HQ 0734027 - Country of origin marking requirements for paperboard folding boxes for perfume and cosmetics; disposable containers, 19 CFR 134.24; 19 CFR 134.36(b); 19 CFR 134.46 - United States International Trade Commision Rulings

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HQ 734027
May 21, 1991

MAR-2-05 CO:R:C:V 734027 RSD

CATEGORY: MARKING

Lisa B.Sorce
YPA/UAI Inc.
The Raritan Center
18 Mayfield Avenue
Edison, New Jersey 08818

RE: Country of origin marking requirements for paperboard folding boxes for perfume and cosmetics; disposable containers, 19 CFR 134.24; 19 CFR 134.36(b); 19 CFR 134.46

Dear Ms. Sorce:

This is in response to your letter dated January 8, 1991, requesting a ruling on country of origin marking requirements for paperboard folding boxes used to package perfume and cosmetics. Your letter was sent to Customs headquarters by the National Import Specialist in New York. Accompanying the submission was several sample folded boxes.

FACTS:

YPA/UAI imports small paperboard flat folding boxes, used to package and merchandise small inner containers of glass, plastic or metal containing cosmetics or perfume to be sold at retail. The boxes are printed in Japan by the importer's affiliate company. These boxes are sold to the importer's customers, perfume or cosmetic companies, who use them to package their products. The boxes have a U.S. address of the perfume distributors printed on them. The address is printed on the boxes at the request of the perfume distributors. On a bottom flap of the boxes, "PRINTED IN JAPAN" is printed on the box. Local Customs official have advised the importer that the placement of phrase "PRINTED IN JAPAN" is not proper and must be placed near the U.S. address. The importer has indicated that its customers object to placing the "PRINTED IN JAPAN" next to the U.S. address and that it could lose its customers if was forced to comply with this rule.

ISSUE:

Do the individual folding boxes have to be individually marked with their country of origin?

Does the U.S. address on the boxes trigger the requirements of 19 CFR 134.46?
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. Congressional intent in enacting 19 U.S.C. 1304 was 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." United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., other than the name of the country or locality in which the article was manufactured or produced, appears 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. The purpose of this requirement is to prevent the possibility of misleading or deceiving the ultimate purchaser of the article as to the actual origin of the imported goods.

After reviewing the samples provided, we find that the folded boxes fall under the container regulations in Part 134, Customs Regulations. Under these regulations, if the containers or holders are designed for or capable of reuse after the contents have been consumed, the consumer purchasing the contents and not the importer is considered to be the ultimate purchaser of the containers and the containers must be individually marked to indicate their own country of origin. This is the case whether the containers are imported full or empty. For example, if the imported containers to be filled have a lasting value or decorative use (e.g. fancy cologne bottles, reusable as flower vases, mustard jars reusable as been mugs) they must be individually marked with their own country of origin. See section 134.23, Customs Regulations. However, if the containers are disposable, the importer who fills them is considered to be the ultimate purchaser and the containers are excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3)(D), and only the outside wrappings of the packages for the containers shall be marked to indicate the country of origin. See section 134.24(c), Customs Regulations. Customs has ruled that this exception is not limited solely to an importer filler but also to an importer who sells the container to another party who will fill the container. See HQ 732823 January 19, 1990 Disposable containers are defined as the usual ordinary types of containers or holders which are ordinarily discarded after contents have been consumed (e.g. cans, bottles, paper bags, etc.) See section 134.24(a), Customs Regulations.

We are of the opinion that the imported folded boxes in question are disposable containers within the meaning of the above regulations since these boxes have no lasting value to the ultimate purchaser of the perfumes and will be discarded when the product is consumed. Accordingly, the ultimate purchasers of boxes are the perfume distributors who fill these boxes with their product. Therefore, pursuant to 19 U.S.C. 1304(a)(3)(D) the boxes are excepted from individual marking and only the outermost shipping cartons should be marked with the country of origin provided the district director at the port of entry is satisfied that the marked containers will reach the ultimate purchasers.

The question remains, however, whether or not the exception is applicable if the folded boxes are marked with a U.S. address. Generally, when 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, requirements 19 CFR 134.46 would apply. In addition, section 134.36(b), Customs Regulation 19 CFR 134.36(b) provides that an exception shall not apply to any article or retail container bearing any words letter, names, or symbols described in 19 CFR 134.46 or 19 CFR 134.47 which imply that any article was made or produced in a country other than the actual country or origin.

Customs has held that disposable containers imported empty to be filled by a domestic company and not intended for reuse maybe excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3) (D) and 19 CFR 134.24(c)(1), provided the address that appears on the container is clearly in reference to the contents of the container and not the container itself. See HQ 731698, June 26, 1989. HQ 716243, June 25, 1981. This is the case here. Since all the writing on the boxes refers to the perfume in the package and not to the boxes, it is clear that the addresses thereon relate to the perfume and its distributors and not to the boxes. Therefore, we find 19 CFR 134.36(b) is not applicable and that the that requirements of 19 CFR 134.46 do not apply. Similarly, because all the writing on the boxes pertains to the perfume, the ultimate purchasers of the perfume will realize that statement concerns the perfume and not the boxes. Accordingly, if the phrase "PRINTED IN JAPAN" remains on the boxes, it does not have to be in close proximity to the U.S. address. However, if the boxes will used to package imported perfumes, then to comply with the requirements of 19 U.S.C. 1304, the boxes must be marked with the country of origin of the perfumes in close proximity U.S. address in comparable sized letters as the U.S. address, and be preceded by "made in," "product of," or other words of similar meaning. See 19 CFR 134.46. The obligation to ensure that the country origin of the perfume is properly indicated rests with the perfume importer.

HOLDING:

The paperboard folded boxes for perfume and cosmetics are disposable containers which will be discarded by the ultimate purchaser of the perfume when he/she is finished using the product. The ultimate purchaser of the boxes are the perfume distributors who will fill the boxes with their perfume. Therefore, pursuant to 19 CFR 134.24 the individual boxes are excepted from marking; only the outside of the cartons in which they are imported must be marked with their country of origin. Because the address on the perfume boxes refer to the contents of the package, the perfume, and not to the boxes themselves, the requirements of 19 CFR 134.36(b) and 19 CFR 134.46 are not invoked and the country of origin of the boxes does not have to be in close proximity to the U.S. address. This ruling is applicable provided that the district director at the port of entry is satisfied that the boxes will be imported in cartons which are marked to indicate the country of origin and that the ultimate purchaser will receive them in this properly marked carton, and the boxes only will be used in the manner described in this ruling.

Sincerely,

John Durant, Director

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