MAR-05 RR:TC:SM BLS
Ms. Susanne Staats
Deloitte & Touche LLP
700 Fifth Avenue
Seattle, Washington 98104-5044
RE: Country of origin marking of disposable diapers
Dear Ms. Staats:
This is in reference to your letter dated October 10, 1996,
on behalf of Paragon Trade Brands, requesting a ruling regarding
the country of origin marking requirements of disposable diapers.
FACTS:
The diapers are made and packaged in sealed plastic bags in
Mexico for sale in the U.S. The diapers are not sold on an
individual basis but will be offered for sale to the ultimate
purchaser at retail only in these containers.
The front panel of the individual plastic bag has the name
of the product, the U.S. distributor's name and logo, and the
number and size of diapers contained in a bag. The top panel
shows the name of the product, name and logo of the U.S.
distributor, number and size of diapers, and a warning statement.
The rear panel of the bag includes a pink insert on a white
background which contains information on the product, caution
labels, and use statements. The insert also contains patent
information, a reference to "Jim Henson Muppet Babies", and the
wording "Distributed by Lucky Stores, Inc. Dublin CA 94568." The
submitted sample packaging has the words "Made in Mexico" placed
above the U.S. distributor's name on this rear panel. The side
panel of the bag has the name and logo of the U.S. distributor,
the words "MADE IN MEXICO" stamped in blue ink, and the product
identification number.
- 2 -
You state that Paragon Trade Brands proposes to omit from
the packaging the words "Made in Mexico" on the rear panel, and
leave untouched country of origin and other information presently
shown on the side panel. You believe that this marking would
satisfy the requirements of section 304, Tariff Act of 1930, as
amended (19 U.S.C. 1304).
ISSUE:
Whether the proposed country of origin marking on the retail
packaging satisfies the requirements of 19 U.S.C. 1304.
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 (or its container) 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 the
article. Part 134, Customs Regulations (19 CFR 134), implements
the country of origin marking requirements and exceptions of 19
U.S.C. 1304.
The primary purpose of the country of origin marking statute
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, C.A.D. 104 (1940). 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 is able to find the marking easily and read it without
strain. Section 134.1(d), Customs Regulations (19 CFR 134.1(d))
defines the "ultimate purchaser" generally as the last person in
the United States who will receive the article in the form in
which it was imported.
However, articles for which the containers will reasonably
indicate the country of origin are excepted from marking under 19
U.S.C. 1304(a)(3)(D). For an exception to be granted under 19
U.S.C. 1304(a)(3)(D), the article must generally be imported in
the container and that container must generally reach the
ultimate purchaser unopened. See also 19 CFR 134.32(d). In the
instant case, this exception will apply since the diapers are
sold only at retail in the plastic packaging.
- 3
-
Section 134.46, Customs Regulations (19 CFR 134.46),
requires that when the name or city 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 the stringent marking requirements of 19
C.F.R. 134.46 is to ensure that an ultimate purchaser is not
misled or deceived by a non-origin reference into believing that
the country of origin is other than the actual country of origin
from reading the non-origin reference. In fact, when applying
the stringent marking requirements of 19 C.F.R. 134.46, Customs
takes into account the question of whether the presence of words
or symbols on an imported article or its container are likely to
mislead or deceive the ultimate purchaser as to the actual
country of origin of the article.
Customs has recognized that but for the existence of this
strict regulation, there would be more flexibility in determining
whether a marking is misleading, thus triggering the special
marking requirements of 19 C.F.R. 134.46. For this reason,
Customs published in the Federal Register, 60 Fed. Reg. 57559,
29 Cus Bull 21 (November 29, 1995) a proposal to amend 19 C.F.R.
134.46 to reflect that the special marking requirements of
section 134.46 shall only apply if the non-origin reference is
likely to mislead or deceive the ultimate purchaser as to the
actual country of origin of the article.
Consequently, if Customs concludes that a non-origin
locality reference on an article or its container would not
mislead or deceive an ultimate purchaser as to the actual country
of origin of the imported article, Customs policy is that the
special marking requirements of section 134.46 are not triggered,
and the origin marking only needs to satisfy the general marking
requirements of permanency, legibility and conspicuousness under
19 U.S.C. 1304 and 19 C.F.R. Part 134. See, e.g., Headquarters
Ruling Letter (HRL) 559370 dated February 26, 1996. In this
regard, it is noted that Customs has often distinguished those
cases in which the circumstances were such that reference to a
place other than the country of origin on an imported article
would not confuse the ultimate purchaser as to the true country
of origin, e.g., design/decoration use of locality name, and
finding that the country of origin marking was conspicuous in
that it appeared in a usual place, in lettering sufficient to be
easily found and observed.
- 4 -
You contend that 19 CFR 134.46 is not triggered in this case
because an ultimate purchaser would not be misled or deceived
into believing that the origin of the diapers is the U.S. In
your opinion, the words "MADE IN MEXICO" on the side panel can be
easily seen and read by an ultimate purchaser upon casual
examination of the package. You point out that this marking is
stamped in blue ink, is in a print larger than the print size of
the U.S. distributor, and is of a permanent nature. Further, you
believe that an ultimate purchaser would recognize that the
reference to the U.S. distributor on the rear panel indicates
only the location of such distributor and is not a statement of
origin. You also cite HRL 559370 as a case where Customs found
that 19 CFR 134.46 was not triggered by a U.S. geographical
location.
In HRL 559370, which involved country of origin marking on a
bottle of malt beverage, the words "Imported by Guinness Import
Company, Stamford, CT.", were printed on the back label. In that
case, we found that an ultimate purchaser would not be misled or
deceived by these words into believing that the origin of the
product was the U.S., but rather, where the importer was located.
This was particularly so in view of the fact that the words
"Brewed in Ireland" on the front label could be easily seen and
read upon casual examination of the bottle.
We find that the facts in this case are not analogous to the
facts in HRL 559370. In this regard, we note that the words
"Imported by" (in HRL 559370) unequivocally convey to the
ultimate purchaser that the product is imported and thus from a
country other than the U.S. On the other hand, the words
"Distributed by Lucky Stores, Inc. Dublin, CA..." convey no
definitive information regarding origin, but without conspicuous
and legible country of origin information on the packaging, could
mislead an ultimate purchaser into believing that the U.S. is the
country of origin of the product.
In this regard, we also find that the stamped blue "Made in
Mexico" marking, unlike the "Brewed in Ireland" marking, cannot
easily be seen and read upon casual examination of the package.
In order to read it, the prospective purchaser must turn the
package sideways and look at an area where there is no other
information of interest. Further, it follows the product code so
closely on the same line that the two tend to "run together."
Viewed from the wrong angle or perspective, the wording may thus
appear to be part of, or an extension of, the product code. It
is also noted that this blue printing tends to smudge, affecting
the permanency and legibility of the marking.
- 5 -
Under the circumstances, we find that the words "Distributed
by Lucky Stores, Inc. Dublin CA 94568" on the back panel of the
packaging, without any reference on this panel to the actual
country of origin, may mislead an ultimate purchaser of the
disposable diapers into believing that the country of origin of
the product is a location in the U.S., thereby triggering the
requirements of 19 CFR 134.46.
HOLDING:
The words "Distributed by Lucky Stores, Inc. Dublin, CA
94568" on the back panel of the packaging trigger the
requirements of 19 C.F.R. 134.46. Therefore, country of origin
marking, preceded by the words "Made in" or "Product of" or other
similar words, must appear in close proximity to these words
denoting a U.S. geographical location. Such marking must be in
at least the same size print as the words indicating the U.S.
location and otherwise comply with the statutory requirements of
legibility and permanence.
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 Appeals Division