CLA-2 OT:RR:CTF:TCM H105329 GC
Robert J. Leo, Esq.
Meeks, Sheppard, Leo & Pillsbury, Attorneys at Law
355 Lexington Avenue, Suite 1400
New York City, New York 10017
RE: Country of origin marking of Children’s Benadryl Allergy medicine
Dear Mr. Leo:
This is in response to your request, dated May 10, 2010, requesting a binding ruling on the country of origin marking requirements for Children’s Benadryl Allergy medicine imported by your client, McNeil Consumer Healthcare, Division of McNeil-PPC, Inc.
FACTS:
The instant merchandise is Children’s Benadryl Allergy medicine contained in a four-ounce bottle that will be packaged in a cardboard box. In your ruling request, you provided photocopies of all sides of the box. The country of origin marking is located on the bottom of first panel of the box to the left of the front panel. The country of origin marking text is accompanied by the distribution information. Taken together, the text reads as follows:
Made in Canada/Hecho en Canadá.
Distributed by/Distribuido por: McNeil Consumer Healthcare
DIVISION OF MCNEIL-PPC, INC./UNA DIVISIÓN DE MCNEIL-PPC, INC.
FORT WASHINGTON, PA 19034 USA
© MCN-PPC, INC. 2008
The above text is presented in dark blue five-point Helvetica font set against a pink background. This differs from the drug information located on the same panel, which is set against a white background.
ISSUE:
Does the proposed country of origin marking satisfy 19 C.F.R. §134.46?
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 United States 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 United States, 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, CBP Regulations (19 C.F.R. §134) implements the country of origin marking requirements of 19 U.S.C. §1304. 19 C.F.R. §134.1(b) defines “country of origin” as:
[T]he country of manufacture, production, or growth of any article of foreign origin entering the United States. 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” within the meaning of [the marking regulations]…
A substantial transformation is said to have occurred when an article emerges from a manufacturing process with a name, character, or use which differs from the original material subjected to the process. U.S. v. Gibson Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940); Texas Instruments v. United States, 681 F.2d 778, 782 (1982).
The country of origin marking is considered to be conspicuous if the ultimate purchaser in the United States is able to find the marking easily and read it without strain. See 19 CFR §134.41(b), CBP Regulations, and Headquarters Ruling (HQ) 562832, dated October 23, 2003. On the submitted copies of the label, the words “Made in Canada” can be found and read without strain. The font and font size are clear enough to read the country of origin marking and the dark blue lettering stands out from the pink background.
With respect to the U.S. address located below the phrase, “Made in Canada/Hecho en Canadá”, we note that 19 CFR §134.46, which provides the following:
In any case in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or location in the United States, 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 or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, 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. (Emphasis added).
Section 134.46 is applicable in this case because the U.S. address on the distribution information in question constitutes a reference to a locality other than the country of origin of the merchandise. Accordingly, the country of origin must appear in close proximity to the non-origin reference in at least a comparable size and preceded by “Made in”, “Product of”, or other words of similar meaning.
Initially, we note that the phrase “Made in Canada” adheres to the specific marking language required by 19 C.F.R. §134.46. To satisfy the close proximity requirement articulated in §134.46, the country of origin marking generally must appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears. See HQ 562832; HQ 73416, dated October 20, 1997 (holding that country of origin marking of a book must be on each side or surface containing a non-origin reference). In this instance, the country of origin marking appears on the same panel of the box and three lines from the non-origin reference, and thus satisfies the close proximity requirement of 19 C.F.R. §134.46. Accordingly, we find that the country of origin marking is in close proximity to the non-origin reference for the purposes of Section 134.46.
We also note that while the non-origin reference is written in all capital letters, the font size and style are identical to that of the country of origin marking. In this respect, the instant case to be distinguishable from New York Ruling Letter (NY) D81567, dated September 9, 1998, where CBP held that the marking “Made in Korea” did not satisfy 19 C.F.R. §134.46. In that case, the non-origin reference appeared on the opposite side of a hangtag from the country of origin marking and was printed in capitalized letters of different font size and style. These differences, taken together,
indicated to the ultimate purchaser that the origin of the product was a country other than the correct country of origin. The use of capital letters in this case does not lead to the conclusion that the non-origin reference may mislead or deceive the ultimate purchaser as to the actual country of origin of the article. Due to the close proximity of the country of origin marking to the non-origin reference and the fact that both texts are printed in the same size and style font, we find that the two markings of comparable size for the purposes of 19 C.F.R. §134.46. Accordingly, the product in question adheres to the marking requirements of 19 U.S.C. §1304.
HOLDING:
The country of origin marking on the provided sample Children’s Benadryl Allergy medicine packaging satisfies the conspicuousness requirement of 19 C.F.R. §134.41(b). The special marking requirements of 19 C.F.R. §134.46, which are implicated by the presence of a U.S. address on one panel of the instant box, are also satisfied.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch