MAR-2-05 CO:R:C:V 734007 RSD
Paula Kochon
Product Manager
Amscan Incorporated
South Road
P.O. Box 587
Harrison, New York 10528-0587
RE: Country of origin marking of cardboard backer cards for
packages of paper napkins; 19 CFR 134.24, 19 CFR 134.46, 19 CFR
134.36(b), disposable containers, packaging, paper napkins
Dear Ms. Kochon:
This is in response to your letter of December 10, 1990, and
your follow up letter sent by fax on December 21, 1990,
requesting a ruling on the country of origin marking requirements
for imported cardboard backer cards used in packages of paper
napkins.
FACTS:
Amscan is a distributor of paper napkins for special
occasions and parties, such as weddings and baby showers. The
napkins have a special design printed on them to indicate the
occasion. The napkins are sold in a package with a clear
cellophane wrap. Each package of napkins contains a cardboard
backer card, which allows the napkin package to stand up on a
shelf. Amscan is planning to import the backer cards from Korea.
The backer cards will be shipped in bulk in cartons which contain
2000 pieces. The outside of these shipping cartons will be
marked made in Korea. The napkins and the cellophane wrap are
manufactured in the U.S. Amscan will package the napkins in the
U.S. utilizing the Korean backer cards. Two sample napkin
packages were received. There is writing on the backer cards in
English and French all of which pertains to the napkins. This
includes a complete description of the product, along with an
indication of the quantity and size of the napkins contained in
the package. The names of a U.S. locality, "Harrison, NY", a
Canadian locality, "Kirkland, Que., Canada", and a town in
England, "Milton Keynes, England" appear on the bottom of the
backer cards. In addition, next to these city names, "Made in
USA," appears on the backer cards. You indicate that the backer
cards will be used solely in the napkin packages and will not be
used for any other purpose and that they will not be sold
separately.
ISSUES:
Do imported cardboard backer cards for packages of paper
napkins have be marked with their country of origin?
Can the cardboard backer cards contain a statement "Made in
USA?"
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. Congressional intent in
enacting 19 U.S.C. 1304 was 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." United States v.
Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR
134.41(b)), mandates that the ultimate purchaser in the U.S. must
be able to find the marking easily and read it without strain.
Section 134.46, Customs Regulations (19 CFR 134.46), requires
that when the name of any city or locality in the U.S., other
than the name of the country or locality in which the article was
manufactured or produced, appears 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 a
comparable size, the name of the country of origin preceded by
"Made in," "Product of," or other words of similar meaning. The
purpose of this requirement is to prevent the possibility of
misleading or deceiving the ultimate purchaser of the article as
to the actual origin of the imported goods.
After reviewing the samples provided, we find that the
cardboard backer cards are part of the product's packaging
material and fall under the container regulations in Part 134,
Customs Regulations. Under these regulations, if the containers
or holders are designed for or capable of reuse after the
contents have been consumed, the consumer purchasing the contents
and not the importer is considered to be the ultimate purchaser
of the containers and the containers must be individually marked
to indicate their own country of origin. This is the case
whether the containers are imported full or empty. For example,
if the imported containers to be filled have a lasting value or
decorative use (e.g. fancy cologne bottles, reusable as flower
vases, mustard jars reusable as been mugs) they must be
individually marked with their own country of origin. See
section 134.23, Customs Regulations. However, if the containers
are disposable, the importer who fills them is considered to be
the ultimate purchaser and the containers are excepted from
individual marking pursuant to 19 U.S.C. 1304(a)(3)(D), and only
the outside wrappings of the packages for the containers shall be
marked to indicate the country of origin. See section 134.24(c),
Customs Regulations. Disposable containers are defined as the
usual ordinary types of containers or holders which are
ordinarily discarded after the contents have been consumed (e.g.
cans, bottles, paper bags, etc.). See section 134.24(a), Customs
Regulations.
We are of the opinion that the imported cardboard backer
cards in question are disposable containers within the meaning of
the above regulations since these cards have no lasting value to
the ultimate purchaser of the paper napkins and will be discarded
when the product is consumed. Provided that the backer cards
will be used only by Amscan for the packaging of its napkins;
they are excepted from marking pursuant to 19 U.S.C.(a)(3)(D) and
section 134.24(c), Customs Regulations; only the outside of the
cartons for the backer cards must be marked to indicate the
country of origin of the backer cards.
The question remains, however, whether or not the exception
is applicable if the backer cards are marked "Made in USA" and
with the names of various cities in the U.S., Canada and England.
Generally, when 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, the requirements of 19
CFR 134.46 would apply. In addition, section 134.36(b), Customs
Regulations (19 CFR 134.36(b)) provides that an exception shall
not apply to any article or retail container bearing any words
letters, names, or symbols described in 19 CFR 134.46 or 19 CFR
134.47 which imply that any article was made or produced in a
country other than the actual country of origin.
Customs has held that disposable containers imported empty
to be filled by a domestic company may be excepted from
individual marking pursuant to 19 U.S.C. 1304(a)(3) (D) and 19
CFR 134.24(c)(1), provided the address that appears on the
container is clearly in reference to the contents of the
container and not to the container itself. See HQ 731698, June
26, 1989 and HQ 716243, June 25, 1981. This is the case here.
Since all the writing on the backer cards describes the paper
napkins in the package and not the backer cards; it is clear that
the addresses thereon do not pertain to in any way the backer
cards. Therefore, we find 19 CFR 134.36(b) is not applicable and
that the requirements of 19 CFR 134.46 do not apply. Similarly,
because all the writing on the backer cards pertains to the
napkins, the ultimate purchasers of the napkins will realize that
statement "Made in USA" concerns the napkins and not the backer
cards. Accordingly, these are not words which imply that the
cards were made or produced in a country other than the actual
country of origin within the meaning of 19 CFR 134.36(b). See HQ
729943, November 13, 1986.
HOLDING:
The cardboard backer cards for the packages of paper napkins
are part of the disposable containers which will be discarded by
the ultimate purchaser when he/she is finished using the product.
Therefore, pursuant to 19 CFR 134.24 the individual cards are
excepted from marking; only the outside of the cartons in which
they are imported must be marked with their country of origin.
Because the addresses on the backer cards refer to the contents
of the package, the napkins, and not to the backer cards
themselves, the requirements of 19 CFR 134.36(b) and 19 CFR
134.46 are not invoked. The "Made in USA" statement which
clearly refers to the origin of the contents and not the
container can remain on the backer cards, so long as the Federal
Trade Commission has no objection. This ruling is applicable
provided that the district director at the port of entry is
satisfied that the backer cards will be used only in the manner
described in this ruling.
Sincerely,
John Durant, Director
Commercial Rulings Division