OT:RR:CTF:VS HQ H235556 HvB
Phillip Mason
Traders Customs Brokerage Ltd.
2359 Mississauga, Ontario
L5J 4S9
RE: Marking; Aerosol Cans Filled for Consumer Sale as Single Units; Ultimate Purchaser; 19 CFR 134.26; 19 CFR 134.46
Dear Mr. Mason:
This is in response to your request for a binding ruling on behalf of K-G Spray Pak Inc. (“K-G Spray Pak”), concerning the country of origin marking of steel cans filled with aerosol sealant or janitorial cleaners which are sold as individual units to retail consumers. You submitted two samples of empty cans without labels and photographs of the proposed labels for our consideration.
FACTS:
The articles at issue range in sizes from seven to sixteen ounce sized cans. K-G Spray Pak fills aerosol cans in Canada with a mixture (either a sealant or a cleaner) and then ships the cans to a consignee in the United States in cartons. The country of origin marking “Made in Canada” is permanently printed on both the bottom of each can and on the outer shipping carton. You state that both the cans and the aerosol mixture are of Canadian origin. The aerosol cans are imported into the U.S. in one of the following scenarios.
In the first scenario, the cans at issue are filled with a sealant. Prior to importation, the manufacturer permanently lithographs a label onto each can. The label is printed with the name of the contents, directions for its use, warnings and other information and the Distributer’s United States address. The label does not indicate that the product is of Canadian origin.
In the second scenario, the cans are filled with a janitorial cleanser. After the aerosol can is imported into the United States, the consignee or its U.S. customer glues a label to the can. The label is made of paper and is sized to the circumference of the can. Once affixed to the can by glue, only the top and bottom of the metal can are visible. The label is printed with the name of the contents, directions for its use, warnings and the Distributer’s U.S. address. As in the first scenario, the label does not indicate that the product is made in Canada.
In both scenarios, the cans will be repacked after importation.
ISSUE:
Whether the aerosol cans filled with sealant and janitorial cleanser satisfy
the marking requirements of 19 U.S.C. § 1304 and 19 CFR Part 134?
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 its 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.” See United States v. Friedlander & Co., 27 C.C.P.A. 297, 302 (1940).
The first question in this case is the identity of the ultimate purchaser of the imported aerosol cans. In each scenario presented, since the cans are to be sold as individual units at retail, the ultimate purchaser is the retail consumer.
Moreover, in both scenarios, the labels are printed or lithographed with the Distributor’s U.S. address. The determinative issue, therefore, is whether the U.S. distributor’s address on the label would mislead or confuse the ultimate purchaser as to the product’s country of origin. Customs Regulations, 19 C.F.R. 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.
The requirements of 19 C.F.R. § 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 may suggest U.S. origin. CBP has ruled that in order to comply with the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) on which the name or locality other than the country of origin appears. See HQ H016234, dated March 3, 2009. Here, the U.S. address appears on the back of the cans and the country of origin appears on the bottom of the cans. While the text “Made in Canada” on the bottom of the cans is legible, and positioned so that it would not be covered or concealed by the labels, we do not find it to be conspicuous.
On the issue of whether a bottom location of an article or its container for a country of origin marking is conspicuous, CBP has taken a common sense approach. Here, all pertinent information concerning the product is contained on front or side locations or panels. Therefore, the marking on the bottom location is insufficient. See HQ 734693, dated October 30, 1992; See also HQ 732579, dated March 27, 1990.
Furthermore, in HQ 731587, dated November 16, 1989, CBP ruled that the pots which were marked on the bottom of the pot and were imported filled with soil were not conspicuously marked because a consumer was unlikely to pick up a pot filled with soil to look at its bottom. Similarly, in HQ 562215, dated August 24, 2001, CBP ruled that beer sold in cartons of 24 12-ounce bottles, was not properly marked because a consumer would be unlikely to inspect the bottom panel location. In this instance, given the label’s potentially misleading U.S. address, we believe that the proposed labels would dissuade the consumer to look for the product’s country of origin. Thus, the label must indicate the article’s Canadian origin in close proximity and in comparable size to the U.S. distributor’s address. See, e.g., HQ H105329, dated August 21, 2010. Accordingly, we find that the aerosol cans as currently marked on the bottom of the can do not satisfy the country of origin requirements of 19 U.S.C. 1304 and 19 CFR 134.41.
In addition, under both scenarios, since the aerosol cans will be labeled in the second scenario and repacked after their release from CBP custody in both scenarios, the certification requirements of 19 CFR 134.26 are applicable. Section 134.26(a) provides that if an article subject to country of origin marking is intended to be repacked after its release from Customs custody, or the district director having custody of the article has reason to believe that the article will be repacked after its release, the importer shall certify to the district 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..."; or (2) that if he does not repack the article he will give notice to subsequent purchasers or repackers of their obligations under section 19 U.S.C. 1304 and Part 134, Customs Regulations.
The procedures set forth at 19 CFR 134.26 apply only to articles which are legally marked at the time of importation; i.e., marked so as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Thus, an importer may not import unmarked or improperly marked goods and secure their release by executing a certification pursuant to 19 CFR 134.26.
This provision does not apply to articles imported in bulk, not individually marked, which are to be repackaged after importation for retail sales to ultimate purchasers, unless they are otherwise excepted from country of origin marking. If the articles are not legally marked at the time of importation, the presentation to Customs of the certification and notice to subsequent purchasers or repackers specified in 19 CFR 134.26 will not serve to satisfy the importer's obligations under 19 U.S.C. 1304 and Part 134, Customs Regulations. See 734230 (November 20, 1991) and HQ H075335 (October 16, 2009).
HOLDING:
By application of 19 USC § 1304, 19 CFR 134.26 and 134.41, the subject aerosol cans must be marked as products of Canada on the outermost container in which they are imported and on each label of the cans. Under 19 CFR 134.46, the labels which feature a U.S. address must be marked “Made in Canada” conspicuously in close proximity to the U.S. address and in comparable font. The requirements of 19 CFR 134.26 are applicable.
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,
Ieva K. O’Rourke, Chief
Tariff Classification & Marking Branch