HQ 0733736 - Country of origin marking of product package headers. 19 CFR 134.11; package marking; 19 CFR 134.41; conspicuousness; degree of visibility/legibility (print size and type); typography; U.S. locality; 19 CFR 134.46; 19 CFR 134.36(b); C.S.D. 88-24; close proximity; C.S.D. 86-19; C.S.D. 79-337; C.S.D. 79-371; comparable size; C.S.D. 79-36; C.S.D. 90-41; C.S.D. 90-101; C.S.D. 90-69 - United States International Trade Commision Rulings

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HQ 733736

June 19, 1991

MAR-2-05 CO:R:C:V 733736 GRV

CATEGORY: MARKING

Mr. Thomas W. Matthews, President
Trade West Inc.
501 Sumner Street, Suite 621
Honolulu, Hawaii 96817

RE: Country of origin marking of product package headers. 19 CFR 134.11; package marking; 19 CFR 134.41; conspicuousness; degree of visibility/legibility (print size and type); typography; U.S. locality; 19 CFR 134.46; 19 CFR 134.36(b); C.S.D. 88-24; close proximity; C.S.D. 86-19; C.S.D. 79-337; C.S.D. 79-371; comparable size; C.S.D. 79-36; C.S.D. 90-41; C.S.D. 90-101; C.S.D. 90-69

Dear Mr. Matthews:

This is in response to your letter of August 14, 1990, requesting a ruling regarding acceptable country of origin markings on product package headers. Three product package header samples were submitted for examination.

FACTS:

Tropical merchandise, e.g., hula skirts and bikini tops and bottoms, made in China for distribution in the U.S., is retail packaged in a manner that utilizes product package headers. (Package headers are a means of marketing merchandise, whereby a sheet of cardboard-type material is folded over the top of packaged merchandise so that the merchandise can be hung on a rack or post from the hole that runs through the top of the package header). On one side of the package headers--ostensibly the display side, in the lower right-hand corner, "MADE IN CHINA" is printed in capital letters, in lightface type. This marking is printed on the sample headers in type sizes which range from approximately 5-9 points (a point is a unit of type measurement equal to 0.01384 inch or nearly 1/72 in., and all type sizes are multiples of this unit). On the other--back--side of the package headers, the locations of U.S. distributors, e.g., Nani Makana Distributors of Hawaii, and other product/package information are printed in lower-case letters, in lightface type. This product/ package information is similarly printed in type sizes which range from approximately 5-9 points. (For an understanding of the print size/type terms referenced here, see the entry under "Type (printing)" in volume 18 of McGraw-Hill Encyclopedia of Science & Technology (6th ed., 1987), or the entry under "Printing" (in pre-1985) or "Printing, Topography and Photo-engraving" (printings since 1985) in volume 14 of The New Encyclopaedia Britannica (15th ed., 1975)).

On the display side of one of the product package headers, the product is identified as "SILK" HAWAIIAN TI LEAF HULA SKIRT and is printed in approximately 20-point, boldface print; the "MADE IN CHINA" country of origin marking is printed in the print size and type indicated above.

You state that various Customs districts differ as to where and what size the "Made in China" country of origin marking should be and request that we provide a ruling on this matter.

ISSUES:

I. Whether the location of the country of origin marking (on the opposite side of package headers from where U.S. locations are identified) on the package headers meets the close proximity requirement of 19 CFR 134.46.

II. Whether the "MADE IN CHINA" country of origin marking (printed in 5-point, lite-face type) is comparable in size, as required by 19 CFR 134.46, to the "other locality" marking used in the product description on the package header for the "SILK" HAWAIIAN TI LEAF HULA SKIRT product (printed in 20-point, boldface type).

LAW AND ANALYSIS:

The marking statute, section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its 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. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The primary purpose of the country of origin marking statute 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." United States v. Friedlaender & Co., 27 CCPA 297, 302, C.A.D. 104 (1940). The clear language of section 1304 requires 'conspicuous' marking, and to this end section 134.41, Customs Regulations (19 CFR 134.41), further provides, in part, that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain.

The Close Proximity Requirement

Where locations other than the country of origin of the merchandise are identified on an imported article or its container, section 134.46, Customs Regulations (19 CFR 134.46), provides that:

[i]n any case in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, 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 a comparable size, the name of the country of origin preceded by "Made in," "Product of," or other words of similar meaning. (Emphasis added).

The purpose of this regulation is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the origin of the imported article. See, 19 CFR 134.36(b); C.S.D. 88-24 (concerning baby booties).

We have previously ruled that in order to satisfy the close proximity requirement of this regulation, the country of origin marking must appear on the same side(s) or surface(s) on which the name of the locality other than the country of origin appears. See, C.S.D. 86-19, and Headquarters Ruling Letters (HRLs) 708994 dated April 24, 1978 (concerning product labels), 733084 dated March 19, 1990 (concerning keywound alarm clocks), 732191 dated April 27, 1990 (concerning paint brush sets), 733618 dated July 26, 1990 (concerning soccer balls), and 733026 dated August 16, 1990 (concerning whether "Registered Trademark" information triggers the requirements of 19 CFR 134.46), cf., C.S.D.s 79-337 (concerning manhole covers and frames) and 79-371 (concerning the use of the U.S. Olympic Committee Seal), and HRL 733864 dated November 5, 1990 (concerning souvenir marking on Christmas cards/ ornaments). Thus, for the country of origin marking on the three sample product packaging headers to meet the close proximity requirement, the "MADE IN CHINA" marking must be located on the same side of the package header as appears the U.S. locations identified. However, concerning the one sample package header that contains a product description which employs a U.S. locality--"SILK" HAWAIIAN TI LEAF (emphasis supplied), on the front of the header and a U.S. locality on the back of the header, this circumstance requires that the package header must be marked with its country of origin on both sides. See, HRL 732191 dated April 27, 1990 (concerning paint brush sets).

The Comparable Size Requirement

As stated above, section 134.46 requires that in any case where a U.S. locality appear on an imported article, there shall appear "in at least comparable size," the name of the country of origin. The term "comparable" is defined in Webster's Third New International Dictionary (1986 ed.) as follows:
comparable - 1. capable of being compared: 2. suitable for matching, co-ordinating, or contrasting:
Syn see like.

The word "comparable" has been judicially construed not to mean "identical," but rather "sufficiently similar." See, 8 Words and Phrases 266 (1951).

In C.S.D. 79-36, we found that labels designed to be attached to the outer waistband of cotton denim and corduroy trousers that were prominently printed "Styled in London" in contrasting colors in letters two times larger than the uncon- trasting letters in the "Made in British Hong Kong" marking were unacceptable, in that the labels did not satisfy the requirement of section 134.46, regarding comparable size. In C.S.D. 90-41, we found that the lettering denoting "MADE IN KOREA," which was one-third or less the size of the lettering employed to denote "WEST GERMANY," was plainly not lettering of comparable size, as required by 19 CFR 134.46. And, in two recent C.S.D.s (90-101 and 90-69), we have stated that the lettering used to indicate the country of origin marking must be comparable in size to the lettering used to denote the location reference.

Given this framework within which to assess the comparable size issue presented by the "SILK" HAWAIIAN TI LEAF package header, based on an examination of the sample header, we find that the disparity present between the product description markings--printed in 20-point, boldface print--and the "MADE IN CHINA" country of origin marking--printed in 5-point, lightface print, is not "sufficiently similar." Thus, the country of origin marking on this package header does not appear in compar- able size print, as required by 19 CFR 134.46. Further, because the ultimate purchaser's attention will be drawn to the larger print in boldface type and away from the smaller print in lightface, this circumstance suggests that the ultimate purchaser will not find the marking easily, which would increase the possi- bility of misleading or deceiving him/her as to the origin of the imported article. Accordingly, we find that the "MADE IN CHINA" marking on this package header must be enlarged, and while no set ratio of print sizes or types is mandated by the regulations, in this case we do not believe that a print size for the country of origin marking which is less than 50% of the type size used to denote "SILK" HAWAIIAN TI LEAF would be in compliance with the comparable size requirement of the marking regulation. We suggest that you contact the district director at the ports through which you plan to import the merchandise through so that (s)he can see whether the print size and type you subsequently employ conforms to the marking requirements of section 304 of the Tariff Act of 1930, as amended.

HOLDING:

The location of the country of origin marking on the sample package headers does not meet the close proximity requirement of the marking regulations, in that the markings ("MADE IN CHINA") are not printed on the same side of the package header as are the U.S. localities. To meet the close proximity requirement, the country of origin markings will have to appear on the same side of the package header as the U.S. localities. Further, any package headers that contain a product description which employs a U.S. locality on the other side of the header-- "SILK" HAWAIIAN TI LEAF--must be marked with its country of origin on both sides to meet this aspect of the marking requirements at 19 CFR 134.46.

Regarding the sample package header--"SILK" HAWAIIAN TI LEAF, which is printed in various print sizes and types and contains a product description employing a U.S. locality, (printed in 5-point, lightface type) and other U.S. locality/ product markings (printed in 20-point, boldface type), this printing does not meet the comparable size requirement of the marking regulation at section 19 CFR 134.46. In this case, the country of origin marking must be enlarged so that the difference between the two markings is no more than 50%.

If the package headers are reprinted as recommended herein, then the package headers may conform to the marking requirements of sections 134.41 and 134.46, Customs Regulations (19 CFR 134.41 and 134.46). In this regard, you should check with the district director of the port you plan to import the merchandise through to see if your reprinted package headers fully comply with all aspects of section 134.46 and do not raise other marking concerns.

Sincerely,

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