HQ 0734063 - Country of origin marking requirements of unsealed containers used as gift boxes containing various imported merchandise which itself is legibly, permanently and conspicuously marked with the country of origin and distributed to the ultimate purchaser as goodwill gifts; 19 CFR 134.24(d) - United States International Trade Commision Rulings

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HQ 734063

May 21, 1991

MAR-20-5 CO:R:V:C 734063AT

CATEGORY: MARKING

Robert L. Follick, Esq.
225 Broadway
Suite 500
New York, New York 10007

RE: Country of origin marking requirements of unsealed containers used as gift boxes containing various imported merchandise which itself is legibly, permanently and conspicuously marked with the country of origin and distributed to the ultimate purchaser as goodwill gifts; 19 CFR 134.24(d)

Dear Mr. Follick:

This is in response to your letter of February 28, 1991, requesting a ruling on the country of origin marking requirements of unsealed containers used as gift boxes of various imported merchandise which itself are legibly, permanently and conspicuously marked with the country of origin and distributed to the ultimate purchaser as goodwill gifts.

FACTS:

Your client, Crown Herald Inc., is a domestic company which intends to purchase and import for resale foreign produced articles such as but not necessarily limited to desk sets, clocks, letter openers, desk caddies, thermoses, etc. Photocopies of the representative articles were submitted along with the letter. You state that you are informed by Crown Herald that the individual articles are each permanently, conspicuously and legibly marked with the country of origin "Germany" at the time of importation. When imported, the articles are packaged in what are referred to as "gift boxes" which are not marked and which are not sealed. Following importation, Crown Herald at the direction of its customers, monograms and/or imprints the product with the customer's name, logo, etc. The imported product is then sent to the customers who use the products as gifts.

A sample of the unsealed container referenced as a "gift box" has also been submitted. The sample is a cardboard and styrofoam box which is unsealed and does not contain any indication of the country of origin of the contents. The sample also has fold-out tabs which allows it to be easily opened by the recipient of the gift.

ISSUE:

Do the unsealed containers used as gift boxes have to be marked with the country of origin if the articles themselves are marked?

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 134.1(d)(4), Customs Regulations (19 CFR 134.1(d)(4)), provides that if an article is imported and distributed as a gift the recipient is the "ultimate purchaser."

The marking requirements for unsealed disposable containers of imported merchandise are set forth in section 134.24(d), Customs Regulations (19 CFR 134.24(d)). This section provides that "if the container is normally opened by the ultimate purchaser prior to purchase, only the article need be marked." In HQ 732271 (April 27, 1990), Customs ruled that unsealed cartons containing properly marked crystal giftware do not have to be marked with the country of origin because pieces of crystal giftware are articles that an ultimate purchaser would normally
remove from the carton to examine prior to purchase. We noted that a number of factors must be considered in determining if the article involved is something that the ultimate purchaser would take out of its carton to look at prior to purchase. Some of these factors are:

1. Whether a prospective purchaser will want to remove the article from its container to inspect it to find out exactly what he or she may be buying; and

2. Whether the article is the type which a prospective purchaser would be likely to remove from its container in order to examine it prior to purchase to see if it was broken or chipped.

We also noted that crystal glassware is the type of article likely to be on display in the store and that in the unlikely event the ultimate purchaser does not open the carton prior to purchase, he or she would see the country of origin marking on the display item.

In this case, the imported merchandise is distributed as gifts. In accordance with 19 CFR 134.1(d)(4) the recepient of the gift is the ultimate purchaser. Because the donee is not purchasing the giftware, the criteria set forth in the above crystal ruling does not apply. Nonetheless, we find that the unsealed boxes in which the giftware is distributed is not required to be marked to indicate the country of origin of the contents. The gift box is unsealed and can be easily opened by the recipient at the time the gift is received whereupon the country of origin will be revealed.

HOLDING:

The unsealed gift boxes described above, containing various imported merchandise that itself is properly marked with the country of origin and purchased for the sole purpose of being given as gifts do not have to be marked with the country of origin of the contents.

Sincerely,

John Durant, Director

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