HQ 0735028 - Country of Origin Marking of Stuffed Toys; Conspicuous Location; Hang Tag; Label; 19 CFR 134.1(d); 19 CFR 134.46. - United States International Trade Commision Rulings

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HQ 735028

June 28, 1993
MAR-2-05 CO:R:C:V 735028 ER

CATEGORY: MARKING

Ms. Pamela L. Drazich
Ron Jon Surf Shop
3850 S. Banana River Blvd.
Cocoa Beach, Florida 32931

RE: Country of Origin Marking of Stuffed Toys; Conspicuous Location; Hang Tag; Label; 19 CFR 134.1(d); 19 CFR 134.46.

Dear Ms. Drazich:

This is in response to your letter dated March 3, 1993, in which you request a ruling regarding the sufficiency of your current method of marking stuffed toy hang tags and sewn-in labels with country of origin. A sample stuffed toy with hang tags and sewn-in label attached was submitted with your request.

FACTS:

Your company imports stuffed toys from C.A. Australia, a company in Australia. The toys are made in China and are then shipped to the Australian company which, in turn, ships the toys to your warehouse in the U.S. The toys feature two hang tags, one resembling an Australian flag with references to Australia on the front and back of the tag and a marking "Made in China" on the back, and another tag which features the words "Made in China" on one side, only. Additionally, a sewn-in label is attached to the toy which displays references to Australia and the marking "Handcrafted in China".

The front of the hang tag resembles an Australian flag and bears two references to the word "Australia". The first reference is part of the legend "Designed in Australia Made Overseas" and appears in letters each measuring approximately 1/8" x 1/16". The second reference appears in upper case letters each measuring approximately 1/4" x 1/4". The words "Made in China" are printed on an adhesive label attached to the back of the hang tag. The words "Australia" and "Australian" appear four more times on the back of the hang tag. The words "Handcrafted in China" appear on the sewn-in label in addition to the words "Australia" and "Australian".

ISSUE:

Whether the stuffed toys are adequately marked with country of origin.

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 United States 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 United States the English name of the country of origin of the article. By enacting 19 U.S.C. 1304, Congress intended to ensure that the ultimate purchaser would be able to know by inspecting the marking on the imported goods the country of which the goods are 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, 302 C.A.D. 104 (1940).

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). For purposes of this ruling we will assume that the product is sold at the retail level, and accordingly, that the consumer is the ultimate purchaser.

Part 134, Customs Regulations (19 CFR 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. As provided in section 134.41, Customs Regulations (19 CFR 134.41), the country of origin marking is considered to be conspicuous if the ultimate purchaser in the United States is able to find the marking easily and read it without strain.

Of concern here are the requirements of two related provisions of the marking regulations, section 134.46, Customs Regulations (19 CFR 134.46) and section 134.47, Customs Regulations, (19 CFR 134.47). In the instant case, application of special marking requirements set forth in these provisions are triggered by the presence of the word "Australia" which appears several times on both the front and back of the hang tag and on the sewn-in label. The purpose of both provisions is the same, namely to prevent the ultimate purchaser from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. The critical difference between the two provisions is that 19 CFR 134.46 requires that the name of the actual country of origin appear "in close proximity" to the U.S. reference and in lettering of at least comparable size. By contrast, 19 CFR 134.47 is less stringent, providing that when as part of a trade name, trademark or souvenir mark, the name of a location other than the country of origin appears on the imported article, the name of the country of origin must appear in close proximity or "in some other conspicuous location". In other words, the latter provision triggers only a general standard of conspicuousness. In either case, the name of the country of origin must be preceded by "Made in", "Product of", or other similar words. No information was submitted regarding whether the word "Australia" is part of a trademark, trade name or souvenir mark; consequently, in the instant case the more stringent requirements of 19 CFR 134.46 apply.

The country of origin marking on the both the front and back of the hang tag is insufficient. The front of the hang tag resembles the Australian flag and bears two references to the word "Australia". The first reference is part of the legend "Designed in Australia Made Overseas" and appears in letters each measuring approximately 1/8" x 1/16". The second reference appears in upper case letters each measuring approximately 1/4" x 1/4". To comply with the requirements of 19 CFR 134.46, the words "Made in China" must appear on the same side of the hang tag as any reference to Australia and in letters of at least comparable size to those in the largest reference to Australia. Neither criterion is satisfied by the sole reference to "Made in China" appearing on the rear of the hang tag or by the second hang tag which is marked with the words "Made in China" as these markings are not in close proximity to the reference to Australia appearing on the front of the first hang tag. This office has a long standing practice of ruling that the close proximity requirements of 19 CFR 134.46 mean that the country of origin marking must appear on the same side or surface as the foreign reference so that the information is viewable in one inspection of the item. Moreover, this "same-side" requirement is applied even if the article is otherwise properly marked with country of origin. (See HQ 733840 (February 1, 1991) garment hang tags had to be marked with the country of origin of the garment on the same side of the hang tag as the U.S. address despite the fact that the garments were otherwise properly marked with country of origin; and HQ 729469 (February 24, 1988) gloves otherwise marked with country of origin did not satisfy marking requirements because hang tags bearing U.S. reference were not also marked with country of origin on same side of hang tag as U.S. reference.)

Additionally, the words "Made in China" appearing on the back of the hang tag are insufficient because the size of the letters "Made in China" are not comparable in size to the letters appearing in the largest reference to "Australia" printed on the back of the hang tag. We are unable to determine if the use of the words "Handcrafted in China" on the sewn-in label are appropriate without knowing if the stuffed toys are indeed "handcrafted" (as opposed to machine-made) in China. In any event, if the toys are "handcrafted" the size of the letters in the marking legend must be at least comparable to those in the words "Australia" and "Australian" which are also featured on the sewn-in label.

HOLDING:

To comply with the marking statute and 19 CFR 134.46, the stuffed animal hang tag and sewn-in label featuring references to Australia must be marked with country of origin on the same side of the hang tag and sewn-in label as each reference to Australia and in lettering of at least comparable size to that in the largest reference to Australia on the same side.

Sincerely,

John Durant, Director
Commercial Rulings Division

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