MAR-2-05 CO:R:C:V 734101 AT
Mr. Richard G. Seley
Rudolph Miles & Sons, Inc.
4950 Gateway East
P.O. Box 144
El Paso, Texas 79942
RE: Country of origin marking requirements for imported toys
packaged in plastic eggs and dispensed through vending
machines; 19 CFR 134.26
Dear Mr. Seley:
This is in response to your letter dated May 14, 1991,
amending your original ruling request dated March 26, 1991, on
behalf of your client L.M. Becker & Co., Inc., requesting a
binding ruling on the country of origin marking for imported
toys.
FACTS:
Your client L.M. Becker & CO., Inc., intends to import small
toys made in Hong Kong, China or Taiwan. Each toy will be
individually marked to indicate its country of origin. After
being imported, L.M. Becker then intends to export these same
items to Mexico for packaging in U.S. origin plastic containers,
for final importation into the U.S. You state that the small
toys are always packaged in plastic containers and are always
sold randomly through vending machines. Two samples of your
client's product, the way they would be imported from Mexico,
ready for retail sale, have been submitted with your letter. The
first sample is a blue plastic toy gyroscope approximately 1 1/2"
in diameter which is marked with the words "Made in China". The
gyroscope is packaged in a orange plastic container which is in
the shape of an egg. The second sample is a metal animal pin
approximately 1" in length which is marked with the words "Hong
Kong" and packaged in a clear plastic container also in the shape
of an egg.
You assert that L.M. Becker is concerned because potential
purchasers of the small toys do not have the opportunity to
remove the item form the vending machine and its plastic
container to examine the article until after having made their
purchase decision. Accordingly, L.M. Becker proposes to have a
conspicuous notice placed on the outside of every vending machine
in the field and on all new machines sold or leased in the future
listing those countries in which the small toys are made in.
This sign would be affixed next to the sign that tells a
potential consumer what coin is required to activate the
particular machine. Under this arrangement, L.M. Becker requests
that it be allowed to import its product from Mexico without a
country of origin marking on the plastic egg container.
L.M. Becker also states that its policy is to only sell
these small toys to authorized "Toy 'N Joy" distributors and
wholesalers, and therefore it could assure that all machines
containing its product would have the proposed notice
conspicuously attached to the vending machine through the
cooperation of those distributors and wholesalers.
A mock up of the proposed sign was also submitted with your
letter. The sample notice is designed in the shape of a
rectangle. The sign states that "The Toys Contained In This
Machine Are Marked With The Country Of Origin, And May Be Made In
One Or More Of The Following Countries:" Below these words the
names of the following countries are printed in this manner:
Hong Kong Taiwan China
ISSUE:
Does marking the country of origin of the imported toys on
the toys themselves along with an origin statement on the vending
machine rather than the plastic egg container satisfy the
requirements of the country of origin marking requirements under
19 U.S.C. 1304 and 19 Part 134?
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 its 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. Friedlander & Co., 27
C.C.P.A. 297 at 302; C.A.D. 104 (1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and the 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.
Disposable containers or holders of imported merchandise, which
are sold without normally being opened, should be marked to
indicate the country of origin of their contents (19 CFR
134.24(d)(2)). Section 134.32(d), Customs Regulations (19 CFR
134.32(d)), provides that articles may be excepted from
individual marking provided marking on the container will
reasonably indicate the country of origin of the article.
In this case, the small toys are individually marked with
the country of origin of which the article was made in whether it
be Hong Kong, Taiwan or China. However, due to the particular
nature of theses articles, in that the toys are enclosed in
plastic egg containers and purchased through vending machines,
the ultimate purchaser will not be able to find the marking
easily and read it without strain prior to purchase, as required
under 19 CFR 134.41. Ordinarily the plastic egg containers would
have to be marked to indicate the country of origin of their
contents (19 CFR 134.24(d)(2)). However, we agree with L.M.
Becker's position that marking the plastic egg container will not
satisfy the requirements under 19 CFR 134.41 due to the
particular nature of this article and that the vending machine is
simply the only container a potential ultimate purchaser can
examine prior to purchasing the article. In HQ 732122 (January
26, 1990), Customs ruled that small rubber balls presented for
sale to ultimate purchasers in a vending machine may be excepted
from individual marking pursuant to 19 CFR 134.32(d), provided a
display card visible through a window of the vending machine is
imprinted in a conspicuous location with the origin of the balls
being dispensed.
Because the imported toys in this case are sourced from
three different countries, it is not possible for the vending
machine to accurately identify the particular country of origin
of each item. However, we find the proposed marking of the
vending machine is acceptable so long as the toys themselves are
marked with their actual country of origin. In this manner, the
ultimate purchaser will be informed of the country of origin in
as good a manner as possible considering the circumstances. In
such case, an additional marking of the country of origin on the
plastic eggs, which would not be visible prior to purchase, is
not required.
HOLDING:
Plastic egg containers enclosing individually marked small
toys imported from Mexico which are presented for sale to the
ultimate purchasers in vending machines are not required to be
marked to indicate the country of origin of their contents (toys)
provided the toys are individually marked and the district
director is satisfied that a vending machine will be marked as
proposed. Certification by L.M. Becker as per section 134.26,
Customs Regulations (19 CFR 134.26), that such card will in fact
be displayed, is required.
Sincerely,
John Durant, Director
Commercial Rulings Division