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HQ 732204


July 19, 1989

MAR-2-05 CO:R:C:V 732204 jd

CATEGORY: MARKING

Mr. Jack F. Raineault
Legal Compliance Manager
Guinness Import Company
Six Landmark Square
Stamford, Connecticut 06901-2704

RE: Sufficiency of country of origin marking on labels affixed to bottles of imported malt beverage

Dear Mr. Raineault:

This is in reply to your letter of March 7, 1989, concerning the country of origin marking displayed on labels affixed to bottles of a malt beverage imported by your company.

FACTS:

You submitted a sample of the front and back labels affixed to bottles of "Guinness Extra Stout." The front label displays the words "BREWED IN IRELAND BY" in small block letters printed in black ink against a light beige background. The front label also displays the word "DUBLIN" in reference to the presence in that city of the Arthur Guinness and Sons Co., and the words "ST. JAMES'S GATE DUBLIN."

The back label displays in pertinent part the words, "IMPORTED BY THE GUINNESS IMPORT COMPANY STAMFORD, CT." The word "IMPORTED" is in large print at the top of the label and all the words appear in the same color scheme as on the front label. Also on the back label, under the heading "The Guinness Story" is a reference to the stout being first brewed in Ireland.

You indicate that you received a marking notice from Customs in Miami on a shipment of 1470 cases of stout imported on February 17, 1989, under entry no. 406-01227594. The Miami office believed the print size of the country of origin disclosure on the front label was too small and that country of origin marking should be repeated on the back label in close proximity to the U.S. address displayed there. You further indicate that the first issue, i.e., size of print, has been resolved, but the need to repeat country of origin on the back label is still at issue.

To confirm what was discussed in a phone conversation you had with a member of my staff, you must follow the procedures for internal advice set forth in { 177.11(b)(2), Customs Regulations

(19 CFR 177.11(b)(2)), or protest in { 174.11, Customs Regulations (19 CFR 174.11), for any matter you may wish to pursue regarding the marking notice received in Miami. We can, however, in light of the frequent labeling changes your company must make to comply with changing alcohol labeling and bottle deposit laws, provide you with a prospective ruling to facilitate your company's planning.

ISSUE:

Does the country of origin marking appearing on bottles of imported stout as described above, trigger the requirements of { 134.46, Customs Regulations?

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 an ultimate purchaser in the U.S. 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. The purpose of this section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the article.

The key to proper application of { 134.46 is judging the likelihood of confusion caused in the mind of an ultimate purchaser by a subject word or phrase. For example, it was determined that the U.S. address of a store on foreign printed promotional material did not infer the store was the printer (709304; July 27, 1978), and the address of a company on a foreign printed calendar to be given away for advertising purposes was determined not to be misleading marking (709655; November 30, 1978). Contrast those situations with L.D. 85-0003 (724918; July 11, 1984) where the phrase "Handcrafted American Oak Handle" printed on the blister pack of a kitchen utensil did
invoke the requirements of { 134.46. There was sufficient possibility of that phrase confusing an ultimate purchaser as to the country of origin of the utensil since the phrase referenced the origin of a component of the utensil.

It is the opinion of this office that the words, "Stamford, Ct.", on the back label of the bottle in question will not confuse an ultimate purchaser as to the origin of the beverage in the bottle. The U.S. address is prominently preceded by the words "IMPORTED BY" and is the address of an importing company. Clearly this is a situation where the importer benefits from the ultimate purchaser's ready recognition of this stout as an imported product, and more precisely, as one imported from Ireland. The declarative statement of origin on the front label, coupled with the overall design of the labeling to tout the "Irishness" of the stout, make it extremely unlikely an ultimate purchaser would be confused or misled by the U.S. address on the back label.

HOLDING:

Based on the above analysis, it is our opinion that the country of origin marking on the bottle is in compliance with 19 U.S.C. 1304. The U.S. address on the back label is not likely to confuse or mislead ultimate purchasers as to the country of origin of the beverage in the bottle. Accordingly, the country of origin of the beverage need not be repeated in close proximity to the U.S. address.
Sincerely,

Marvin M. Amernick

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