Mar-2-05 RR:TC:SM 559753 AT
Paul E. Linet, Esq.
Law Offices of Paul E. Linet
360 Massachusetts Avenue, Suite 105
Acton, Massachusetts 01720
RE: Country of origin marking of poufs imported from
various foreign countries; conspicuous; close proximity;
U.S. locality; 19 CFR 134.46; C.S.D. 92-33; HQ 734491;
HQ 734469: refers ultimate purchaser to look for origin
in another location
Dear Mr. Linet:
This is in response to your letters dated February 27 and
July 26, 1996, on behalf of Lever Brothers Company ("Lever"),
requesting a ruling on the country of origin marking of imported
poufs which are repackaged in the U.S. into body wash kits.
Sample body wash kits (Caress Moisturizing Body Wash and Pouf,
Dove Moisturizing Body Wash and Pouf, and Lever 2000 Body Wash
and Pouf) and the retail containers in which the poufs are
repackaged were submitted with your letters.
FACTS:
You state that Lever intends to import poufs from various
foreign countries to be repackaged in the U.S. with various U.S.
origin body wash products (Caress, Dove or Lever 2000) to be sold
at retail in the U.S. as body wash kits. According to your
submission, the foreign origin poufs are individually marked with
their origin by means of a label/tag marking at the time of
importation. After importation, each individually marked pouf is
repackaged into a container by Lever in the U.S. with one disposable container of a U.S. produced body wash product. You
state that the resulting individual "kits" are sold at retail in
the U.S. in unsealed containers (i.e. containers that may be
opened and examined by the ultimate purchaser, should he/she
elect to do so at the point of sale).
Lever proposes to print the words "Poufs are Imported and
Individually Marked" on the outside of the unsealed retail
containers. You state that the origin statement "Poufs are
Imported and Individually Marked" will be placed on the same
panel as the company's U.S. address and in comparable print size.
Each of the three sample body wash kits consists of a pouf
and a disposable bottle of either Caress, Dove or Lever 2000 body
wash. The retail containers are all unsealed. Each of the
sample retail containers are marked with the company's U.S.
address "New York, NY 10022" either on the side panel (Caress and
Dove Body Wash Kit) or on the bottom panel (Lever 2000 Body Wash
Kit). Each of the poufs are individually marked with the words
"Made in (Country of Origin)" in lettering approximately 4.5
points (a point is approximately .01384 inch or 1/72 of an inch)
by means of a paper label affixed to the cord of the pouf. Other
consumer information, such as the products name (Caress, Dove or
Lever 2000), instructions on how to apply the body wash with the
pouf, and the ingredients of which the body wash is made appear
on the retail containers.
You contend that since each of the repackaged foreign-origin
poufs is properly marked with its country of origin, the proposed
marking "Poufs are Imported and Individually Marked" printed on
the retail container, in the manner described above, satisfies
the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.
ISSUES:
Does the phrase ""Poufs are Imported and Individually
Marked" proposed to be marked on the unsealed retail containers
of the body wash kits as described above satisfy the country of
origin marking requirements set forth in Section 304 of the
Tariff Act of 1930, as amended?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304), provides that unless excepted every article of foreign
origin imported into the U.S. shall be marked in a conspicuous
place as legibly, indelibly, and permanently as the nature of the
article (or container) will permit, in such a manner as to
indicate to the ultimate purchaser in the U.S. the English name
of the country of origin of the article. Congressional intent in
enacting 19 U.S.C. 1304 was that the ultimate purchaser should be
able to know by an inspection of the marking on the imported
goods the country of which the goods is the product. The evident
purpose is to mark the goods so that at the time of purchase the
ultimate purchaser may, by knowing where the goods were produced,
be able to buy or refuse to buy them, if such marking should
influence his will. United States v. Friedlaender & Co., 27
C.C.P.A. 297 at 302, C.A.D. 104 (1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Section 134.1(d), Customs Regulations (19 CFR
134.1(d)) defines ultimate purchaser as "generally the last
person in the U.S. who will receive the article in the form in
which it was imported." If an imported article is to be sold at
retail in its imported form, the purchaser at retail is the
ultimate purchaser. In this case, the ultimate purchaser of the
poufs is the consumer who purchases the body wash kit at retail.
Are The Poufs Conspicuously Marked With The Country Of Origin?
Section 134.41, Customs Regulations (19 CFR 134.41),
provides that the country of origin marking is considered
conspicuous if the ultimate purchaser in the U.S. is able to find
the marking easily and read it without strain.
In this case, we find that, as imported, the country of
origin marking "Made in (Country of Origin)" which is printed in
lettering approximately 4.5 points on a paper label affixed to
the cord of the pouf is conspicuous in that an ultimate purchaser
could easily find and read the origin marking upon a casual
examination of the article.
Are the Repackaged Poufs Conspicuously Marked with the Country of
Origin?
As indicated above, after importation Lever intends to
repackage the individually marked poufs with U.S. origin body
wash products into retail containers which are unsealed.
Therefore, Lever must satisfy the repackaging certification
requirements set forth in 19 CFR 134.26. 19 CFR 134.26 provides
in pertinent part that: If an imported article subject to these requirements is
intended to be repackaged in retail containers after its release from Customs custody, or if the port director
having custody of the article, has reason to believe that
such article will be repacked after its release, the
importer shall certify to the port director that: (1) If
the importer does the repacking, he shall not obscure or
conceal the country of origin marking appearing on the
article, or else the new container shall be marked to
indicate the country of origin of the article in
accordance with the requirements of this part . . .
(Emphasis added).
Since Lever proposes to mark the retail containers with the
phrase "Poufs are Imported and Individually Marked" to indicate
the country of origin of the imported pouf it must be determined
whether this phrase satisfies the marking requirements set forth
in 19 CFR Part 134.
In determining whether the marking is acceptable, Customs
will take into account the presence of words or symbols on an
article which may mislead the ultimate purchaser as to the
country of origin. Consequently, if the words "United States,"
or "America," the letters "U.S.A.," any variation of such words
or letters, or the name of any city or locality other than the
country of origin appear on the imported article, special marking
requirements are triggered.
Section 134.46, Customs Regulations (19 CFR 134.46),
requires that in any case in which the words "United States," or
"American," the letters "U.S.A.," any variation of such words or
letters, or the name of any city or locality in the United
States, or the name of any foreign country or locality other than
the country or locality in which the article was manufactured or
produced, appears on an imported article or its container, there
shall appear, legibly and permanently, in close proximity to such
words, letters, or name, and in at least a comparable size, the
name of the country of origin preceded by "Made in," Product of,"
or other words of similar meaning. The purpose of this section
is to prevent the possibility of misleading or deceiving the
ultimate purchaser as to the actual origin of the imported goods.
The special marking requirements set forth in section 134.46
are triggered by the company's U.S. address "New York, NY 10022"
printed on either the side or bottom panel of the retail
container. Accordingly, the actual country of origin of the imported poufs must appear "in close proximity" to the U.S.
address and in lettering of at least a comparable size.
Therefore, another issue presented in this case is whether the
marking "Poufs are Imported and Individually Marked" which is to
be printed in close proximity (same panel) to the U.S. address
"New York, NY 10022" satisfies the country of origin marking
requirements of 19 CFR 134.46.
Customs has previously approved country of origin markings
which do not designate a specific country of origin in close
proximity to the U.S. reference but instead direct the ultimate
purchaser to a conspicuous location where the country of origin
can be found on the article. For example, in C.S.D. 92-33
(September 2, 1992), Customs determined that the language "See
Part Number Label For Country of Origin" printed on stand-alone
boxes and outside wrappers containing imported engine parts
immediately beneath a U.S. address, was acceptable if the part
number label displaying the name of the country of origin was
easily visible to the ultimate purchaser. See also, HQ 734491
(April 13, 1992), in which Customs approved the country of origin
marking "Contents Imported. See Article for Country of Origin"
printed on retail containers where the auto parts were
individually marked with their origin.
In this case, you state that the proposed origin statement
"Poufs are Imported and Individually Marked" is to be printed on
the unsealed retail container in close proximity and at least in
comparable size to the U.S. address "New York, NY 10022".
Moreover, the actual country of origin of the imported foreign-origin poufs is conspicuously marked on the cord of the pouf and
as we determined above, is easy to find and read by an ultimate
purchaser upon a casual examination of the article. Therefore,
we find that marking the unsealed retail containers in the manner
described above will satisfy the requirements of 19 CFR 134.46,
provided the poufs are individually marked to indicate their
origin.
HOLDING:
The poufs which are imported conspicuously marked with their
country of origin and are repacked in the U.S. into unsealed
retail containers and sold as body wash kits in the U.S. are
subject to the certification and notice requirements of 19 CFR
134.26. Marking the repacked unsealed retail containers with the
phrase "Poufs are Imported and Individually Marked" in the manner
described above satisfies the requirements of 19 U.S.C. 1304 and
19 CFR Part 134, provided the imported poufs are individually
marked to indicate their country of origin.
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is entered. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.
Sincerely,
John Durant, Director
Tariff Classification and Appeals Division