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HQ 731863

February 14, 1990

MAR-2-05 CO:R:C:V 731863 KG

CATEGORY: MARKING

Mr. Mark Feigenbaum
Finelle Cosmetics
P.O. Box 5200
137 Marston Street
Lawrence, MA 01842-2808

RE: Country of origin marking of imported plastic cosmetic compact

Dear Mr. Feigenbaum:

This is in response to your letter of October 3, 1988, requesting a country of origin ruling regarding future importations of imported plastic cosmetic compacts. We regret the delay in responding to your inquiry.

FACTS:

The slimline plastic cosmetic compact is imported empty and filled in the U.S. with powdered blush made in the U.S. The sample plastic compact you submitted for examination has the name "finelle" on the top of the compact. Inside the compact, there is a mirror on one side and a tray on the other side, in which the blush and a applicator brush are placed. The size of the compact is about 3 1/2 inches by 2 1/2 inches.

The compacts are imported for the sole purpose of being filled and are not sold empty. Further, no cosmetic refills are sold by you nor are they available in the marketplace for these compacts. After the blush is fully used up, a consumer who desired more blush would have to buy a new compact complete with mirror, blush and applicator.

ISSUE:

Whether imported plastic cosmetic compacts which are filled in the U.S. with powdered blush must be marked with the country of origin of the compact.

LAW AND ANALYSIS:

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 U.S. 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 U.S. the English name of the country of origin of the article. The Court of International Trade stated in Koru North America v. United States, 701 F.Supp. 229, 12 CIT (CIT 1988), that: "In ascertaining what constitutes the country of origin under the marking statute, a court must look at the sense in which the term is used in the statute, giving reference to the purpose of the particular legislation involved. The purpose of the marking statute is outlined in United States v. Friedlaender & Co., 27 CCPA 297, 302 C.A.D. 104 (1940), where 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 is the 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."

An exception from the requirement that the imported article be marked is authorized by 19 U.S.C. 1304(a)(3)(D) if the marking of a container of the article will reasonably indicate the origin of the article. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.24(c)(1), Customs Regulations (19 CFR 134.24(c)(1)), provides that when disposable containers or holders are imported by persons or firms who fill or package them with various products which they sell, these persons or firms are the ultimate purchasers of these containers or holders and they may be excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3)(D). The outside wrappings or packages containing the containers shall be clearly marked to indicate the country of origin.

In HQ 722170 (July 18, 1983), and HQ 722547 (August 30, 1983), Customs ruled that plastic cosmetic compacts were required to be individually marked. Customs reconsidered its position on marking compacts in HQ 723905 (March 20, 1984). In that ruling, Customs affirmed its view that plastic compacts imported empty to be filled in the U.S. with U.S. made cosmetics were not disposable containers subject to 19 CFR 134.24(c)(1) because compacts are not merely containers, but rather are substantial, functional articles in their own right. As support for this position, Customs cited rulings classifying compacts as "flat goods" under item 706.60 (706.61) of the Tariff Schedules of the United States (TSUS) rather than "containers ... chiefly used for the packing, transporting or marketing of merchandise" under item 772.70, TSUS.

Customs does not regard the sample presented in this case as a substantial, functional article in its own right. It is not reasonable to assume that a retail purchaser would buy the finished product for the compact. Although plastic compacts could be refilled, this company does not sell refills and refill blush for this particular compact is not available in the marketplace. When the blush is used up, the consumer would dispose of the compact and buy a new compact containing blush. As offered in the market, this compact is a disposable container imported empty to be filled in the U.S. Therefore, this item is subject to 19 CFR 134.24(c)(1) which excepts the compact from individual marking and only requires that the container in which the compacts are imported be marked with the country of origin of the compacts.

Further, on January 1, 1990, the Harmonized Tariff Schedule of the United States ("HTSUS") superseded and replaced the TSUS. Plastic cosmetic compacts are now classified under subheading 3923.10.0000, HTSUS, which provides for plastic articles for the conveyance or packing of goods, of plastics, boxes, cases, crates and similar articles. See HQ 084714 (July 19, 1989). Since plastic compacts are now classified as containers, the justification for our prior position is no longer valid.

HOLDING:

Plastic cosmetic compacts for which refill cosmetics are not available are disposable containers and when imported empty, are subject to the marking exception provided in 19 CFR 134.24(c)(1). Therefore, the compact itself is excepted from marking and only the container in which the compact is imported must be marked with the country of origin of the compact. Customs rulings HQ 723905, HQ 722547 and HQ 722170 are modified to conform with this position.

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs

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