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HQ 731640

April 20, 1989

MAR-2-05 CO:R:C:V 731640 jd

CATEGORY: MARKING

Anthony D. Padgett, Esq.
Thelen, Marrin, Johnson & Bridges
2300 N Street, NW
Washington, D.C. 20037

RE: Country of origin marking requirements applicable to effervescent enzymatic cleaner tablets

Dear Mr. Padgett:

This is in response to your letter of July 28, 1988, concerning the country of origin marking requirements applicable to effervescent enzymatic cleaner tablets, a product used in cleaning and disinfecting contact lenses.

FACTS:

According to your submission, your client sells a contact lens cleaning kit containing a plastic molded tray, two vials, a counter-insert and ten cleaner tablets enclosed in foil. The tray, vials and counter-insert are of U.S. origin. The tablets may be of either West German or U.S. origin. The majority of tablets are produced by a West German subsidiary of your client. The tablets are shipped to the U.S. in bulk, packaged in polyethylene bags and overpacked in cartons. U.S. tablets are used only when West German tablets are in short supply.

You seek approval of the marking "Tablets made in West Germany or the United States." Otherwise, stocks of cleaner tablets will have to be kept separate and separate boxes or labels will have to be kept in inventory. In your opinion, your label would be "much more cost efficient, and would provide the ultimate consumer with the information required by the applicable laws and regulations."

ISSUE:

Is a statement that the cleaner tablets in a contact lens cleaning kit are of either West German or domestic origin sufficient to satisfy the requirements of 19 U.S.C 1304?

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), generally requires that every article of foreign origin (or its container) 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 an ultimate purchaser in the United States the English name of the country of origin of the article.

Section 134.25, Customs Regulations (19 CFR 134.25), requires that containers of repackaged J-List articles or articles incapable of being marked must be marked to indicate the country of origin of the contents by either the importer who repackages the articles or the purchaser or transferee of such articles who does the repacking, and that the importer must certify to the district director on entry that the repacked containers will be marked or that he will notify the purchaser or transferee of such marking requirements.

You state that the tablets are so small and fragile that it would be impossible to individually mark them. In any event, the tablets are exempt from individual marking by virtue of 19 U.S.C. 1304(a)(3)(J) and { 134.33, Customs Regulations (19 CFR 134.33), since "Chemicals, drugs, medicinal, and similar substances, when imported in capsules, pills, tablets, lozenges, or troches" are J-List articles. Articles on the J-List are exempt from individual marking, however the outermost container that ordinarily reaches the ultimate purchaser of a J-List article must be marked with the country of origin of the article.

Section 134.32(o), Customs Regulations (19 CFR 134.32(o)), provides for an exception to marking for articles which cannot be marked after importation except at an expense that would be economically prohibitive unless the importer, producer, seller or shipper failed to mark the articles before importation to avoid meeting the requirements of 19 U.S.C 1304.

You are aware that Customs has previously approved country of origin statements that mention more than one country of origin on certain repacked articles, and you believe your client's situation should receive similar treatment. However, we do not agree that the facts surrounding your client's cleaner tablets are sufficiently similar to the facts involved in those prior Customs rulings, e.g., industrial fasteners, fertilizer, honey and orange juice, to warrant such treatment.

In the case of industrial fasteners (C.S.D. 84-56), distributors sourced up to 40,000 different fastener sizes and varieties from up to 30 different countries. Fasteners were not individually wrapped, or even wrapped in small quantities (such as 10 cleaner tablets), but rather were commingled in large kegs. The fertilizer ruling (C.S.D. 84-50) did not discuss how many source countries were involved, but it is evident there were more than two types of fertilizer involved. Also, fertilizer was not susceptible to any individual wrapping during bulk storage since it was commingled in warehouse. Similarly, in the case of honey

(C.S.D. 84-44), there were at least eight foreign sources and honey is not susceptible to individual wrapping during commingled bulk storage.

Finally, in ruling 729523 (May 1, 1986), we did not approve a request to allow orange juice processors to use a label that stated, "may contain concentrate from Florida and/or Brazil." Customs explained its disapproval by saying that the phrase, "does not actually inform the ultimate purchaser of the country of origin; it merely indicates the possibility that a product may be of foreign origin. We believe that approval of the 'may contain' language would render the country-of-origin marking nugatory." We believe your proposed statement, "Tablets made in West Germany or the United States," although closer to satisfactory by absence of the word "may", is still deficient since it does no more than indicate the possibility that the tablets may be of foreign origin.

In contrast to the above situations, your client deals with only one foreign supplier, West Germany. Accordingly, we can envision only three possible markings for the completed lens cleaning kits: tablets from West Germany, tablets from the U.S., or tablets from West Germany and U.S. However the possibilities are reduced by one when you state that, "The products contained in the [product name] enzymatic tablet boxes would always be either from the United States or West Germany." In that case, there are actually only two possible ways to fill a retail box in regard to the sources of the cleaner tablets, and therefore, only one label necessary to be prepared to meet marking requirements. When the tablets are of U.S. origin, no country of origin marking is necessary.

We are not convinced that it would require "significant extra time and expense in monitoring the packaging" if you were required to maintain separate labeling appropriate to the one situation requiring labeling. We can well appreciate that your proposed marking would be more cost efficient for your client's operations, however, without more concrete evidence that requiring the proper labeling would amount to an economic prohibition, we cannot grant an exception to the required labeling.

Separate boxes could be maintained, one disclosing the presence of West German tablets, the other with no country of origin necessary. Alternatively, adhesive labels disclosing the West German tablets to be affixed, or not affixed when appropriate, to a standard box also appear to be a feasible low- cost option for your client's situation.

HOLDING:

Based on the above considerations, your client's situation does not qualify for an exception to marking based on prohibitive economic expense. Further, your proposed marking statement is unacceptable since it does not clearly indicate the presence of foreign made cleaner tablets. Contact lens cleaning kits, as described above, must be marked in a conspicuous place as legibly, indelibly and permanently as possible with an unequivocal statement as to the presence and foreign origin of the cleaner tablets.

Sincerely,

Marvin M. Amernick

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