MAR-2-05 CO:R:C:V 732260 jd
Irene F. Bahr, Esq.
127 West Willow Avenue
Wheaton, Illinois 60187
RE: Country of origin marking requirements applicable to imported
whiskey
Dear Ms. Bahr:
This is in reply to your letter of March 23, 1989,
concerning the country of origin marking requirements applicable
to whiskey imported into the United States.
FACTS:
According to your submission your client, a whiskey
manufacturer, wishes to know the country of origin marking
implications of the following three situations:
1. Various whiskeys, e.g., Scotch and Canadian, are imported into
the U.S. in bulk where they are blended and up to 2.5% blenders
by volume are added.
2. The same procedure as #1, but performed at your client's
European location.
3. The same procedure as above, and the government of the
European country wherein the blending took place is of the
opinion the resulting product could not be considered a product
of that country.
ISSUE:
What is the proper country of origin marking of the
products processed and imported in the manner described above?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19
U.S.C. 1304), provides 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 permanently as the
nature of the article (or container) will permit, in such a
manner as to indicate to the ultimate purchaser in the United
States the English name of the country of origin of the article.
-2-
Section 134.1(b), Customs Regulations (19 CFR 134.1(b)),
defines "country of origin" as the country of manufacture,
production, or growth of any article of foreign origin entering
the U.S. Further work or material added to an article in another
country must effect a substantial transformation in order to
render such other country the "country of origin". The
significance of a substantial transformation is evident also in
{ 134.35, Customs Regulations (19 CFR 134.35), which provides
that an article used in the U.S. in manufacture which results in
an article having a name, character, or use differing from that
of the imported article will be considered substantially
transformed, and therefore the manufacturer or processor in the
U.S. who converts or combines the imported article into the
different article will be considered the ultimate purchaser of
the imported article within the contemplation of 19 U.S.C.
1304(a).
A recent court decision involving a substantial
transformation issue is highly analogous to the situations you
have described. In National Juice Products Association v. United
States, 10 CIT 48, 628 F.Supp. 978 (CIT 1986), the Court of
International Trade determined that the blending of orange juice
concentrates, which could include the addition of water, oils and
essences, and pasteurization, was not a substantial
transformation and consequently the origin of all the constituent
concentrates would need to be revealed to ultimate purchasers.
Concerning the blending of whiskeys, we consider the change
in name from "whiskey" to "blended whiskey" to be of no
significance. In regard to character, although whiskey
manufacturers go to great lengths to highlight the subtle
differences between the various blended whiskeys, in a
substantial transformation context, the essence of a blended
whiskey is determined from its constituent parts; both single
type whiskeys and blended whiskeys are alcoholic beverages.
Finally, there is no change in use.
Accordingly, the country of origin marking required of the
blended whiskey referred to in your three situations would be:
(1) the origin of the constituent whiskeys would have to be
revealed; the product could not be considered of U.S. origin, (2)
the origin of the constituent whiskeys would have to be revealed;
the product could not be considered as originating in the
European country where the blending occurred, and (3) the
application of 19 U.S.C 1304 would take precedence over the law
of the foreign country involved. However, the result would be
the same in this instance.
-3-
HOLDING:
The country wherein various whiskeys are blended and a
small volume of blenders added is not the country of origin of
the resulting blended whiskey. The label of such a blended
whiskey must clearly and conspicuously reveal the origin of each
constituent whiskey in the blend. The country in which the
blending took place may be disclosed as long as it not done in a
manner to suggest origin. For example, "Scotch and Irish Whiskey
Blended in Canada", is permissible; "Canadian Whiskey- A Blend of
Scotch and Irish Whiskeys", is not permissible.
Based on a recent phone conversation with a member of my
staff, it was agreed we would not respond to your questions
concerning the Kyoto Convention. You have indicated you have
other sources to answer your questions on that point. Also, we
take this opportunity to mention H.R. 1688, a bill introduced by
Rep. Garcia (D-NY), to amend the Lanham Act to prevent the
admission into the U.S. of articles of imported merchandise that
are labeled with the name of a foreign country in contravention
of the law of that country. Such a law would be of relevance to
the problem being encountered by your client of parties trying to
profit from the reputation of Irish whiskey.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch