HQ 0734365 - Internal Advice relative to country of origin marking of retail packaged cameras which reference the U.S. address of the manufacturer. 19 CFR 134.45(a); package marking; locality other than the country of origin; 19 CFR 134.22(c); C.S.D. 80-29; C.S.D. 80-57; 730619; 729469 - United States International Trade Commision Rulings

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HQ 734365

April 13, 1992

MAR-2-05 CO:R:C:V 734365 GRV

CATEGORY: MARKING

District Director of Customs
U.S. Customs Service
111 West Huron Street
Buffalo, N.Y. 14202

RE: Internal Advice relative to country of origin marking of retail packaged cameras which reference the U.S. address of the manufacturer. 19 CFR 134.45(a); package marking; locality other than the country of origin; 19 CFR 134.22(c); C.S.D. 80-29; C.S.D. 80-57; 730619; 729469

Dear Sir:

This is in response to your memorandum of October 1, 1991, requesting internal advice relative to the country of origin marking requirements applicable to retail packaged cameras which reference the U.S. address of the manufacturer. A sample of the subject packaged camera was submitted for examination.

FACTS:

Cameras made and packaged in Mexico are imported into the U.S. for retail sale. The camera itself has the name of the manufacturer, its U.S. address, the country of origin, and the identity of a U.S. component molded into the bottom of the camera body in English in approximately 5-point type (>1/16 inch letters). The packaging also has the name of the manufacturer and its U.S. address in English, however, the country of origin and identity of the U.S. component are denoted in Spanish ("Fabricado en Mexico" and "Objetivo fabricado en E.E.U.U.") and Portuguese ("Fabricado no Mexico" and "Objetiva fabricado nos U.S.A.")--all printed in approximately 7-point type (<1/8 inch letters).

Although the merchandise bears reference to the country of origin in close proximity in comparable size lettering to the U.S. locality reference, a Customs Form 4647 (Notice of Redeliv- ery-Markings, etc.) was issued requiring the packaging to be marked in English, as required by 19 U.S.C. 1304 and 19 CFR 134.11. Counsel argues that the package marking--"Fabricado en Mexico"--should be acceptable as words of similar meaning, based on 19 CFR 134.46, Customs Directive II-3540-03 dated April 4, 1986--Guidelines for Implementation of Marking Requirements--and Appendix A to the Directive, which specifies certain foreign phrases that have been approved/disapproved as acceptable country of origin markings.

Internal advice is requested regarding the issue of whether "Fabricado en Mexico" is sufficient marking for purposes of 19 CFR 134.46, which allows for "words of similar meaning" where a locality reference other than the country of origin is used.

ISSUE:

Whether employing a foreign phrase to indicate the country of origin on a retail package, where a locality other than the country of origin is also referenced, meets the marking require- ments of 19 U.S.C. 1304 and 19 CFR 134.46 and 134.22(c)?

LAW AND ANALYSIS:

The marking statute, 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 pur- chaser the English name of the country of origin of the article. (Emphasis supplied). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304, and 134.45(a), concerning approved markings for country of origin, provides, in part, that:

[t]he markings required by this part shall include the English name of the country of origin, unless other marking to indicate the English name of the country of origin is specifically authorized by the Commissioner of Customs. Notice of acceptable markings other than the English name of the country of origin shall be published in the Federal Register and the Customs Bulletin. (Emphasis in original).

Although our attention has been directed to an accepted practice for alternative country of origin marking, which allows for the use of foreign introductory phrases in conjunction with the English name of the country of origin, we believe this practice is limited to marking issues where no special marking require- ments under 19 CFR 134.46 or 134.47 are present. Therefore, the practice of accepting certain foreign introductory phrases is a qualified practice, and not applicable in the present case. The purpose of the marking statute is to permit the "ultimate purchaser" in the U.S. to choose between domestic and foreign-made products, or between the products of different foreign countries, see, United States v. Friedlaender & Co., C.A.D. 104, 27 CCPA (1940), and National Juice Products Association v. United States, 10 CIT 48, 628 F.Supp. 978 (1986), and requires a marking such as would be understood by purchasers of foreign-made goods as giving definite and reliable information as to the country of origin. In American Burtonizing Co. v. United States, T.D. 41489, 13 Ct.Cust.Appls. 652 (1926), the court construed the purpose of 304 of the Tariff Act of 1922 (the precursor marking provision to 19 U.S.C. 1304) stating that:

[i]t is not reasonable to suppose that Congress, by the use of the word "indicate," meant only that the words should hint at the country of origin. The object sought to be obtained by the legislature could best be obtained by an indication which was clear, plain, and unambiguous and which did more than merely hint at the country of origin. We do not think that Congress intended that American purchasers, consumers, or users of foreign-made goods should be required to speculate, investigate, or interpret in order that they might ascertain the country of origin. (Emphasis in original).

As Congress has not clearly expressed any intent to change this purpose of the marking statute, we adhere to the judicial construction of the marking laws as stated by the Burtonizing court.

The "Ultimate Purchaser" Consideration

The "ultimate purchaser" is defined generally as the last person in the U.S. who will receive the article in the form in which it was imported. 19 CFR 134.1(d). Example (3) of this section provides that if an article is to be sold at retail in its imported form, the purchaser at retail is the "ultimate purchaser."

Where the only issue presented regarding imported merchan- dise is whether the designation of the English name of the coun- try of origin is sufficient to afford the requisite notice to the ultimate purchaser, Customs has stated that use of certain foreign phrases to introduce the English name of the country of origin, e.g., "Fabrique en (country of origin), "Hecho en (country of origin), and "Imprime au (country of origin), is acceptable for purposes of 19 U.S.C. 1304 and 19 CFR 134.11. However, we have not extended this use of certain introductory foreign phrases where other marking issues are presented, i.e., where a locality other than the country of origin is in issue. Special Marking Requirements

Where locations other than the country of origin of the merchandise appear on an imported article, 19 CFR 134.46 imposes further marking requirements. This regulation 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 supplied).

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, 19 CFR 134.36(b), and constitutes a separate consideration from whether the country of origin marking itself is conspicuous. See, Headquarter Ruling Letter (HRL) 733888 dated October 9, 1991 (water heaters not conspicuously marked, however, marking requirements of 19 CFR 134.46 were met). We note that the examples provided of words of similar meaning are all in English, which is in keeping with the mandate of 19 U.S.C. 1304 that the marking should be in English.

Package Marking Requirements

Although unsealed retail cartons containing properly marked articles, in general, do not have to be marked with the country of origin, C.S.D. 90-90, 134.22 (c) carries over the concern addressed at 134.46 and 134.36(b), to provide that:

[c]ontainers or holders of imported merchandise bearing the name and address of an importer, distributor, or other person or company in the United States shall be marked in close proximity to the U.S. address to indicate clearly the country of origin of the contents with a marking such as "Contents made in France" or "Contents Product of Spain. (Emphasis supplied).

This package marking requirement is applicable even though the article itself may be marked with the country of origin. HRLs 730619 dated February 22, 1988, and 729469 dated February 24, 1988. Again, we note that the examples provided of words of similar meaning are all in English, which is in keeping with the mandate of 19 U.S.C. 1304 that the marking should be in English.

Within the context of applying the special marking require- ments of 134.46 to imported articles, we have allowed country of origin markings which employ a dual language designation, such as "Made In/Fait a" stating that the dual designation includes the English words and thus should not be confusing to the ultimate purchaser. C.S.D. 80-57. And within the context of applying the marking requirements of 134.46 to disposable packaging marked with the name, address, and ZIP code of the distributor and followed by the statement "Country of Origin on Contents," we have held that such a marking legend was an acceptable method of marking, given that the contents were properly marked and clearly visible without the need to unpack the article. C.S.D. 80-29. In this latter ruling, we note that the issue of foreign phrases was not at issue.

Applying these considerations to the packaged cameras at issue, and after examining the sample submitted, we believe the package marking of the country of origin of the cameras is not in keeping with the special marking requirements of 19 CFR 134.22(c), in that the phrase introducing the country of origin is not in English. Taken as a whole, we find that presenting the name of the manufacturer and its U.S. address in English on the package, but the required introductory phrase for the country of origin--and identity of the U.S. component--in Spanish and Portuguese, does not indicate to ultimate purchasers the foreign origin of the article contained in the package in a manner that is clear, plain, and unambiguous. Rather, the present format merely hints at the country of origin and requires ultimate purchasers to speculate, investigate, or interpret the reason why Mexico is referenced on the package. Indeed, the only way the ultimate purchaser can clearly know where the camera product is made is to open the package and discover the information molded onto the bottom of the camera body itself.

HOLDING:

The use of the foreign phrases "Fabricado en/no" and "Objetivo/a fabricado" to introduce the English name of the country of origin on retail packaged imported merchandise where a locality other than the country of origin is referenced in English (the U.S. distributor's address) does not fairly meet the marking requirements of 19 U.S.C. 1304, 19 CFR 134.46 and 134.22(c).

Sincerely,

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