MAR-2-05 CO:R:C:V 731863 KG
Mr. Mark Feigenbaum
Finelle Cosmetics
P.O. Box 5200
137 Marston Street
Lawrence, MA 01842-2808
RE: Country of origin marking of imported plastic cosmetic
compact
Dear Mr. Feigenbaum:
This is in response to your letter of October 3, 1988,
requesting a country of origin ruling regarding future
importations of imported plastic cosmetic compacts. We regret
the delay in responding to your inquiry.
FACTS:
The slimline plastic cosmetic compact is imported empty and
filled in the U.S. with powdered blush made in the U.S. The
sample plastic compact you submitted for examination has the name
"finelle" on the top of the compact. Inside the compact, there is
a mirror on one side and a tray on the other side, in which the
blush and a applicator brush are placed. The size of the compact
is about 3 1/2 inches by 2 1/2 inches.
The compacts are imported for the sole purpose of being
filled and are not sold empty. Further, no cosmetic refills are
sold by you nor are they available in the marketplace for these
compacts. After the blush is fully used up, a consumer who
desired more blush would have to buy a new compact complete with
mirror, blush and applicator.
ISSUE:
Whether imported plastic cosmetic compacts which are filled
in the U.S. with powdered blush must be marked with the country
of origin of the compact.
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. The Court of
International Trade stated in Koru North America v. United
States, 701 F.Supp. 229, 12 CIT (CIT 1988), that: "In
ascertaining what constitutes the country of origin under the
marking statute, a court must look at the sense in which the term
is used in the statute, giving reference to the purpose of the
particular legislation involved. The purpose of the marking
statute is outlined in United States v. Friedlaender & Co., 27
CCPA 297, 302 C.A.D. 104 (1940), where the court stated that:
"Congress intended 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."
An exception from the requirement that the imported article
be marked is authorized by 19 U.S.C. 1304(a)(3)(D) if the marking
of a container of the article will reasonably indicate the origin
of the article. Part 134, Customs Regulations (19 CFR Part 134),
implements the country of origin marking requirements and
exceptions of 19 U.S.C. 1304. Section 134.24(c)(1), Customs
Regulations (19 CFR 134.24(c)(1)), provides that when disposable
containers or holders are imported by persons or firms who fill
or package them with various products which they sell, these
persons or firms are the ultimate purchasers of these containers
or holders and they may be excepted from individual marking
pursuant to 19 U.S.C. 1304(a)(3)(D). The outside wrappings or
packages containing the containers shall be clearly marked to
indicate the country of origin.
In HQ 722170 (July 18, 1983), and HQ 722547 (August 30,
1983), Customs ruled that plastic cosmetic compacts were
required to be individually marked. Customs reconsidered its
position on marking compacts in HQ 723905 (March 20, 1984). In
that ruling, Customs affirmed its view that plastic compacts
imported empty to be filled in the U.S. with U.S. made cosmetics
were not disposable containers subject to 19 CFR 134.24(c)(1)
because compacts are not merely containers, but rather are
substantial, functional articles in their own right. As support
for this position, Customs cited rulings classifying compacts as
"flat goods" under item 706.60 (706.61) of the Tariff Schedules
of the United States (TSUS) rather than "containers ... chiefly
used for the packing, transporting or marketing of merchandise"
under item 772.70, TSUS.
Customs does not regard the sample presented in this case as
a substantial, functional article in its own right. It is not
reasonable to assume that a retail purchaser would buy the
finished product for the compact. Although plastic compacts
could be refilled, this company does not sell refills and refill
blush for this particular compact is not available in the
marketplace. When the blush is used up, the consumer would
dispose of the compact and buy a new compact containing blush.
As offered in the market, this compact is a disposable container
imported empty to be filled in the U.S. Therefore, this item is
subject to 19 CFR 134.24(c)(1) which excepts the compact from
individual marking and only requires that the container in which
the compacts are imported be marked with the country of origin of
the compacts.
Further, on January 1, 1990, the Harmonized Tariff Schedule
of the United States ("HTSUS") superseded and replaced the TSUS.
Plastic cosmetic compacts are now classified under subheading
3923.10.0000, HTSUS, which provides for plastic articles for the
conveyance or packing of goods, of plastics, boxes, cases, crates
and similar articles. See HQ 084714 (July 19, 1989). Since
plastic compacts are now classified as containers, the
justification for our prior position is no longer valid.
HOLDING:
Plastic cosmetic compacts for which refill cosmetics are not
available are disposable containers and when imported empty, are
subject to the marking exception provided in 19 CFR 134.24(c)(1).
Therefore, the compact itself is excepted from marking and only
the container in which the compact is imported must be marked
with the country of origin of the compact. Customs rulings HQ
723905, HQ 722547 and HQ 722170 are modified to conform with this
position.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch
cc: District Director
Boston