MAR-2 OT:RR:NC:3:140
Mr. Kevin W. Leonard
GDLSK
599 Lexington Avenue, 36th Floor
New York, NY 10022
RE: THE COUNTRY OF ORIGIN MARKING OF BODY SPRAY MISTS
Dear Mr. Leonard:
On November 07, 2018, you requested a binding ruling concerning Country of Origin Marking of Body Spray Mists (perfumes and colognes) on behalf of Fantasia Accessories Ltd. The request concerns whether the proposed marking “Product of Singapore” or “Product of Australia” is an acceptable country of origin marking for certain imported Body Spray Mists. A marked sample was not submitted with your letter for review. An image of a product ingredient label was received which contained the phrase “Product of Singapore”. We note, that the label which was provided was at a 200 percent magnification of the actual label.
The five products under review are as follows:
Perfume (Japanese Cherry Blossom – 1 oz.);
Cologne (Midnight Reign – 1 oz.);
Perfume (Twilight Mist – 3.2 oz.);
Cologne (Black – 3.4 oz.); and,
Perfume (Japanese Cherry blossom – 1.7 oz.).
All five products will consist of a single fragrance base which is currently supplied from either Singapore or Australia. The processing performed in China consists of blending that single base with alcohol, water and propylene glycol. The blends will then be packaged in either aerosol spray cans to which propellants will be added or pump spray bottles. The packaging materials will all be of Chinese origin. The blending process alters the viscosity of the fragrances so that they may be applied via a spray mechanism. No chemical reaction, change in structure, or intermixing of fragrance bases occurs during this processing.
You cite several rulings which discuss similar processing of single perfume bases with alcohol, solvents, propellants, and water. In those instances it was determined that no change in country of origin occurred for Tariff purposes.
The dilution and mixing of a single perfume base of foreign origin, with water, alcohol, and propylene glycol, does not effect a change in origin. The propylene glycol although possessing multiple uses in various products, serves as a solvent and a carrier in the instant products. Our research indicates that Propylene glycol is a synthetic organic compound. It is a viscous, colorless liquid which is nearly odorless. Chemically it is classed as a diol and is miscible with a broad range of solvents, including water, acetone, and chloroform. It is used as a solvent for fragrances and preservatives.
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 the imported goods the country of which the goods is the product. Part 134 of the Customs Regulations implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 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.
"Country of origin" is defined in section 134.1(b), Customs Regulations, as the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within the meaning of this part.
A substantial transformation is said to have occurred when an article emerges from a manufacturing process with a name, character, or use that differs from the original material subjected to the process. In determining whether the assembly of parts or materials constitutes a substantial transformation, the issue is the extent of operations performed and whether the parts lose their identity and become an integral part of the new article. While the finished fragrances are made suitable for spraying by diluting the fragrance bases, they retain the same chemical identity and character as the precursor bases. In this case, the changes in concentration and viscosity which occur in China, do not result in a substantial transformation for origin purposes. Therefore, for the purposes of 19 U.S.C. § 1304, it is the single perfume or cologne, fragrance bases, which determine the essential character of the body mist sprays. We agree with your opinion that the essential character remains that of the perfume or cologne fragrance bases; namely Singapore or Australia.
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.
We find that the proposed marking of Body Spray Mists as described above, "Product of Singapore" or "Product of Australia" if printed legibly, clearly, and in a conspicuous place would be considered an acceptable method of marking and would meet the country of origin marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. We reiterate that the image provided was not easily seen and may not meet the terms of the Marking Regulations. However as an actual marked sample was not provided compliance to marking parameters, (i.e.-size, legibility, placement) may need to be assessed at the time of importation of the merchandise.
You also asked whether the subject product would be subject to the additional China duties under the additional duties imposed upon Chinese goods under Section 301 of the Trade Act of 1974. CBP has detailed information regarding the 301 additional duties posted online at https://www.cbp.gov/trade/programs-administration/entry-summary/section-301-trade-remedies.
Documents found on that site provide that:
“The Section 301 duties only apply to products of China, and are based on the country of origin, not country of export.” Therefore, based on the processing described during the manufacturing of the body mist sprays, the subject merchandise will not be subject to those additional duties upon importation into the United States.
Perfumery, cosmetic, and toiletry products are subject to the requirements of the Federal Food, Drug, and Cosmetic Act, which are administered by the U.S. Food and Drug Administration. You may contact them at U.S. Food and Drug Administration, Office of Cosmetics and Colors, 5100 Paint Branch Parkway, College Park, MD 20740-3835, telephone number 301 436-1130.
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 Paul Hodgkiss at (973) 368-6809.
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division