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HQ 731830


November 21, 1988

MAR-2-05 CO:R:C:V 731830 jd

CATEGORY: MARKING

Richard D. Maltzman, Esq.
650 California Street
San Francisco, California 94108

RE: Country of origin marking requirements for frozen produce packages

Dear Mr. Maltzman:

This is in reply to your submission of May 9, 1988, requesting a ruling regarding the conspicuousness of country of origin markings on packages of imported frozen produce. You submitted numerous samples which you believe bear marking that is neither conspicuous nor easily found. Further, you assert that these packages reflect industry-wide practice.

FACTS:

You represent three frozen food packing companies and those companies are supported by two union locals in this request. Pursuant to { 177.1(c), Customs Regulations (19 CFR 177.1(c)), these companies, as domestic packagers of frozen produce, have a direct and demonstrable interest in the question of country of origin marking of imported produce.

You have requested a ruling that, to meet the requirements of conspicuousness, the country of origin marking must appear on the front panel of the package, be in lettering at least as prominent as the lettering of the product description and/or appear in a typestyle or color vividly contrasting with the rest of the front panel.

Examination of the numerous samples of packages and labels you submitted reveals that all bear country of origin marking; 16 on the rear panel, 5 on the bottom panel (boxes) and 1 on the front panel. On the samples with marking on the bottom or front panel, the marking is displayed in close proximity to an expiration date.

ISSUE:

Must country of origin marking on packages of imported frozen produce appear on the front panel, be in lettering at
least as prominent as the lettering of the product description and/or appear in a typestyle or color vividly contrasting with the rest of the front panel to be considered conspicuous?

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), requires that unless excepted, 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 the ultimate purchaser the English name of the country of origin of the article.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that in any case in which the words "U.S.", or "American", the letters "U.S.A.", any variation of such words or letters or the name of any city or locality in the U.S., or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appear 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 comparable size, the name of the country of origin preceded by "Made in", "Product of" or other words of similar meaning.

Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), states in reference to country of origin markings, "The ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain."

In defense of your interpretation of the word "conspicuous", you rely on the definition of the word as derived from dictionaries, interpretation of the word in situations subject to the Uniform Commercial Code and Customs Service Decision 86-5, concerning the conspicuousness of marking on athletic footwear.

We believe the proper sources for defining the word "conspicuous" are the statute itself, the regulations issued thereunder and court decisions made in light of both of these. The use of dictionary definitions would be necessary and proper only in the absence of these other sources. In addition, we note the lack of any Congressional action to modify the statute in any way that would result in your interpretation of "conspicuous". Our interpretation and application of 19 U.S.C. 1304 has been well known for many years.

You have pointed to C.S.D. 86-5 (20 Cust. B. & Dec. No.1 at 11), as an analogous situation which supports your request. That ruling concerned country of origin marking requirements on athletic footwear and shoe boxes displaying symbols associated with a country other than the country of origin. However, you have not alleged, nor would the samples submitted support any such allegation, that the packages of frozen produce display flags or other symbols unmistakably associated with a country other than the country of origin. You do however refer to "brand names and package designs of long-standing U.S. consumer familiarity." Customs does not believe that brand names or package designs rise to the level of symbols such as flags. To agree otherwise would raise the Green Giant on a par with Uncle Sam as representative of the United States.

In that ruling Customs stated, "We believe that the presence of symbols associated with a country other than the country of origin may mislead the ultimate purchaser as to the country of origin. This is especially true where the foreign symbols are more readily visible than the country of origin marking." In that case Customs was concerned with a British flag prominently displayed on the top of a shoe and the shoe box lid was a reproduction of the British flag, and with an American flag appearing on the side of a shoe and the shoe box lid was a reproduction of the American flag. Customs held: "Due to the presence of symbols associated with a country other than the country of origin on the shoe and/or the shoe box, the country of origin marking at the base of the tongue or inside the heel is not conspicuous. This defect would be cured by an additional permanent country of origin marking on the outside of the box which is: (1) preceded by the words "Made in" or "Product of"; (2) placed either on the top of the lid or the side of the box-preferably on the side of the box containing information about the size and style of the shoe; and (3) in lettering at least 1/8 inch high."

The samples you submitted do not display any symbols associated with countries. Therefore, there are no additional factors which negate the sufficiency of the marking which does appear on the packages. Also, in the shoe ruling where there were determined to be misleading symbols, the corrective measures prescribed did not go so far as to require marking the same size as the symbols, nor were contrasting colors or typestyles mandated.

You also rely on cases decided under the Uniform Commercial Code (UCC). The UCC has defined the word conspicuous in various contexts, e.g., warranty disclaimer cases.

The case of Pabrini, Inc. v. U.S., CIT Slip Op. 86-21, reported at 20 Cust. B. & Dec. No. 12, concerned the country of origin marking of umbrellas given as gifts to race track patrons. The court broke its decision into two segments- deciding who was the ultimate purchaser of the umbrellas, then deciding if the country of origin labels were displayed in a conspicuous place. In determining that the race track patrons were the ultimate purchasers of the umbrellas the court made reference to the UCC in stating that a single consideration could be used to support two promises. Therefore, the race track patrons could, for purposes of the marking laws, be considered the ultimate purchasers even though the umbrellas were not the subject of a separate transaction.

In deciding whether or not the label on the umbrella was conspicuous, the court cited { 134.41(b), Customs Regulations (19 CFR 134.41 (b)), which states that, "The ultimate purchaser in the United States must be able to find the marking easily and read it without strain." The court approved of these criteria because in deciding that the umbrella label was not conspicuous it stated, "The Court finds as a matter of fact that the small label cannot be seen easily and without strain." It was apparently unnecessary to go beyond the statute and the regulations issued thereunder to interpret the word "conspicuous". Further, no resort to the UCC was made in defining "conspicuous" even though the court was aware of the UCC and used it elsewhere in its deliberations.

We are of the opinion that all the samples submitted are in compliance with marking requirements. Consumers are familiar with the industry practice of displaying nutritional information and an expiration date on food products such as packages of frozen produce. As these dates and nutritional data are conspicuous on packages, country of origin marking displayed in close proximity to such dates or data is conspicuous as well, i.e., it is easily found and read without strain, and satisfies marking requirements. Further, Customs believes that allowing country of origin marking to be stamped on with an expiration date facilitates compliance with the marking laws since it allows packers to have a small
number of standard packages with space left available for imprinting information unique to the package.

HOLDING:

Country of origin marking on packages of imported frozen produce need not appear on the front panel of the package, be in lettering at least as prominent as the product description and/or appear in a color or typestyle vividly contrasting with the rest of the front panel to be considered conspicuous and therefore in compliance with 19 U.S.C. 1304.

Sincerely,

John Durant
Director

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