MAR-2-05 CO:R:C:V 731830 jd
Richard D. Maltzman, Esq.
650 California Street
San Francisco, California 94108
RE: Country of origin marking requirements for frozen
produce packages
Dear Mr. Maltzman:
This is in reply to your submission of May 9, 1988,
requesting a ruling regarding the conspicuousness of country of
origin markings on packages of imported frozen produce. You
submitted numerous samples which you believe bear marking that
is neither conspicuous nor easily found. Further, you assert
that these packages reflect industry-wide practice.
FACTS:
You represent three frozen food packing companies and those
companies are supported by two union locals in this request.
Pursuant to { 177.1(c), Customs Regulations (19 CFR 177.1(c)),
these companies, as domestic packagers of frozen produce, have
a direct and demonstrable interest in the question of country
of origin marking of imported produce.
You have requested a ruling that, to meet the requirements
of conspicuousness, the country of origin marking must appear
on the front panel of the package, be in lettering at least as
prominent as the lettering of the product description and/or
appear in a typestyle or color vividly contrasting with the
rest of the front panel.
Examination of the numerous samples of packages and labels
you submitted reveals that all bear country of origin marking;
16 on the rear panel, 5 on the bottom panel (boxes) and 1 on
the front panel. On the samples with marking on the bottom or
front panel, the marking is displayed in close proximity to an
expiration date.
ISSUE:
Must country of origin marking on packages of imported
frozen produce appear on the front panel, be in lettering at
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least as prominent as the lettering of the product description
and/or appear in a typestyle or color vividly contrasting with
the rest of the front panel to be considered conspicuous?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19
U.S.C. 1304), requires that unless excepted, every article of
foreign origin (or its container) imported into the United
States 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 the English name of the country of origin of
the article.
Section 134.46, Customs Regulations (19 CFR 134.46),
requires that in any case in which the words "U.S.", or
"American", the letters "U.S.A.", any variation of such words
or letters or the name of any city or locality in the U.S., or
the name of any foreign country or locality other than the
country or locality in which the article was manufactured or
produced appear 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 comparable size,
the name of the country of origin preceded by "Made in",
"Product of" or other words of similar meaning.
Section 134.41(b), Customs Regulations (19 CFR 134.41(b)),
states in reference to country of origin markings, "The
ultimate purchaser in the U.S. must be able to find the marking
easily and read it without strain."
In defense of your interpretation of the word
"conspicuous", you rely on the definition of the word as
derived from dictionaries, interpretation of the word in
situations subject to the Uniform Commercial Code and Customs
Service Decision 86-5, concerning the conspicuousness of
marking on athletic footwear.
We believe the proper sources for defining the word
"conspicuous" are the statute itself, the regulations issued
thereunder and court decisions made in light of both of these.
The use of dictionary definitions would be necessary and proper
only in the absence of these other sources. In addition, we
note the lack of any Congressional action to modify the statute
in any way that would result in your interpretation of
"conspicuous". Our interpretation and application of 19 U.S.C.
1304 has been well known for many years.
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You have pointed to C.S.D. 86-5 (20 Cust. B. & Dec. No.1 at
11), as an analogous situation which supports your request.
That ruling concerned country of origin marking requirements on
athletic footwear and shoe boxes displaying symbols associated
with a country other than the country of origin. However, you
have not alleged, nor would the samples submitted support any
such allegation, that the packages of frozen produce display
flags or other symbols unmistakably associated with a country
other than the country of origin. You do however refer to
"brand names and package designs of long-standing U.S. consumer
familiarity." Customs does not believe that brand names or
package designs rise to the level of symbols such as flags. To
agree otherwise would raise the Green Giant on a par with Uncle
Sam as representative of the United States.
In that ruling Customs stated, "We believe that the
presence of symbols associated with a country other than the
country of origin may mislead the ultimate purchaser as to the
country of origin. This is especially true where the foreign
symbols are more readily visible than the country of origin
marking." In that case Customs was concerned with a British
flag prominently displayed on the top of a shoe and the shoe
box lid was a reproduction of the British flag, and with an
American flag appearing on the side of a shoe and the shoe box
lid was a reproduction of the American flag. Customs held:
"Due to the presence of symbols associated with a country other
than the country of origin on the shoe and/or the shoe box, the
country of origin marking at the base of the tongue or inside
the heel is not conspicuous. This defect would be cured by an
additional permanent country of origin marking on the outside
of the box which is: (1) preceded by the words "Made in" or
"Product of"; (2) placed either on the top of the lid or the
side of the box-preferably on the side of the box containing
information about the size and style of the shoe; and (3) in
lettering at least 1/8 inch high."
The samples you submitted do not display any symbols
associated with countries. Therefore, there are no additional
factors which negate the sufficiency of the marking which does
appear on the packages. Also, in the shoe ruling where there
were determined to be misleading symbols, the corrective
measures prescribed did not go so far as to require marking the
same size as the symbols, nor were contrasting colors or
typestyles mandated.
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You also rely on cases decided under the Uniform Commercial
Code (UCC). The UCC has defined the word conspicuous in
various contexts, e.g., warranty disclaimer cases.
The case of Pabrini, Inc. v. U.S., CIT Slip Op. 86-21,
reported at 20 Cust. B. & Dec. No. 12, concerned the country of
origin marking of umbrellas given as gifts to race track
patrons. The court broke its decision into two segments-
deciding who was the ultimate purchaser of the umbrellas, then
deciding if the country of origin labels were displayed in a
conspicuous place. In determining that the race track patrons
were the ultimate purchasers of the umbrellas the court made
reference to the UCC in stating that a single consideration
could be used to support two promises. Therefore, the race
track patrons could, for purposes of the marking laws, be
considered the ultimate purchasers even though the umbrellas
were not the subject of a separate transaction.
In deciding whether or not the label on the umbrella was
conspicuous, the court cited { 134.41(b), Customs Regulations
(19 CFR 134.41 (b)), which states that, "The ultimate purchaser
in the United States must be able to find the marking easily
and read it without strain." The court approved of these
criteria because in deciding that the umbrella label was not
conspicuous it stated, "The Court finds as a matter of fact
that the small label cannot be seen easily and without strain."
It was apparently unnecessary to go beyond the statute and the
regulations issued thereunder to interpret the word
"conspicuous". Further, no resort to the UCC was made in
defining "conspicuous" even though the court was aware of the
UCC and used it elsewhere in its deliberations.
We are of the opinion that all the samples submitted are in
compliance with marking requirements. Consumers are familiar
with the industry practice of displaying nutritional
information and an expiration date on food products such as
packages of frozen produce. As these dates and nutritional
data are conspicuous on packages, country of origin marking
displayed in close proximity to such dates or data is
conspicuous as well, i.e., it is easily found and read without
strain, and satisfies marking requirements. Further, Customs
believes that allowing country of origin marking to be stamped
on with an expiration date facilitates compliance with the
marking laws since it allows packers to have a small
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number of standard packages with space left available for
imprinting information unique to the package.
HOLDING:
Country of origin marking on packages of imported frozen
produce need not appear on the front panel of the package, be
in lettering at least as prominent as the product description
and/or appear in a color or typestyle vividly contrasting with
the rest of the front panel to be considered conspicuous and
therefore in compliance with 19 U.S.C. 1304.
Sincerely,
John Durant
Director
Commercial Rulings Division