MAR-2 RR:CR:SM 562109 KSG
Ernesto Bustamante
Operations Manager
William F. Joffrey, Inc.
P.O. Box 698
Nogales, Arizona 85628-0698
RE: Country of origin marking of imported tubes to be filled with cosmetics; modification of HQ 561829; "Made in U.S.A." marking on disposable containers
Dear Mr. Bustamante:
This is in reference to Headquarters Ruling Letter ("HQ") 561829, that was issued to you on December 15, 2000, on behalf of Thatcher Tubes which dealt with the country of origin marking requirements for foreign-made tubes imported empty to be filled in the U.S. We have reviewed this ruling in light of our previous rulings and have determined that the portion of HQ 561829 relating to the "Made in USA" marking on the empty tube containers is incorrect. Therefore, this ruling modifies HQ 561829 and sets forth the proper country of origin marking requirements for the foreign-origin tubes.
Pursuant to section 625(c), Tariff Act of 1930, as amended (19 U.S.C. 1625(c)), notice of the proposed modification of HQ 561829 was published on October 30, 2001, in the Customs Bulletin, Volume 35, No. 44. No comments were received in response to this notice.
FACTS:
Thatcher Tubes plans to import empty disposable plastic tube containers and caps that are made in Mexico. Once imported into the U.S. through the port of Nogales, Arizona, the plastic tubes will be shipped to customers who will fill and seal the tubes to form the finished article. The tubes will be filled with various products of U.S. origin, including hand cream. The filled and sealed tubes will be sold to ultimate purchasers in the U.S.
The imported empty tubes will be marked with the name and address of the U.S. manufacturer of the various products (for example, hand cream) to be inserted into the tubes as well as instructions on use of the product. The sample submitted is an empty tube for Neutrogena hand cream. On the back of the tube, there is a U.S. address of Neutrogena Corporation and the phrase "Made in U.S.A."
ISSUE:
Whether the foreign-origin disposable tubes may be imported bearing the phrase "Made in U.S.A."
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930 (19 U.S.C. 1304), as amended, 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 its 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. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements of 19 U.S.C. 1304.
In Headquarters Ruling Letter (HQ) 734240, dated December 24, 1991, Customs held that the phrase "Made in U.S.A." on foreign-made tubes and aerosol cans imported empty to be filled in the U.S. with U.S.-origin products would not mislead an ultimate purchaser as to the origin of the disposable container, as long as the outer container of the disposable foreign-made container was properly marked. Therefore, the disposable containers were excepted from individual marking and the phrase "Made in U.S.A." could appear on the disposable containers at the time of importation. See also HQ 734781, dated December 24, 1992; and HQ 734573, dated August 10, 1992.
In this instance there is no implication that the tube is of U.S. origin; the reference plainly is to its future U.S. contents. The marking "Made in U.S.A." would not mislead an ultimate purchaser of the disposable containers, who have ample knowledge of the country of origin of the disposable tubes and know that the phrase "Made in U.S.A." is on the disposable tubes to refer to the origin of the future contents of the tubes. Provided that the outer container of the disposable tube is marked as to the origin of the disposable tubes, the country of origin marking requirements of 19 U.S.C. 1304 will be satisfied. Consistent with this ruling, we propose to modify HQ 561829.
The Federal Trade Commission (“FTC”) has jurisdiction concerning the use of the phrase “Made in the U.S.A.,” or similar words denoting U.S. origin. Consequently, any inquiries regarding the use of such phrases reflecting U.S. origin should be directed to Steven Ecklund at the FTC, at the following address: Federal Trade Commission, 6th & Pennsylvania Avenue, N.W., Washington, D.C. 20508 or by telephone at (202) 326-2841.
HOLDING:
The empty foreign–origin disposable tubes may be imported marked "Made in U.S.A.," assuming that the tubes will be filled by the ultimate purchaser of the tubes in the U.S. with U.S.-origin products and the outer container of the imported disposable tubes is marked with the country of origin of the tubes.
HQ 561829, dated December 15, 2000, is hereby modified to the extent that it is inconsistent with this ruling. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
John Durant
Director,
Commercial Rulings Division