HQ 0734157 - Country of origin marking requirements for imported dancing tights packaged in clear plastic containers; 19 U.S.C. 1304 - United States International Trade Commision Rulings

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HQ 734157
July 15, 1991

MAR-2-05 CO:R:C:V 734157 AT

CATEGORY: MARKING

Natalie Jakowlew, Assistant Manager
Repetto USA
30 Lincoln Plaza
New York, New York 10023

RE: Country of origin marking requirements for imported dancing tights packaged in clear plastic containers; 19 U.S.C. 1304

Dear Ms. Jakowlew:

This is in response to your letter dated May 2, 1991, in which you seek a prospective and binding ruling on the country of origin marking requirements for imported dancing tights imported from France. Samples were submitted for examination.

FACTS:

You intend to import dancing tights made in France. You state that at the time of importation each pair of tights will be packaged in a clear plastic container which is sealed with an adhesive strip and marked with the country of origin "France" by affixing a paper label to each container. Three sample tights and the plastic container in which each article is intended to be imported in were submitted for examination. Each container is imprinted with the word "Repetto" and the word "Paris" directly below on the middle front panel. Also, each container has a paper label securely affixed to the bottom portion of the front panel marked with the words "Made in France" which appears below the material composition of the tights. Other paper labels indicating the color, style and size of the tights are affixed in this same area. You claim that the tights are never removed from these plastic containers and are only sold in these plastic containers directly to retail stores. The tights have no marking on them at all. You request an exception from marking the tights.

ISSUE:

Do the tights have to be individually marked with their country of origin if the plastic container in which the tights are packaged and sold in to the ultimate purchaser is marked with the country of origin in the manner specified above?

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 134.31(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), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. The definition then gives examples of who might be the ultimate purchaser if the imported article is used in manufacture, if the imported article is sold at retail in its imported form and if an imported article is distributed as a gift. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this case, the ultimate purchaser of the dancing tights is the consumer who purchases the product at retail.

An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article. Accordingly, if the article will remain in its container until it reaches the ultimate purchaser and if the ultimate purchaser can tell the country of origin of the dancing tights by viewing the plastic container in which it is packaged in, the individual dancing tights would be excepted from marking under this provision.

Although the plastic containers are not permanently sealed, in view of the fact that it contains all the information about the product (e.g. material composition, color, size and style), it is clear the product is designed to be sold to the ultimate purchaser in the plastic container. Moreover, you indicate that this is how the dancing tights are always sold to the retail stores. See HRL 733694, April 15, 1991 (curtain panels imported in cellophane bags with paper inserts with all information about product and sealed with adhesive tape excepted from marking).

We note that while we have determined that the dancing tights are excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32 other marking requirements may still exist under the Textile Fiber Products Identification Act. We suggest that you contact the Federal Trade Commission, Washington D.C. 20580, concerning these other marking requirements.

HOLDING:

Dancing tights which are imported in plastic containers that are marked in the manner described above, are excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d), provided the district director at the port of entry is satisfied that they will reach the ultimate purchaser in this manner.

Sincerely,

John Durant, Director

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