HQ 0734412 - Country of origin marking requirements for imported diapers packaged in sealed plastic containers; 19 U.S.C. 1304 - United States International Trade Commision Rulings

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HQ 734412

March 18, 1992

MAR-2-05 CO:R:C:V 734412 AT

CATEGORY: MARKING

Diane L. Weinberg, Esq.
Sandler, Travis & Rosenberg, P.A.
505 Park Avenue
New York, New York 10022-1106

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

Dear Ms. Weinberg:

This is in response to your letter dated November 14, 1991, on behalf of Obion Denton Company, Division of Salant Corp, requesting a ruling on the country of origin marking requirements applicable to a dozen textile diapers imported from Hong Kong in sealed plastic bags. Samples were submitted for examination.

FACTS:

You state that the diapers are made and packaged in sealed plastic bags in Hong Kong for sale in the U.S. Each sealed package contains a dozen diapers. On the submitted sample, the words "Dr. Denton" appear on the front of the bag in blue lettering approximately 72 points (a point is a unit of measurement equal to 0.01384 inch or nearly 1/72 in., and all type sizes are multiples of this unit) along with the size, type and quantity of the number of diapers contained in each bag. Printed on the back of the bag near the left corner are the words "Made in Hong Kong" in blue lettering approximately 9 points. Other information such as the fiber content, care and use instructions also appear on the back of the bag above the words "Made in Hong Kong". You state that Obion Denton Company intends to sell the diapers to retail stores in these sealed plastic bags. The diapers have no marking on them at all. You request an exception from marking the individual diapers. ISSUE:

Do the diapers have to be individually marked with their country of origin if the sealed plastic bag in which the diapers are imported and sold 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 diapers 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 Customs is satisfied that 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 diapers by viewing the plastic bag in which it is packaged in, the individual diapers would be excepted from marking under this provision.
In this case, in view of the fact that the plastic bags are permanently sealed and contain all the information about the product (e.g. fiber content, quantity, size, care and use instructions), it is clear the product is designed to be sold to the ultimate purchaser in the plastic bags. Moreover, you indicate that this is how Obion Denton Company intends to sell the dozen diapers to 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).

HOLDING:

Diapers which are imported in sealed plastic bags 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).

Sincerely,

John Durant, Director

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