Mar-2-05 RR:TC:SM 559753 AT

Paul E. Linet, Esq.
Law Offices of Paul E. Linet
360 Massachusetts Avenue, Suite 105
Acton, Massachusetts 01720

RE: Country of origin marking of poufs imported from various foreign countries; conspicuous; close proximity; U.S. locality; 19 CFR 134.46; C.S.D. 92-33; HQ 734491; HQ 734469: refers ultimate purchaser to look for origin in another location

Dear Mr. Linet:

This is in response to your letters dated February 27 and July 26, 1996, on behalf of Lever Brothers Company ("Lever"), requesting a ruling on the country of origin marking of imported poufs which are repackaged in the U.S. into body wash kits. Sample body wash kits (Caress Moisturizing Body Wash and Pouf, Dove Moisturizing Body Wash and Pouf, and Lever 2000 Body Wash and Pouf) and the retail containers in which the poufs are repackaged were submitted with your letters.

FACTS:

You state that Lever intends to import poufs from various foreign countries to be repackaged in the U.S. with various U.S. origin body wash products (Caress, Dove or Lever 2000) to be sold at retail in the U.S. as body wash kits. According to your submission, the foreign origin poufs are individually marked with their origin by means of a label/tag marking at the time of importation. After importation, each individually marked pouf is repackaged into a container by Lever in the U.S. with one disposable container of a U.S. produced body wash product. You state that the resulting individual "kits" are sold at retail in the U.S. in unsealed containers (i.e. containers that may be opened and examined by the ultimate purchaser, should he/she elect to do so at the point of sale).

Lever proposes to print the words "Poufs are Imported and Individually Marked" on the outside of the unsealed retail containers. You state that the origin statement "Poufs are Imported and Individually Marked" will be placed on the same panel as the company's U.S. address and in comparable print size.

Each of the three sample body wash kits consists of a pouf and a disposable bottle of either Caress, Dove or Lever 2000 body wash. The retail containers are all unsealed. Each of the sample retail containers are marked with the company's U.S. address "New York, NY 10022" either on the side panel (Caress and Dove Body Wash Kit) or on the bottom panel (Lever 2000 Body Wash Kit). Each of the poufs are individually marked with the words "Made in (Country of Origin)" in lettering approximately 4.5 points (a point is approximately .01384 inch or 1/72 of an inch) by means of a paper label affixed to the cord of the pouf. Other consumer information, such as the products name (Caress, Dove or Lever 2000), instructions on how to apply the body wash with the pouf, and the ingredients of which the body wash is made appear on the retail containers.

You contend that since each of the repackaged foreign-origin poufs is properly marked with its country of origin, the proposed marking "Poufs are Imported and Individually Marked" printed on the retail container, in the manner described above, satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

ISSUES: Does the phrase ""Poufs are Imported and Individually Marked" proposed to be marked on the unsealed retail containers of the body wash kits as described above satisfy the country of origin marking requirements set forth in Section 304 of the Tariff Act of 1930, as amended?

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, 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. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)) defines ultimate purchaser as "generally the last person in the U.S. who will receive the article in the form in which it was imported." If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this case, the ultimate purchaser of the poufs is the consumer who purchases the body wash kit at retail.

Are The Poufs Conspicuously Marked With The Country Of Origin?

Section 134.41, Customs Regulations (19 CFR 134.41), provides that 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.

In this case, we find that, as imported, the country of origin marking "Made in (Country of Origin)" which is printed in lettering approximately 4.5 points on a paper label affixed to the cord of the pouf is conspicuous in that an ultimate purchaser could easily find and read the origin marking upon a casual examination of the article.

Are the Repackaged Poufs Conspicuously Marked with the Country of Origin?

As indicated above, after importation Lever intends to repackage the individually marked poufs with U.S. origin body wash products into retail containers which are unsealed. Therefore, Lever must satisfy the repackaging certification requirements set forth in 19 CFR 134.26. 19 CFR 134.26 provides in pertinent part that: If an imported article subject to these requirements is intended to be repackaged in retail containers after its release from Customs custody, or if the port director having custody of the article, has reason to believe that such article will be repacked after its release, the importer shall certify to the port director that: (1) If the importer does the repacking, he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article in accordance with the requirements of this part . . . (Emphasis added).

Since Lever proposes to mark the retail containers with the phrase "Poufs are Imported and Individually Marked" to indicate the country of origin of the imported pouf it must be determined whether this phrase satisfies the marking requirements set forth in 19 CFR Part 134. In determining whether the marking is acceptable, Customs will take into account the presence of words or symbols on an article which may mislead the ultimate purchaser as to the country of origin. Consequently, if the words "United States," or "America," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality other than the country of origin appear on the imported article, special marking requirements are triggered.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that 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 locality 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, 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 section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the imported goods.

The special marking requirements set forth in section 134.46 are triggered by the company's U.S. address "New York, NY 10022" printed on either the side or bottom panel of the retail container. Accordingly, the actual country of origin of the imported poufs must appear "in close proximity" to the U.S. address and in lettering of at least a comparable size. Therefore, another issue presented in this case is whether the marking "Poufs are Imported and Individually Marked" which is to be printed in close proximity (same panel) to the U.S. address "New York, NY 10022" satisfies the country of origin marking requirements of 19 CFR 134.46.

Customs has previously approved country of origin markings which do not designate a specific country of origin in close proximity to the U.S. reference but instead direct the ultimate purchaser to a conspicuous location where the country of origin can be found on the article. For example, in C.S.D. 92-33 (September 2, 1992), Customs determined that the language "See Part Number Label For Country of Origin" printed on stand-alone boxes and outside wrappers containing imported engine parts immediately beneath a U.S. address, was acceptable if the part number label displaying the name of the country of origin was easily visible to the ultimate purchaser. See also, HQ 734491 (April 13, 1992), in which Customs approved the country of origin marking "Contents Imported. See Article for Country of Origin" printed on retail containers where the auto parts were individually marked with their origin.

In this case, you state that the proposed origin statement "Poufs are Imported and Individually Marked" is to be printed on the unsealed retail container in close proximity and at least in comparable size to the U.S. address "New York, NY 10022". Moreover, the actual country of origin of the imported foreign-origin poufs is conspicuously marked on the cord of the pouf and as we determined above, is easy to find and read by an ultimate purchaser upon a casual examination of the article. Therefore, we find that marking the unsealed retail containers in the manner described above will satisfy the requirements of 19 CFR 134.46, provided the poufs are individually marked to indicate their origin.

HOLDING:

The poufs which are imported conspicuously marked with their country of origin and are repacked in the U.S. into unsealed retail containers and sold as body wash kits in the U.S. are subject to the certification and notice requirements of 19 CFR 134.26. Marking the repacked unsealed retail containers with the phrase "Poufs are Imported and Individually Marked" in the manner described above satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134, provided the imported poufs are individually marked to indicate their country of origin. A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Tariff Classification and Appeals Division