CLA-2-90:OT:RR:NC:N1:135
Ms. Judy Sucharitakul
Perryman, Mojonier Company
9710 S. La Cienega Blvd.
Inglewood, CA 90301
RE: The tariff classification and country of origin marking of an eye massager from China
Dear Ms. Sucharitakul:
In your letter dated July 27, 2018, on behalf of FOREO Inc., you requested a tariff classification and country of origin marking ruling. A sample received is being returned.
IRIS™ Illuminating Eye Massager is a battery-powered, handheld massage device. It is one piece device with a smooth surface made of silicone, measuring 12 centimeters in length and 3.5 centimeters in width (across its widest point). The device possesses a handheld base, which contains a “+” button, activation button, a “-” button and a connector for a charging USB cable, and a curved oval ring at the end of it. The massager utilizes alternating T-Sonic™ technology said to be inspired by Asian fingertip tapping eye massage and features two modes, Pure Mode and Spa Mode. It is advertised on FOREO’s website that “Pure Mode replicates a manual massage while Spa Mode recreates a professional beauty treatment by combining tapping with delicate pulsations.”
The massager, a charging USB cable, a manual and warranty booklet, a quick start guide, a plastic sticker on a peel-off backing, and a travel pouch are packaged together in a rectangular cardboard retail box.
The applicable subheading for the IRIS™ Illuminating Eye Massager with the other items in the retail box will be 9019.10.2020, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Mechano-therapy appliances and massage apparatus … Massage apparatus: Electrically operated: Battery powered: Handheld.” The general rate of duty will be free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at https://hts.usitc.gov/current.
You have also requested a ruling on the country of origin marking of the massager.
The rectangular cardboard retail box has a clear plastic window in the right front panel to display the massager within. On the left of the front panel, it shows the FOREO brand name and the product name. The phrases “ALTERNATING T-SONIC™ TECHNOLOGY,” “UNIQUE SILICONE FORM,” “SMART SWEDISH DESIGN,” and “EXCEPTIONAL VALUE” and their respective symbols and explanations appear on the right panel of the box. The bottom of the right panel is the information about the FOREO company, which reads “Sweden-based FOREO aims to empower you to create the world in your own image….” The same contents in a foreign language appear on the left side panel of the box. The back of the box is printed with the FOREO brand name followed by the product name and benefits of using this product in six different languages. On the bottom right is displayed five icons, copyright information in upper case, the European distributor’s name and full address in upper case – “EU DISTR.: FOREO AB, BIRGER JARLSGATAN 22, 114 34 STOCKHOLM, SWEDEN,” the United States distributor’s name and full address in upper case – “US DISTR.: FOREO INC., 3565 S. LAS VEGAS BLVD. #159, LAS VEGAS, NV 89109, USA,” “DESIGNED AND DEVELOPED BY FOREO SWEDEN,” “MANUFACTURED BY FOREO AB,” and the FOREO website address. A product barcode label seals the box crossing the edges of both the bottom left of the back panel and the bottom panel of the box. The contents of the barcode label shown on the bottom left of the back panel include the phrase “Manufactured in China” on top followed by a barcode and a number. This portion of the barcode label is juxtaposed with the information on the bottom right of the box. The phrase “Manufactured in China” is printed in bold. The size of the upper case letters on the bottom right appears to be the same size as the upper case lettering in “Manufactured in China.” The top and bottom panels of the box display the FOREO brand name. In addition, the bottom panel contains another portion of the product barcode label, which includes the product name and a barcode. The massager itself contains a sticker at the bottom, which reads “FOREO AB, BIRGER JARLSGATAN 22, 114 34 STOCKHOLM, SWEDEN” and a number.
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), 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 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. 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 or other than the actual country of origin appears.
In this case, we find that on the back panel of the retail box, the phrase “DESIGNED AND DEVELOPED BY FOREO SWEDEN” and the U.S. and Swedish addresses including the country names trigger the special marking requirements of 19 CFR 134.46. However, the country of origin marking phrase "Manufactured in China" is in close proximity to the phrase “DESIGNED AND DEVELOPED BY FOREO SWEDEN” and the non-origin references and in a comparable size, is legible and permanent, and is easily found and read without strain. Therefore, the country of origin marking in the back panel of the retail box satisfies the marking requirement of 19 CFR 134.46.
In contrast, on the right panel of the retail box, the phrases “SMART SWEDISH DESIGN” and “Sweden-based FOREO” are potentially misleading with regard to the product's country of origin, thus triggering the applicability of 19 CFR 134.46. However, there is no country of origin marking appearing in the panel. Likewise, the sticker on the massager containing a non-origin reference to Sweden also triggers the special marking requirements of 19 CFR 134.46, but there is no country of origin marking on the sticker.
In light of the above, the submitted sample does not satisfy the requirements of 19 CFR 134 and 19 U.S.C. 1304.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 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 Fei Chen at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division