HQ 0734490 - Country of origin marking of oxygen absorber packets; 19 CFR 134.24(c); disposable packaging. - United States International Trade Commision Rulings

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HQ 734490
June 1, 1992

MAR-2-05 CO:R:C:V 734490 KR

CATEGORY: MARKING

Mr. Stephan E. Becker
Mr. Josh Newburgh
Shearman & Sterling
801 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2604

RE: Country of origin marking of oxygen absorber packets; 19 CFR 134.24(c); disposable packaging.

Dear Messrs. Becker and Newburgh:

This is in response to your letter dated January 21, 1992, requesting a country of origin ruling on behalf of your client, Cryovac Division of W.R. Grace Corporation (hereinafter "Cryovac") regarding oxygen absorber packets which you have been importing from Japan. A sample oxygen absorber packet (hereinafter "packet"), sales brochure, sample food product containing the packet, and shipping carton were submitted for examination.

FACTS:

You state that Cryovac imports oxygen absorber packets which are manufactured by Mitsubishi Gas Chemical Ltd., in Japan. It intends to import the packets into the U.S. for sale to various companies for insertion into the packaging of various products to eliminate oxygen in airtight containers. The packets consist of a mixture containing primarily iron oxide enclosed in a permeable plastic or paper packet. The packets are used to extend the shelf-life of food articles.

The packets are sold to food processors for $.02 to $.03 each. The packets are imported in bulk cartons that are marked "MADE IN JAPAN". Cryovac sells the packets in these same cartons to the food processors. The food processor places the packet in a food article package and seals the food article package. You state the packet is usually not visible inside the food article package.

Currently Mitsubishi Gas Ltd. marks each packet with the country of origin marking, "Made in Japan". You state that this sometimes confuses the purchaser of the food product, because the purchaser may believe the food itself is also produced in Japan. Cryovac requests a ruling which would allow it to stop marking each individual packet with the country of origin, and only mark the bulk shipping carton of the packets with the country of origin.

ISSUE:

Whether each individual oxygen absorber packet must be marked with the country of origin marking, or is it sufficient to mark the bulk package of the packets with the country of origin of the packets.

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. The purpose of the marking statute is outlined in United States v. Frielaender & Co., 27 CCPA 297 at 302, C.A.D. 104 (1940), where the court stated that: "Congress intended 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."

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.

In this case, we consider the imported oxygen absorber packets to be part of the disposable packaging for food products. We note that these packets, although not physically attached to such packaging, are to be used as an integral part thereof, and are designed to be disposed of along with the rest of the packaging. Thus, we find that the regulations concerning disposable packaging apply. 19 CFR 134.24(c) provides that when disposable containers or holders are imported by persons or firms who fill or package them with various products which they sell, these persons are the "ultimate purchasers" of these containers or holders and they may be excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3)(D). (An article is excepted from marking under 19 U.S.C. 1304(a)(3)(D) if the marking of a container of such article will reasonably indicate the origin of such article). 19 CFR 134.24(c) applies even if the packager is not the importer, provided that Customs is satisfied that the packager will receive the imported articles in their original imported bulk containers which are marked with their country of origin. See HQ 733716 (June 6, 1991). Accordingly, we find that the food processors who use the oxygen absorber packets in the packaging of their food products are the ultimate purchasers of the packets.

The marking of the bulk packaging in lieu of the packets themselves is acceptable if Customs is satisfied that the food processors will receive them in their marked bulk container in which they are imported, and the marking on the bulk container is satisfactory. Since you state that Cryovac sells the packets directly to food processors only in this manner, we suggest you submit a statement to this effect at the time of entry.

As provided in 19 CFR 134.41(b), the ultimate purchaser must be able to find the marking easily and read it without strain. The sample bulk shipping carton has "MADE IN JAPAN" printed on two side panels in red ink approximately 5/16 of an inch in height, or 22.5 points (a point is a unit of type measurement equal to 0.01384 inch or approximately 1/72 of an inch, and all type sizes are multiples of this unit). Other printing appears on the side panels in significantly greater print size. However, the other printing is in brown ink while the country of origin marking is apart from the other printing in very large letters and in red ink so that it is easy to find and read. We, therefore, find that the country of origin marking on the bulk shipping carton is conspicuous and satisfies 19 U.S.C. 1304.

HOLDING:

The oxygen absorber packets are part of the disposable packaging of the food items. The ultimate purchasers of the oxygen absorber packets are the food processors who use them to package their products. Therefore, the packets are excepted from individual marking under 19 CFR 134.24 provided the bulk shipping cartons in which the packets are imported are properly marked with the country of origin and the district director at the port of entry is satisfied that the food processors will receive them in their original unopened marked containers and the carton is properly marked with the country of origin.

Sincerely,

John Durant, Director
Commercial Rulings Division

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