HQ 0085766 - Classification of "Dinosuds" Bubble Bath; Eligibility of "Dinosuds" under the United States-Canada Free Trade Agreement; Country of Origin Marking - United States International Trade Commision Rulings

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HQ 085766

February 1, 1990

CLA-2 CO:R:C:G 085766 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 3307.30.5000 and 9503.49.0020

A.N. Deringer, Inc.
30 West Service Road
Champlain, New York 12919

RE: Classification of "Dinosuds" Bubble Bath; Eligibility of "Dinosuds" under the United States-Canada Free Trade Agreement; Country of Origin Marking

Dear Sirs:

This is in response to your letter of October 3, 1989, requesting a classification of "Dinosuds" bubble bath (hereinafter "Dinosuds") under the Harmonized Tariff Schedule of the United States (HTSUS). In addition, you requested a ruling as to the applicability of the United States-Canada Free Trade Agreement (FTA) to the instant merchandise and whether the product has met the country of origin marking requirements. A sample was submitted for our examination.

FACTS:

The article at issue is a plastic container designed to resemble a dinosaur that is filled with bubble bath. The plastic container, which is made in China, is imported into Canada and it is then filled with the bubble bath. The bubble bath is entirely of Canadian origin and it is manufactured by Belcam in St. Jean, Quebec.

ISSUES:

1. What is the tariff classification of the Dinosuds under the HTSUS?

2. Whether this article is eligible for preferential treatment under the FTA?

3. Does the instant merchandise meet the Country of Origin requirements?

LAW AND ANALYSIS:

Issue 1- Classification of the Dinosuds under the HTSUS

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. Goods which cannot be classified in accordance with GRI 1 are to be classified in accordance with subsequent GRI's taken in order. GRI 5(a) states that:

Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however apply to containers which give the whole its essential character.

Furthermore, GRI 5(b) provides that:

Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision does not apply when such packing materials or packing containers are clearly suitable for repetitive use.

The Dinosuds container is not a specially shaped or fitted container within the meaning of GRI 5(a), nor is it considered the normal packaging for bubble bath under GRI 5(b). The container, which resembles a dinosaur caricature, is designed for product appeal to attract consumers and use as a play item for children while the contents are being consumed, and afterwards, rather than as a simple container for packing bubble bath. Furthermore, the instant container may well be refilled with bubble bath purchased in conventional containers.

The instant container plays a major role in giving the product, "Dinosuds", its essential character. The form of the container adds significantly to the commercial appeal of the product, and is of substantially greater value than the bubble bath. It is the container, with a caricature of a dinosaur's head and body, which provides the visual appeal of the product. Therefore, the container and the bubble bath are classifiable separately under the HTSUS.

The bubble bath would be classifiable in heading 3307, HTSUS, which provides for pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic and toilet preparations, not elsewhere specified or included. The plastic dinosaur container, because of its substantial play value, would be classifiable in heading 9503, HTSUS, which provides for toys representing animals or non-human creatures and parts and accessories thereof.

Issue 2- Eligibility of the Dinosuds for preferential treatment under the United States- Canada Free Trade Agreement

General Note 3(c)(vii)(B), HTSUS, provides that goods imported into the customs territory of the United States are eligible, under the FTA, for reduced rate treatment if they are "goods originating in the territory of Canada". According to this note, goods are considered to be of Canadian origin for FTA purposes if:

(1) they are goods wholly obtained or produced in the territory of Canada and/or the United States, or

(2) they have been transformed in the territory of Canada and/or the United States so as to be subject--

(I) to a change in tariff classification in Canada as described in the rules of General Note

In the instant case, the bubble bath and the container are separately classifiable. The bubble bath, as a product of Canada, is eligible for preferential treatment under the FTA, whereas the container, which is a product of China, is not eligible for FTA preferential treatment.

Issue 3- Country of Origin Marking Requirements

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 articles. The purpose of the marking statute is set forth in United States v. Friedlaender & Co., 27 CCPA 297, 302 C.A.D. 104 (1940), in
which the court stated that "Congress intended 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 are a 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."

The provisions of 19 CFR Part 134 are the Customs Regulations which implement the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Subpart C of 19 CFR Part 134 provides for country of origin marking of containers. This section recognizes two broad categories of containers. Section 134.23 specifies that reusable containers, which must be individually marked with their country of origin, are either: (1) those containers designed for or capable of reuse after their contents have been consumed; or (2) containers which give the whole importation its essential character, having lasting value or decorative use. Section 134.24 provides that disposable containers are the usual and ordinary types of containers and holders, including cans, bottles, paper or polyethylene bags, paperboard boxes, and similar containers or holders which are ordinarily discarded after the contents have been consumed.

It is Customs opinion that the Dinosuds container falls within Section 134.23. The container provides the essential character for the Dinosuds product. It provides both the structural integrity and the visual appeal of the product. Thus, the container must be marked with its country of origin.

The Dinosuds container does not meet the country of origin marking requirements. Though the container is marked on the bottom "Made in China", this marking is somewhat misleading. The consumer may think that the container and its contents are both made in China. Therefore, the marking should specify that it is the container which is made in China.

Moreover, the tag attached to the Dinosuds meets the requirements for Section 134.23, for it specifies that the container is made in China. However, the tag does not specify what is "Made in Canada". To indicate the country of origin to the ultimate purchaser, the bubble bath should be identified as the item made in Canada.

Finally, if the Dinosuds bubble bath container is covered with plastic when imported, the markings must still be legible and conspicuous. If the plastic does obscure the marking on the
bottom, the tag attached to the container should be visible so that when the purchaser buys the container he can locate the country of origin of the container and its contents.

HOLDING:

The bubble bath is classifiable in subheading 3307.30.5000, which provides for perfumed bath salts and other bath preparations: Other. The rate of duty is 4.9 percent ad valorem. As a product of Canada, the bubble bath is eligible for a reduced rate of duty of 3.9 percent ad valorem, provided all applicable requirements are met.

The plastic container is classifiable in subheading 9503.49.0020, which provides for toys representing animals or non-humans creatures and parts and accessories thereof: Other. The rate of duty is 6.8 percent ad valorem.

Sincerely,

John Durant, Director

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