HQ 0735093 - Internal Advice request concerning the country of origin marking requirements for imported brassieres and the retail containers in which they are repacked; multiple countries of origin marking on retail containers; "Tailored in" in lieu of "Made in" or "Product of"; conspicuous; 19 CFR 134.24(d); 19 CFR 134.46; C.S.D. 89-37; C.S.D. 90- 90; HQ 734096 - United States International Trade Commision Rulings

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HQ 735093

September 8, 1993

MAR-2-05 CO:R:C:V 735093 AT

CATEGORY: MARKING

District Director of Customs
300 S. Ferry Street
Terminal Island, California 90731

RE: Internal Advice request concerning the country of origin marking requirements for imported brassieres and the retail containers in which they are repacked; multiple countries of origin marking on retail containers; "Tailored in" in lieu of "Made in" or "Product of"; conspicuous; 19 CFR 134.24(d); 19 CFR 134.46; C.S.D. 89-37; C.S.D. 90- 90; HQ 734096

Dear Sir:

This is in response to your memorandum dated March 15, 1993, forwarding the December 29, 1992, internal advice request of Western Overseas Corporation ("Western") on behalf of Exquisite Form Industries, Inc. ("EFI") on the country of origin marking requirements for imported women's brassieres and the retail containers into which the articles are repacked in the U.S. A sample (Sample #1) of the proposed marking on the imported article as well as on the retail container were submitted for our review. Additional samples (Sample #2 and #3) indicating the marking practices of other importers of brassieres were also submitted for review.

FACTS:

EFI imports women's brassieres from the Philippines, Mexico, Indonesia and Pakistan. The brassieres are individually marked with the phrase "Tailored in ... (name of country)" by means of a sewn-in fabric label. After importation, they are repacked into cardboard boxes for retail sale. EFI proposes to mark the retail boxes with the phrase "Tailored in Either the Philippines, Mexico, Indonesia or Pakistan; See Garment Label for Details". The proposed phrase will appear on the bottom end flap. The front panel of the box (Sample #1) depicts a color picture of a women wearing the enclosed brassiere and specifies the special features of the product. Other information such as the company's name "Exquisite Form", type of brassiere and the Good Housekeeping warranty also appears on the front panel. Instructions on how to use the product as well as fitting instructions appear on the back panel. Also near the bottom of the back panel the words "Pelham Manor, New York" are printed in black lettering approximately 4.5 point (A point is approximately .01384 inch or 1/72 of an inch). The cost, bar grid, size and color of the product appears on the top flap of the box. A white paper adhesive sticker is affixed to the bottom end flap of the box near the lefthand corner marked with the proposed phrase "Tailored in Either the Philippines, Mexico, Indonesia or Pakistan See Garment Label for Details" in black lettering approximately 3 point. The Sample #1 brassiere contained in the Sample 1 retail box has a sewn in label affixed to the garment near the connecting strap. The front side of the label is marked with the phrase "Tailored in the Philippines". The size of the brassiere also appears on the front side of the label. The fiber content and care instructions appear on the back side of the label.

ISSUES:

1) Whether the retail box is excepted from marking if the brassieres are individually marked with their country of origin by means of a sewn-in fabric label?

2) Whether the proposed marking "Tailored in Either the Philippines, Mexico, Indonesia or Pakistan" printed on the retail container (Sample #1) in the manner described above satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134?

3) Whether the phrase "Tailored in" to designate the country of origin of imported brassieres satisfies the marking requirements of 19 U.S.C. 1304?

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, C.A.D. 104 (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 134.1(d), Customs Regulations (19 CFR 134.1(d)) defines 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 the 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 brassieres is the consumer who purchases the product at retail. 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 U.S. is able to find the marking easily and read it without strain.

Is the retail box excepted from marking?

The first issue presented in this case is whether the retail box must be marked with the country of origin given that the brassieres are individually marked.

Section 134.24(d)(3), Customs Regulations (19 CFR 134.24(d)(3)), provides in part that in the case of an unsealed disposable container of imported merchandise which is normally opened by the ultimate purchaser prior to purchase, only the article need be marked with the country of origin.

Western asserts that the retail containers are excepted from marking under 19 CFR 134.24(d)(3) and in support cites to C.S.D. 90-90 in which Customs ruled that
unsealed cartons containing properly marked crystal giftware do not have to be marked with the country of origin because pieces of crystal giftware are articles that an ultimate purchaser would normally remove from the carton to examine prior to purchase.
Western states that persons buying intimate garments such as brassieres which are sold in retail packages would normally open such packages an examine the article prior to purchase. Thus, as was the case with the crystal giftware carton in C.S.D. 90-90, the retail container does not have to be marked with the country of origin. We disagree.

Although an ultimate purchaser of the brassiere may open the retail container prior to purchase and therefore see the country of origin on the actual brassiere, we find that since the retial box gives a consumer enough information (size, color and price) about the actual product inside, an ultimate purchaser does not necessarily have to open the box to examine the article prior to purchase, as was the case with the crystal giftware in C.S.D. 90- 90. Furthermore, since a U.S. address "Pelham Manor, New York" appears on the bottom of the back panel of the retail box an ultimate purchaser of the brassiere may incorrectly determine that the product was made in the U.S., rather than the actual foreign country, if no other country of origin marking appears on the box. Moreover, since a U.S. address appears on the retail box, special marking requirements are triggered which require that the box be marked with the country of origin (see discussion below). Based on these considerations, we find that the retail box is not excepted from marking under 19 CFR 134.24(d)(3), and the box must be marked with the country of origin even though the article itself is individually marked.

Whether the proposed marking "Tailored in Either the Philippines, Mexico, Indonesia or Pakistan See Garment Label for Details" printed on the retail container is an acceptable country of origin marking?

The second issue presented in this case is whether the proposed marking "Tailored in Either the Philippines, Mexico, Indonesia or Pakistan See Garment Label for Details" printed on the bottom end flap is an acceptable country of origin marking in view of the fact that the words "Pelham Manor, New York" appear below on the back panel of the box.

The proposed marking does not designate a specific country of origin but instead directs the ultimate purchaser to a location on the article where the country of origin can be found. Customs has previously approved such country of origin markings. For example, in C.S.D. 92-33 (September 2, 1992), Customs determined that the language "See Part Number Label For Country of Origin" printed on stand-alone boxes and outside wrappers containing imported engine parts immediately beneath a U.S. address, was acceptable if the part number label displaying the name of the country of origin was easily visible to the ultimate purchaser. See also, HQ 732374 (July 7,1989) (the language "Refer to neck label for country of origin" printed on the outside of a poly bag containing men's dress shirts immediately beneath a U.S. address, provided the neck label displaying the name of the country of origin in each shirt was easily visible to the ultimate purchaser). However, the country of origin marking in both cases had to satisfy the requirements of 19 CFR 134.46 to be an acceptable marking. Therefore, the proposed marking must satisfy the requirements of 19 CFR 134.46 to be acceptable.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that in 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, appears 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. The purpose of this section is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the actual origin of the imported goods. The special marking requirements set forth in section 134.46 are triggered by the presence of the words "Pelham Manor, New York" printed on the back panel above the country of origin marking. Accordingly, the actual country of origin of the brassiere must appear "in close proximity" to the U.S. reference and in lettering of at least a comparable size.

Customs has ruled previously that in order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears See, HQ 734485 (July 17, 1992). In this case the country of origin marking is not on the same panel as the U.S. reference in that the marking appears on the bottom end flap but the U.S. reference appears on a different side of the box on the back panel. Also, the country of origin marking is not in lettering of at least a comparable size since the marking "Tailored in Either the Philippines, Mexico, Indonesia or Pakistan See Garment Label for Details" is printed in lettering approximately 3.5 point whereas the words "Pelham Manor, New York", are printed in 4.5 point. Moreover, the country of origin marking is not located in a conspicuous place since an ultimate purchaser would tend to look at the front and back panel or top end flap of the retail box for the size and the price of the article and not the bottom end flap where the proposed marking is located. In HQ 723579 (March 27, 1990), Customs ruled that ribbon cartridges sold in a master carton with the country of origin marking on the bottom of the carton would not be acceptable as it was not conspicuous. Customs stated that the master carton would likely be stacked on a shelf so that the bottom of the carton would not be visible to consumers and that all pertinent information about the product was contained on the side panels of the box. In this case all pertinent information about the article (size, price, consumer instructions, color) is located on the front panel, back panel or top end flap, not the bottom end flap. Accordingly, we find that the proposed marking does not satisfy the requirements of 19 CFR 134.46 and is not an acceptable marking for the retail container. Also, we find that as discussed below, use of the phrase "Tailored in" printed on the retail container to designate the country of origin of the imported brassieres does not satisfy the marking requirements of 19 U.S.C. 1304.

Whether Use of the Phrase "Tailored in" to Designate the Country of Origin of Imported Brassieres Satisfies the Marking Requirements of 19 U.S.C. 1304?

In C.S.D. 89-37 (December 1, 1988), Customs ruled that the phrase "Fabric made in U.S.A. Tailored in Honduras" properly indicated that the country of origin of men's shirts was Honduras. In so determining, Customs stated that shirt manufacturers have used the phrase "Tailored in" to mean "Made in" for men's shirts and it has that connotation within the industry. Evidence was presented in support of this conclusion. In HQ 734031 (May 20, 1991), Customs ruled that the term "Tailored in" to designate the country of origin of imported men's shirts satisfied the marking requirements of 19 U.S.C. 1304. The ruling specifically stated that it applied only to the marking of imported men's shirts.

In this case, instead of marking imported men's shirts, EFI proposes to mark imported brassieres with the phrase "Tailored in" in place of "Made in" or "Product of" to indicate the country of origin of the garment. The proposed marking "Tailored in" would not clearly indicate to the ultimate purchaser the true country of origin of the brassieres. Although Customs found that the phrase "Tailored in" is synonymous with the phrase "Made in" in the shirt industry, Western has not submitted evidence which indicates that the phrase "Tailored in" is a standard phrase used for brassieres in the garment industry. Western has only submitted two samples of brassieres in their retail package (samples #2 and #3) marked with the phrase "Assembled in" in support of using the phrase "Tailored in" to designate the country of origin of the imported brassieres. In fact, you advise us that after reviewing the brassieres shown in the J.C. Penny Spring and Summer 1993 catalogue (pages 265 to 287) you found that the phrase "Made in" was consistently used to indicate the country of origin. Based on this evidence, you concluded that the phrase "Tailored in" is not a standard phrase used by the garment industry to connote country of origin of brassieres. Accordingly, we agree that, unlike men's dress shirts, the phrase "Tailored in" does not sufficiently indicate the country of origin of the imported brassieres, and therefore use of this term to designate origin of imported brassieres does not satisfy the marking requirements of 19 U.S.C. 1304. However, using the term "Tailored Made in" to designate the country of origin of imported brassieres would satisfy the marking requirements of 19 U.S.C. 1304. See, HQ 734096 (September 3, 1993) (use of the phrase "Tailored-Made in" to designate the country of origin of imported suits and suit-type jackets does satisfy the marking requirements of 19 U.S.C. 1304).

Delay Effective Date

The submission as presented does not offer an adequate basis for Customs to approve a delay, pursuant to 19 CFR 177.9, of the effective date of this ruling. However, the importer is encouraged to present any additional grounds to the Customs district in Los Angeles in support of his request for a delay in the effective date of this ruling.

HOLDING:

The retail boxes containing the imported brassieres are not excepted from marking under 19 CFR 134.24(d)(3) and must be individually marked with the country of origin.

Use of the terminology "Either the Philippines, Mexico, Indonesia or Pakistan See Garment Label for Details" printed on the retail box is acceptable. However, the marking must appear on the same side of the retail package as the U.S. address "Pelham, New York" and in lettering of comparable size in satisfaction of the special marking requirements of 19 CFR 134.46.

Use of the phrase "Tailored in the Philippines" to designate the country of origin of imported brassieres does not satisfy the marking requirements of 19 U.S.C. 1304. However, the phrase "Tailored Made in" is an acceptable marking to designate the origin of the imported brassieres.

Sincerely,

John Durant, Director

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