CLA-2 OT: RR: CTF: TCM H016234 RM
Michael Hodes, Esq.
Hodes, Keating & Pilon
134 North LaSalle Street, Suite # 1300
Chicago, IL 60602
RE: Revocation of HQ H009022; Country of Origin Marking of Bagel Crisps
Dear Mr. Hodes:
This letter is in response to your August 21, 2007 request for reconsideration of Headquarters Ruling Letter (“HQ”) H009022, dated June 28, 2007, on behalf of Nonni’s Food Company Inc, regarding the country of origin marking of the New York Style® Bagel Crisps®.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation was published on January 15, 2009, in the Customs Bulletin, Volume 43, No. 4. No comments were received in response to this notice.
FACTS:
New York Style Brand® Bagel Crisps® (hereinafter “Bagel Crisps”) are crisp, twice-baked snack foods resembling a thinly sliced bagel, packaged in a laminated paper bag that holds up to 6 ounces by net weight. The bag features a map of New York City over a green background that includes the words "Manhattan," "Hudson River," "New York City Harbor," "Queens," and "Long Island," in black lettering ranging in size from approximately 6 point to 12 point font. A picture of the Bagel Crisps appears around the bottom of the four sides of the bag. Each side contains an informational panel that overlays the map graphic.
The front panel displays the product's trademark, which consists of the words "New York Style Brand®," in approximately 16 point font, printed on a banner that is superimposed over a graphic of a skyline and a rising sun. The trademark is reproduced in approximately one-half the size on the back
panel, above a body of text information about the Bagel Crisps. Included in the text is the statement: “This naturally wholesome snack captures the same delightful taste as the items found in New York City’s traditional neighborhood bakeries.”
One side panel contains the required U.S. Food and Drug Administration "Nutrition Facts" information, a listing of ingredients, an allergy warning, the name and address of a U.S. distributor, and a web address and a toll free number for questions or comments from consumers within the United States. The other side panel contains another block of "Nutrition Information," the "best before" date, a listing of ingredients, an allergy warning, and the names and addresses of two foreign distributors, one in Australia and another in New Zealand. As initially presented, the product was marked on that side panel with its country of origin, "MADE IN BULGARIA," in black, upper-case lettering of approximately 8 point font, over a cream-colored background, below the names and addresses of the foreign distributors and above the "best before" date.
In HQ H009022, U.S. Customs and Border Protection ("CBP") determined that the front, back, and two side panels of the bag must be marked to comply with the requirements of 19 CFR § 134.46 and § 134.47. The importer has since revised the packaging. The product is now marked with its country of origin on both side panels, in black, upper-case lettering of approximately 8 point font, over a cream-colored background. The words “MADE IN BULGARIA” appear directly below the names and addresses of U.S. distributors and directly above the “best before” date on one side, and on the U.S. nutrition label on the other. The origin marks are approximately the same size font as the names and addresses of the foreign distributors. The front and back remain unmarked.
ISSUE:
Does the revised marking of the package of Bagel Crisps satisfy the country of origin marking requirements?
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 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 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." See United States v. Friedlander & Co., 27 C.C.P.A. 297, 302 (C.C.P.A. 1940). Part 134 of the Customs Regulations implements the country of origin marking requirements and exceptions to 19 U.S.C. §1304. Section 134.41(b) of the Customs Regulations (19 CFR § 134.41(b)), mandates that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain.
Of concern here are the requirements of two related provisions of the marking regulations, 19 CFR §§ 134.46 and 134.47.
19 CFR § 134.46 states:
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.
19 CFR § 134.47 states:
When as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the United States or “United States” or “America'' appear, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by “Made in,” “Product of,'” or other similar words, in close proximity or in some other conspicuous location.
The purpose of both provisions is the same, namely to prevent the ultimate purchaser from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. The critical difference between the two provisions is that 19 CFR § 134.46 requires that the name of the actual country of origin appear "in close proximity" to the U.S. reference and in lettering of at least comparable size. CBP has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) on which the name of the locality other than the country of origin appears. See HQ 734164, dated September 23, 1991 (holding that country of origin marking of a book must be on the side or surface containing a non-origin reference). The more restrictive requirements of 19 CFR § 134.46 are designed to alleviate the possibility of misleading an ultimate purchaser with regard to the country of origin of an imported article, if such article or its container includes language which may suggest a U.S. origin (or other foreign locality not the correct country of origin).
By contrast, 19 CFR § 134.47 is less stringent, providing that when as part of a trade name, trademark, or as part of a souvenir marking, the name of a location in the U.S. or "United States" or "America" appears on the imported article, the name of the country of origin must appear in close proximity or "in some other conspicuous location." In such circumstance, no comparable size requirement exists. In other words, the latter provision triggers only a general standard of conspicuousness. In either case, the name of the country of origin must be preceded by "Made in," "Product of," or other similar words.
At issue in this case is whether the revised package complies with the marking requirements with respect to: (1) non-origin references appearing in connection with the trademark; (2) non-origin references appearing in connection with distribution information; and (3) other non-origin references.
Non-Origin References in Connection with the Trademark
The front panel of the Bagel Crisps package displays the product’s trademark, which consists of the words “New York Style Brand®,” in approximately 16 point font, printed on a banner that is superimposed over a graphic of a skyline and a rising sun. The trademark is also displayed on the back panel in about half the size. Previously, in HQ H009022, dated June 28, 2007, addressing the non-origin references that are part of the product’s trademark, CBP determined that, “even under section 19 CFR § 134.47, in order to meet the ‘conspicuousness’ requirement, both the front and back panels must be marked with the country of origin preceded by the words ‘Made in…’, ‘Product of …’ or other similar construction … as relatively conspicuous in color and size as the trademark itself.” CBP cited HQ 735085, dated June 4, 1993, as containing a factually similar scenario.
HQ 735085 discussed the country of origin marking requirements for a 16 ounce bag of frozen vegetables bearing the words “American Mixtures,” a registered trademark, at the top and bottom of the front side, in 63 and 36 point font, respectively. Beneath the trademark, and depending on the contents of the product, the words “Manhattan,” “San Francisco,” or “California” were printed in approximately 27 point font, followed by the word “Style” in approximately 9 point font. On the back of the package, the location name (e.g., “San Francisco”) appeared in approximately 18 point font and in 4 other locations, in approximately 6 point font. The words “American Mixtures” appeared again on the back side, in approximately 6 point font, in 3 locations. Also on the back side, the product was marked with its country of origin, “PRODUCT OF MEXICO,” in black ink lettering of approximately 6 point font, over a dark green background,
and as the fifth out of six lines in a block of text indicating ingredients, distribution information, and dietary fiber content. In total, CBP counted at least 20 non-origin references. There, we found that, per 19 CFR § 134.47, “the prominence of the ‘American Mixtures’ name [was] such, that the country of origin marking was not conspicuous unless it appear[ed] on the front side of the retail package.” Upon review, we now find HQ 735085 to be distinguishable from the instant case.
Our rulings have followed the principle that, in determining if a marking is “conspicuous” for purposes of 19 CFR § 134.47, it is necessary to consider the context in which it appears. See HQ 735085. For example, in HQ 562481, dated October 28, 2002, we determined that cigarette cartons bearing the trademark “United King Size American Blend” on the front and back side, and marked with the country of origin in contrasting ink on the lower left corner of a side panel, satisfied the requirements of 19 CFR § 134.47 because “the marking is separated from the other product information in such a way that it may easily be located and read by a potential purchaser.” Likewise, in HQ 559748, dated June 12, 1996, we held that a wooden box of cigars containing the trademark “Zino Relax Sumatra” on the top, front, and two side panels, and marked with the country of origin on the bottom panel, was marked in a conspicuous location because “an ultimate purchaser may easily manipulate the cigar box to reveal the … country of origin marking …”
We note that in HQ 735085, CBP required that a bag of vegetables be marked in an “unusual” location, i.e., on all panels, and not only on the back side of the bag, as previously authorized under HQ 731830, dated November 21, 1988, because the country of origin mark was difficult to discern and it was surrounded by 20 non-origin references. Conversely, in this case, the product is marked with its country of origin in a place where the ultimate purchaser can notice from a casual inspection and is likely to consult, i.e., next to the nutritional information on one side panel and the “best before” freshness date on the other. The markings are easily distinguishable from the surrounding material because they appear in contrasting black lettering over a cream color background, in upper case font, and in a size comparable to that of the foreign distributors’ information. Based on the foregoing, we find that the revised package of Bagel Crisps is marked in a conspicuous location as required by 19 CFR § 134.47.
Non-Origin References in Connection to Distribution Information
The bag of Bagel Crisps contains the name and address of a U.S. distributor in approximately 8 point font on one side panel, and the names and addresses of distributors in Australia and New Zealand in approximately 8 point font on the other. CBP applies the requirements of 19 CFR § 134.46 to distribution information containing non-origin references. See T.D. 97-72, dated August 20, 1997 ("CBP agrees that [non -origin] references made in the context of a statement relating to any aspect of production or distribution of products ... are misleading to the ultimate purchaser ... and would still require the country of origin marking in accordance with section 134.46 ..."). Therefore, the country of origin marking must appear in close proximity to the non-origin references, and in lettering of at least a comparable size. The revised package is marked with the country of origin on both side panels in upper case lettering of approximately 8 point font, a size comparable to that of the non-origin distribution information. We find this marking to be in compliance with the requirements of 19 CFR § 134.46.
III. Other Non-Origin References
The bag of Bagel Crisps contains other non-origin references, specifically, a map of New York City that underlies the package and displays the words “Manhattan,” “Hudson River,” “New York City Harbor,” “Queens,” and “Long Island,” and the phrase “[T]his naturally wholesome snack captures the same delightful taste as the items found in New York City’s traditional bakeries …” on the back panel. You submit that these non-origin references do not trigger the requirements of 19 CFR § 134.46 because they are decorative and are not likely to mislead or deceive the ultimate purchaser as to the origin of the goods.
CBP has consistently ruled that non-origin geographical references on imported articles do not trigger the requirements of 19 CFR § 134.46 if they appear in a context that is not likely to confuse the ultimate purchaser as the product's country of origin. For example, in HQ 559712, dated July 11, 1996, we ruled that the word "Arizona" embroidered on the front right chest of a woman’s imported pullover did not trigger the special marking requirements of 19 CFR § 134.46 because the word "Arizona" "is used as a decoration of the shirt" and "would not reasonably be construed to indicate the country of origin of the article." Similarly, in HQ 732412, dated August 29, 1989, we found that the placement of the word “Kansas” on different parts of imported jeans was “built into the garment's design” and “would not mislead or deceive the ultimate purchaser or in any way connote that ‘Kansas’ is the place of manufacture.” Likewise, in HQ 734562, dated August 12, 1992, we found that an imported nylon soccer bag that contained the words “Charleston, MA” printed on the fabric label and the phrases “USA 94” printed on the top, “USA Umbro 1994” printed on the side panels, and “94 to America” printed on the bottom of the bag, did not trigger 19 CFR § 134.46 because “such marking was used as a symbol or decoration and would not be reasonably construed as indicating the country of origin of the article.”
Similarly, in this case, we find that the non-origin references on the Bagel Crisps package are part of the marketing concept associated with the product’s brand, “New York Style Brand®,” and would not likely mislead or deceive the ultimate purchaser as to the origin of the product. To wit, except for the word “Manhattan,” the locations named on the map that underlies the package are not easily discernable. The words “Hudson River” are mostly obscured by the crease in the packaging. “Queens” can only be read if one opens the package. “Long Island” is obstructed by the U.S. nutritional facts label on the side panel. “New York City Harbor” is printed in a faint and very small font. Moreover, the phrase “captures the same delightful taste as the items found in New York City’s traditional bakeries” does not suggest origin. It is a figure of speech. Taken together, and considering that the country of origin marking is displayed in a conspicuous location on the package, we conclude that 19 CFR § 134.46 is not triggered.
HOLDING:
On the basis of the information and samples submitted, we find that the revised Bagel Crisps package satisfies the marking requirements of 19 CFR § 134.46 and 19 CFR § 134.47.
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 CBP officer handling the transactions.
EFFECT ON OTHER RULINGS:
This ruling revokes HQ H009022, dated June 28, 2007.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division