MAR-2 OT:RR:NC:2:231
Mr. Antonio Garcia
Malgor & Co., Inc.
P.O. Box 366
Catano, PR 00963
RE: THE COUNTRY OF ORIGIN MARKING OF CANNED PERUVIAN ANCHOVIES.
Dear Mr. Garcia:
This is in response to your letter dated February 12, 2010 requesting a ruling on whether the proposed labeling of certain canned Peruvian anchovies is acceptable. A color image of what appears to be a printed paperboard folding carton, of a kind used to package small, individual retail cans of seafood, was submitted with your letter for review.
One panel of the carton displays a picture of several small, headless fish, accompanied, in the upper right corner, by the words “SMALL SARDINES IN OIL.” In addition, the lower left corner of the same panel bears the words “PERUVIAN ANCHOVY,” in smaller, less prominent lettering. The opposite panel has a similar layout, but the two phrases identifying the product are in Spanish, i.e., “SARDINILLAS EN ACEITE” and “ANCHOAS PERUANAS”. (In New York Ruling N094355, this product, species Engraulis ringens, was classified in subheading 1604.16.2000, Harmonized Tariff Schedule of the United States, which provides for prepared or preserved anchovies, in oil, in airtight containers.) One of the end flaps bears the words “Distributed by Malgor & Co., Inc., Catano, PR 00962.” On the same end flap, below and to the left of the distributor information, the words “Product of Peru / Producto de Peru” also appear, in lettering that is larger and bolder than that of the reference to Catano, PR. The carton is also printed, in both English and Spanish, with other information, including brand name, nutrition facts, ingredients and net weight. The ingredients listed are “anchovy, vegetable oil and salt.”
The marking statute, section 304, 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 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.
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 in the U.S. is able to find the marking easily and read it without strain.
With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.
Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases 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, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, 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.
In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears.
The proposed marking of the imported retail packages of Peruvian anchovies, as described above, satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is an acceptable country of origin marking for the imported goods.
Determinations regarding the acceptability of other aspects of the proposed labeling, such as product identification and terminology, use of foreign languages, and nutritional information, are under the jurisdiction of the U.S. Food and Drug Administration (FDA). We suggest that you contact that agency for further guidance. You may contact the FDA at either of the following locations:
Food and Drug Administration
10903 New Hampshire Ave.
Silver Spring, MD 20993-0002
Telephone: 1-888-463-6332
Website: www.fda.gov
Division of Import Operations & Policy
Food and Drug Administration
5600 Fishers Lane
Rockville, MD 20857
Telephone: (301) 443-6553
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Nathan Rosenstein at (646) 733-3030.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division