MAR-2-05 CO:R:C:V 731640 jd
Anthony D. Padgett, Esq.
Thelen, Marrin, Johnson & Bridges
2300 N Street, NW
Washington, D.C. 20037
RE: Country of origin marking requirements applicable to
effervescent enzymatic cleaner tablets
Dear Mr. Padgett:
This is in response to your letter of July 28, 1988,
concerning the country of origin marking requirements applicable
to effervescent enzymatic cleaner tablets, a product used in
cleaning and disinfecting contact lenses.
FACTS:
According to your submission, your client sells a contact
lens cleaning kit containing a plastic molded tray, two vials, a
counter-insert and ten cleaner tablets enclosed in foil. The
tray, vials and counter-insert are of U.S. origin. The tablets
may be of either West German or U.S. origin. The majority of
tablets are produced by a West German subsidiary of your client.
The tablets are shipped to the U.S. in bulk, packaged in
polyethylene bags and overpacked in cartons. U.S. tablets are
used only when West German tablets are in short supply.
You seek approval of the marking "Tablets made in West
Germany or the United States." Otherwise, stocks of cleaner
tablets will have to be kept separate and separate boxes or
labels will have to be kept in inventory. In your opinion, your
label would be "much more cost efficient, and would provide the
ultimate consumer with the information required by the applicable
laws and regulations."
ISSUE:
Is a statement that the cleaner tablets in a contact lens
cleaning kit are of either West German or domestic origin
sufficient to satisfy the requirements of 19 U.S.C 1304?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304), generally requires that every article of foreign origin
(or its container) imported into the United States shall be
marked in a conspicuous place as legibly, indelibly and
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permanently as the nature of the article (or container) will
permit in such a manner as to indicate to an ultimate purchaser
in the United States the English name of the country of origin of
the article.
Section 134.25, Customs Regulations (19 CFR 134.25), requires
that containers of repackaged J-List articles or articles
incapable of being marked must be marked to indicate the country
of origin of the contents by either the importer who repackages
the articles or the purchaser or transferee of such articles who
does the repacking, and that the importer must certify to the
district director on entry that the repacked containers will be
marked or that he will notify the purchaser or transferee of such
marking requirements.
You state that the tablets are so small and fragile that it
would be impossible to individually mark them. In any event, the
tablets are exempt from individual marking by virtue of 19 U.S.C.
1304(a)(3)(J) and { 134.33, Customs Regulations (19 CFR 134.33),
since "Chemicals, drugs, medicinal, and similar substances, when
imported in capsules, pills, tablets, lozenges, or troches" are
J-List articles. Articles on the J-List are exempt from
individual marking, however the outermost container that
ordinarily reaches the ultimate purchaser of a J-List article
must be marked with the country of origin of the article.
Section 134.32(o), Customs Regulations (19 CFR 134.32(o)),
provides for an exception to marking for articles which cannot be
marked after importation except at an expense that would be
economically prohibitive unless the importer, producer, seller or
shipper failed to mark the articles before importation to avoid
meeting the requirements of 19 U.S.C 1304.
You are aware that Customs has previously approved country of
origin statements that mention more than one country of origin on
certain repacked articles, and you believe your client's
situation should receive similar treatment. However, we do not
agree that the facts surrounding your client's cleaner tablets
are sufficiently similar to the facts involved in those prior
Customs rulings, e.g., industrial fasteners, fertilizer, honey
and orange juice, to warrant such treatment.
In the case of industrial fasteners (C.S.D. 84-56),
distributors sourced up to 40,000 different fastener sizes and
varieties from up to 30 different countries. Fasteners were not
individually wrapped, or even wrapped in small quantities (such
as 10 cleaner tablets), but rather were commingled in large kegs.
The fertilizer ruling (C.S.D. 84-50) did not discuss how many
source countries were involved, but it is evident there were more
than two types of fertilizer involved. Also, fertilizer was not
susceptible to any individual wrapping during bulk storage since
it was commingled in warehouse. Similarly, in the case of honey
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(C.S.D. 84-44), there were at least eight foreign sources and
honey is not susceptible to individual wrapping during commingled
bulk storage.
Finally, in ruling 729523 (May 1, 1986), we did not approve a
request to allow orange juice processors to use a label that
stated, "may contain concentrate from Florida and/or Brazil."
Customs explained its disapproval by saying that the phrase,
"does not actually inform the ultimate purchaser of the country
of origin; it merely indicates the possibility that a product may
be of foreign origin. We believe that approval of the 'may
contain' language would render the country-of-origin marking
nugatory." We believe your proposed statement, "Tablets made in
West Germany or the United States," although closer to
satisfactory by absence of the word "may", is still deficient
since it does no more than indicate the possibility that the
tablets may be of foreign origin.
In contrast to the above situations, your client deals with
only one foreign supplier, West Germany. Accordingly, we can
envision only three possible markings for the completed lens
cleaning kits: tablets from West Germany, tablets from the U.S.,
or tablets from West Germany and U.S. However the possibilities
are reduced by one when you state that, "The products contained
in the [product name] enzymatic tablet boxes would always be
either from the United States or West Germany." In that case,
there are actually only two possible ways to fill a retail box in
regard to the sources of the cleaner tablets, and therefore, only
one label necessary to be prepared to meet marking requirements.
When the tablets are of U.S. origin, no country of origin marking
is necessary.
We are not convinced that it would require "significant extra
time and expense in monitoring the packaging" if you were
required to maintain separate labeling appropriate to the one
situation requiring labeling. We can well appreciate that your
proposed marking would be more cost efficient for your client's
operations, however, without more concrete evidence that
requiring the proper labeling would amount to an economic
prohibition, we cannot grant an exception to the required
labeling.
Separate boxes could be maintained, one disclosing the
presence of West German tablets, the other with no country of
origin necessary. Alternatively, adhesive labels disclosing the
West German tablets to be affixed, or not affixed when
appropriate, to a standard box also appear to be a feasible low-
cost option for your client's situation.
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HOLDING:
Based on the above considerations, your client's situation
does not qualify for an exception to marking based on prohibitive
economic expense. Further, your proposed marking statement is
unacceptable since it does not clearly indicate the presence of
foreign made cleaner tablets. Contact lens cleaning kits, as
described above, must be marked in a conspicuous place as
legibly, indelibly and permanently as possible with an
unequivocal statement as to the presence and foreign origin of
the cleaner tablets.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch