MAR-2-05 CO:R:C:V 735336 RSD
Mr. Jens Skannild
Executive Vice President
Team Design
505-A San Marin Drive
Novato, California 94945-1342
RE: County of origin marking requirements for leather
upholstered furniture; sofas; loveseats; chairs; and ottomans;
conspicuous; permanent; 19 CFR 134.41; 19 CFR 134.44; C.S.D.90-41
Dear Mr. Skannild:
This is in response to your letter dated August 25, 1993, and
follow up letter dated April 6, 1994, concerning the country of
origin marking requirements for leather upholstered sofas, chairs,
loveseats, and ottomans. Photographs of the furniture and sample
tags or labels accompanied your submission. We regret the delay
in responding to your request.
FACTS:
Team Design Inc. is an exclusive agent for an Italian
manufacturer of furniture, FLEP S.p.A., which imports furniture
into the United States. The imported furniture consists of leather
upholstered sofas, loveseats, chairs, and ottomans. All these
pieces have wooden frames and tight seats. The furniture comes in
many different styles and designs and different models are
continuously added.
All the furniture items have the same basic construction.
They have wooden frames made in a combination of hardwoods,
softwoods, particle board, and masonite. The seat support system
is webbing which holds up polyurethane foam and Dacron matting.
Finally, the construction is covered on all sides with natural
leather except for the cloth dustcover on the bottom. The entire
article is one piece and there are no loose parts that can be
removed. This construction is known in the furniture industry as
"tight seat."
Each model has a different size, but generally speaking a
chair can be from 33 to 50 inches wide, 33 to 39 inches deep and
32 to 39 inches high. A loveseat is usually between 54 to 73
inches wide, 33 to 39 inches deep and 32 to 39 inches high. A sofa
is usually between 72 to 90 inches wide, 33 to 39 inches deep and
32 to 39 inches high.
The weight of a piece of furniture depends upon the model and
the construction of the frame of the model. A chair is typically
40 pounds; a loveseat is typically 90 pounds; and a sofa is
typically 110 pounds.
You indicate that because of the construction of the
furniture, you would like to mark the furniture by permanently
affixing a paper tag by staples shot into the wooden portion of
the frame. The only way to do this without damaging the article
would be to affix the tag on the underside of the article and
outside of the dust cover.
The proposed tag contains information about the product's
filler material and warns that "UNDER PENALTY OF LAW THIS TAG NOT
TO BE REMOVED EXCEPT BY THE CONSUMER". The tag states the
following:
MADE BY
FLEP S.p.A.
BITONTO - ITALY
Under this writing, below a black line, the words "MADE IN ITALY"
are printed.
You represent that the State of California requires that the
furniture be labeled with certain information regarding the
flammability of materials and fiber content of the filler material.
The California Bureau of Home Furnishings has indicated to you that
a label attached to the furniture by a plastic strip is not
permanently affixed, and they want to have the label stapled to the
frame. Rather than having two labels in two different locations,
you seek to have all information on one label in one location
stapled into the frame of the furniture. It is your position that
the most common way the furniture industry marks upholstered
furniture is by stapling a tag into the frame underneath the piece
of furniture.
ISSUE:
Is the country of origin marking of leather upholstered sofas,
loveseats, ottomans, and chairs by the stapling paper tags into the
frames on their bottoms sufficiently conspicuous to satisfy the
country of origin marking law?
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). C.A.D. 104 (1940).
Part 134, Customs Regulations (19 CFR Part 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304. As provided in section 134.41(b), Customs Regulations
(19 CFR 134.41(b)), the country of origin marking is considered
conspicuous if the ultimate purchaser in the U.S, is able to find
the marking easily and read it without strain.
As a general rule, section 304 marking requirements are best
met by marking worked into the article at the time of manufacture.
For example, it is suggested that the country of origin for metal
articles be die-sunk, molded in or etched. See 19 CFR 134.41.
However, for section 304 marking, the Customs Service normally
permits any reasonable method of marking that will remain on the
article during handling until it reaches the ultimate purchaser.
This includes the use of paper stickers or pressure sensitive
labels and string tags. If paper stickers or pressure sensitive
labels are used, section 134.44, Customs Regulations (19 CFR
134.44), provides that they must be so securely affixed in a
conspicuous place that, unless deliberately removed, they will
remain on the article while it is in storage or on display and
until it is delivered to the ultimate purchaser.
In this case, you seek to mark the country of origin of the
leather upholstered furniture by stapling a paper tag into the
wooden frame underneath the article. Although we believe that this
method of marking would be sufficiently permanent to satisfy 19 CFR
134.41, marking locate underneath the piece of furniture is not in
a conspicuous location. It is our understanding that the tags
would not be visible unless the article of furniture is lifted or
tilted up. In C.S.D. 90-41 (January 18, 1990), Customs ruled that
country of origin marking on the underside of a grand piano was not
in a conspicuous location because a purchaser would be required to
crawl beneath the piano in order to find the marking, making the
mark difficult to locate and read without strain.
Although Customs has permitted upholstered furniture to be
marked with a fabric label affixed on the underside (See HQ 707766
July 29, 1977), we do not believe that such a marking can
considered in a conspicuous location, if the tag is obscured and
the marking cannot be observed without lifting up or tilting a
heavy piece of furniture. Here, a purchaser could not observe the
marking without lifting a heavy piece of furniture, some of which
may weigh 110 pounds. An ultimate purchaser should not have to
greatly manipulate an article or conduct a difficult search to
observe the country of origin marking
You state that based on your observations in furniture stores,
your proposed method of marking underneath the furniture meets the
industry standard of marking for upholstered furniture. We have
no evidence to support this proposition. Furthermore, the Federal
Trade Commission in its guides for the furniture industry at 16 CFR
250.7 states that:
The disclosure of foreign origin, when
required, should be in the form of a
legible marking, stamping, or labeling on
the outside of the furniture and shall be
of such size, conspicuousness and degree
of permanency as to be and remain
noticeable and legible upon casual
inspection until consumer purchase.
We have consulted with a representative of the Federal Trade
Commission, who indicated that a marking on the underside of a
heavy piece of furniture would not be noticeable upon casual
inspection.
We recognize that the furniture is leather upholstered and
that permanent marking such as branding or stamping could mar its
appearance and ruin its aesthetic quality. Accordingly, if the
label cannot be sewn-in, Customs will permit the furniture to be
marked through the use of a string tag or plastic hang tag. The
country of origin marking can be put on a tag stapled into the
frame of the furniture on its bottom side, only if the tag is
visible without having to lift or tilt the piece of furniture. We
have been informed that the sofas, loveseats, ottomans, and chairs
that you are presently importing are being marked with a plastic
string tag. This method of marking would satisfy the
requirements of 19 U.S.C. 1304 and 19 CFR 134.41, so long as the
tag will remain on the article through normal handling until it
reaches the ultimate purchaser unless it is deliberately removed.
We understand that the California Bureau of Home Furnishings
does not consider a hang tag or string tag to be sufficiently
permanent to satisfy their marking requirements regarding
flammability and fiber content of the filler material. However,
the country of origin marking requirements of 19 U.S.C. 1304 are
independent of any other marking provisions provided for in any
other provision of law. See 19 CFR 134.31. This includes other
marking requirements that states may impose. In other words,
California may have additional marking requirements which are
different than the country of origin marking requirements
administered by the Customs Service. California's interpretation
of terms such as permanency, conspicuousness, legibility, etc.
under the law they administer may be quite different from the
Customs Service's interpretations of those terms under 19 U.S.C.
1304. Consequently, it may be necessary to have two labels on the
furniture that you import and sell in California, if one label
cannot satisfy both the California state law requirements and
those under 19 U.S.C. 1304.
HOLDING:
Marking of leather upholstered sofas, loveseats, ottoman,
and chairs by stapling a paper tag into the wooden frame on their
underside, is not in a conspicuous location if these pieces of
furniture must be tilted or lifted to observe the marking. The
marking may be done by a string tag or hang tag attached to the
furniture so long as the tag will remain on the articles until
they reach the ultimate purchasers unless deliberately removed.
Sincerely,
John Durant, Director
Commercial Rulings Division
cc: District Director