HQ 0735229 - Country of origin marking of imported eye drop units repackaged in the U.S. and distributed free of charge; repackaging; 19 CFR 134.32(d); 19 CFR 134.34 - United States International Trade Commision Rulings

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HQ 735229

November 23, 1993

MAR-2-05 CO:R:C:V 735229 AT

CATEGORY: MARKING

Mr. Steve Shyne
Manager International Transportation
Pfizer, Inc.
235 East 42nd Street
New York, New York 10017-5755

RE: Country of origin marking of imported eye drop units repackaged in the U.S. and distributed free of charge; repackaging; 19 CFR 134.32(d); 19 CFR 134.34

Dear Mr. Shyne:

This is in response to your letter dated June 21, 1993, requesting a country of origin ruling regarding imported single dose units of Visine Extra and Visine A.C. from Germany repacked in the U.S. into cardboard cartons. A sample art work for the carton indicating the proposed country of origin marking and three single dose units were submitted with your letter.

FACTS:

You state that Pfizer intends to import from Germany single dose units of Visine Extra, lubricant and redness reliever eye drops and Visine A.C., astringent and redness reliever eye drops. You also state that the single units will be repacked in the U.S. into cardboard cartons (three dose units per carton), and then distributed as free samples to the ultimate consumer through the mail, health clubs and the like. The front panel of the sample indicates the product's name, quantity, type of product, and that it is a sample not for retail sale. The back panel near the bottom lefthand corner is printed with the words "Made in Germany" in blue lettering approximately 4 point (a point is a unit of measurement equal to 0.01384 inch or nearly 1/72 inch). Directly below appears the company's address "New York, New York 10017" in blue lettering approximately 4 point. Other product information such as, consumer warning, usage, parents note, also appears on the back panel. The directions on how to use the product appears on a side panel and information as to the contents of each eye drop unit appears on the other side panel. You claim that the bulk containers which the imported eye drop units are imported in are marked "Made in Germany" in close proximity to the Pfizer name and address on the carton in comparable size and print. The individual eye drop units are not marked with their country of origin. Each individual eye drop unit is marked with the expiration date, lot number, trademark and established name of the product and directions for how to open each unit dose. You inquire as to whether it is acceptable to mark the cardboard carton with the proposed country of origin marking in lieu of marking the imported eye drop units themselves.

ISSUE:

Whether it is acceptable to mark the cardboard carton in which the eye drop units are repackaged with the country of origin in lieu of marking the article itself?

Whether the country of origin marking on the sample artwork that is to be used on the cardboard carton containing the eye drop units and marked in the manner described above satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134?

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)(4), Customs Regulations (19 CFR 134.1(d)(4)), provides that if an article is imported and distributed as a gift the recipient is the ultimate purchaser. Therefore, the recipient who receives the eye drop units in the U.S. free of charge is the ultimate purchaser. Are The Single Dose Eye Drop Units Excepted From Marking?

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. However, since the eye drop units are not imported in the cardboard carton, whether the subject articles are excepted from individual marking under 19 CFR 134.32(d) is for the district director to decide. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized in the discretion of the district director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from Customs custody under the following conditions: (1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.; (2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry.

In this case, assuming that the district director is satisfied that the imported eye drop units will be repacked in the manner set forth below, and that the other conditions set forth in 19 CFR 134.34 are met, the district director may authorize an exception under 19 CFR 134.32(d), in which case marking of the eye drop units themselves would not be required.

The Marking Of The Repacked Article

In determining whether the marking is acceptable, Customs will take into account the presence of words or symbols on an article which may mislead the ultimate purchaser as to the country of origin. Consequently, if the words "United States," or "America," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality other than the country of origin appear on the imported article, special marking requirements are triggered. See, 19 CFR 134.46

The special marking requirements set forth in section 134.46 are triggered by the presence of the words "New York, New York" printed on the back panel of the cardboard carton as illustrated by the submitted artwork for the carton. Accordingly, the actual country of origin of the single dose eye drop units must appear "in close proximity" to the U.S. reference and in lettering of at least a comparable size. Such is the case here. The words "Made in Germany" which appear directly above the U.S. reference "New York, New York" are in close proximity and in lettering of at least a comparable size.
The country of origin marking must also be legible and conspicuous. These requirements are satisfied if it is easy to find and easy to read. See, 19 CFR 134.41. The origin marking "Made in Germany" is legibly and conspicuously located on the back panel of the carton directly above other essential consumer information about the product. It appears in contrasting lettering and is easy to find and easy to read as required by 19 CFR 134.41. Based on these considerations, we find that the marking "Made in Germany" printed on the submitted artwork depicting how the repacked cardboard carton is to be marked, satisfies the marking requirements of 19 CFR Part 134 and is an acceptable country of origin marking for the imported single dose eye drop units.

HOLDING

Assuming the district director authorizes an exception from marking the single dose eye drop units pursuant to 19 CFR 134.32(d) and 19 CFR 134.34, the proposed method of marking the cardboard cartons in the manner described above satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

Sincerely,

John Durant, Director
Commercial Rulings Division

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