HQ 0733887 - Country of origin marking of imported toilet water testers; 19 CFR 134.36(b) - United States International Trade Commision Rulings

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HQ 733887
February 25, 1991

MAR-2-05 CO:R:C:V 733887 KG

CATEGORY: MARKING

Mr. Robert J. Core
Encore International Shipping Company
170 Broadway
Suite 1601
New York, N.Y. 10038

RE: Country of origin marking of imported toilet water testers; 19 CFR 134.36(b)

Dear Mr. Core:

This is in response to your letter of October 26, 1990, requesting a country of origin ruling regarding imported toilet water testers. A sample was submitted for examination.

FACTS:

Your company imports toilet water testers which are placed at points of sale, usually retail shops, for sampling by prospective customers. The testers are never sold by the importer. The sample submitted is a bottle of "Anais Anais" Eau de Toilette which is marked "Tester" in bold lettering on the side of the bottle. The toilet water sample was made in France and packaged there in a bottle, which is then placed in a box. The word "Paris" is printed underneath the name of the toilet water and the brand name on the bottle. A U.S. address is also printed in the lower right hand corner of the bottle. The tester bottle is enclosed in a cardboard box. Printed on the side of the box is the legend "Made in France" and below it a U.S. address.

ISSUE:

Whether the toilet water tester is excepted from country of origin marking.

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 at 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."

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. You noted that C.S.D. 89-80 (March 14, 1989), addresses the issue of whether imported samples used to solicit orders of foreign merchandise would be excepted from individual country of origin marking and argue that your product should be excepted from country of origin marking under either 19 CFR 134.32(d) or 19 CFR 134.32(f). Pursuant to 19 U.S.C. 1304(a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR 134.32(d)), Customs excepts from individual marking requirements imported articles for which the marking of the containers will reasonably indicate the origin of the articles. This exception applies in cases where the article is imported in a properly marked container and Customs officials at the port of entry are satisfied that the ultimate purchaser will receive it in its original unopened marked container. Pursuant to 19 U.S.C. 1304(a)(3)(F) and section 134.32(f), Customs Regulations (19 CFR 134.32(f)), Customs excepts from marking requirements articles imported for use by the importer and not intended for sale in their imported or any other form.

Although the exceptions for samples specified in C.S.D. 89- 80 could be applicable to a toilet water tester, this particular tester contains references to New York on the label which could confuse or mislead an ultimate purchaser regarding the country of origin of the toilet water. As expressed below, in such circumstances, the usual marking exceptions do not apply.

Section 134.36(b), Customs Regulations (19 CFR 134.36(b)), provides that articles or containers bearing misleading markings are not entitled to an exception from marking. In this case, the tester bottle has a U.S. address on it. The U.S. address is potentially misleading and therefore, pursuant to 19 CFR 134.36(b), none of the exceptions to marking would apply to this tester bottle. Pursuant to 19 U.S.C. 1304 and 19 CFR 134.36(b), this toilet water tester would be required to be marked with its country of origin. We are not addressing the issue of whether a toilet water tester which did not include a misleading marking would be entitled to an exception from marking.

HOLDING:

The toilet water testers described above are not entitled to an exception from marking because they contain misleading markings. Therefore, the tester must be marked to indicate its country of origin.

Sincerely,

John Durant
Director,
Commercial Rulings Division

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