810.90.27 “Other berries,” which means that this little guy and his cousin are going to be classified differently, even though botanically they’re pretty darn close to being the same thing.

What are your thoughts? Let me know.

Thanks a lot.