There has been a long-standing debate over the proper Customs classification of certain types of alcohol beverages within the World Customs Organisation’s (WCO) approach to classifying products — the Harmonised System (HS). HS Chapter 22 covers the categorisation of alcohol beverages. HS Chapter 22 was set up so that fermented alcohol beverages, whether subject to further filtration processes or supplemented with alcohol, retained their customs classifications as fermented products. An emerging question has revolved around whether the “essential character” of fermented products has been so altered in the production process that they should be reclassified as “distilled.” This question has led to inconsistent classifications of the same product by different countries, as well as by European Union member states which are in the same customs territory. The impetus for reclassification has had its roots in the fact that fiscal treatment of alcohol beverage products in the EU and other countries is based on customs classifications; fiscal rates for distilled products are normally higher than those for fermented ones. Despite some inconsistent classification decisions, the current situation based on a bright line distinction between distilled and fermented products has historically proven workable for the trade. The reclassification by some countries of fermented products as distilled under the theory that they were akin to distilled has however blurred the generally clear demarcation between fermented and distilled products.
At its 2010 Autumn meeting, the WCO’s Harmonised System Committee (HSC) considered the proper classification of three “test” products and possible revisions to relevant Explanatory Notes in Chapter 22. In 2011, the HSC considered and classified certain fermented products that had undergone purification techniques (e.g., reverse osmosis, ultra-filtration, etc.) under headings that had hitherto been exclusively reserved for distilled beverages. The following industry report, including some particular annexes, describes the high degree of uncertainty such re-classifications would (and now will) have for the trade. This legal examination suggests how these decisions are inconsistent with the long-standing architecture of this customs chapter. The legal analysis (both in summary and complete forms) is still germane, despite having been written before the HSC classification determinations in 2011. In the Spring of 2012, the HSC made changes to the HS definition of “ethyl alcohol” in order to bring its explanatory notes in line with its classification decisions of the test products.