HQ 0735261 - Country of origin marking of imported sunglass cases sold individually or repacked with sunglasses in the U.S.; repackaging; 19 CFR 134.32(d); 19 CFR 134.34 - United States International Trade Commision Rulings

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HQ 735261

November 24, 1993

MAR-2-05 CO:R:C:V 735261 AT

CATEGORY: MARKING

Paul A. Winick, Esq.
Thelen, Marrin, Johnson & Bridges
330 Madison Avenue
New York, New York 10017-5001

RE: Country of origin marking of imported sunglass cases sold individually or repacked with sunglasses in the U.S.; repackaging; 19 CFR 134.32(d); 19 CFR 134.34

Dear Mr. Winick:

This is in response to your letters dated June 22, November 10 and November 15, 1993, on behalf of Bausch & Lomb, Incorporated ("B&L") requesting a ruling on the country of origin marking of certain imported sunglass cases from Mexico. A sample plastic bag and cardboard carton indicating the proposed method of marking were submitted with your request.

FACTS:

You state that B&L imports from Mexico sunglass cases to be sold individually or repacked in the U.S. with B&L sunglasses for sale at retail. Presently, the cases are imported into the U.S. with an adhesive sticker bearing the printed legend "Case Mexico" affixed to the inside of the case. B&L contemplates another method of country of origin marking and requests a ruling as to whether this proposed method will satisfy the country of origin marking requirements. B&L proposes to import the sunglass cases from Mexico in the following manner:

Importation

All the sunglass cases will be imported sealed inside clear polyethylene-type heat sealed plastic bags. However, instead of the country of origin sticker currently in use, the polyethylene bags will be indelibly printed with the legend "Case Mexico". All cases packaged and marked in this manner will be imported packed inside cardboard master shipping cartons. A marked sample bag was submitted for our review. The bag is conspicuously, permanently and legibly marked with the words "Made in China" (three times) in large black lettering approximately 14 point (a point is a unit of measurement equal to 0.01384 inch or nearly 1/72 inch). You state that although the sample is marked "Made in China", all the plastic bags containing the imported sunglass cases will be marked "Case Mexico" in the same manner and type size.

Manner Of Use In The Unites States

Once in the U.S. the empty sunglass cases will be used in one of two possible ways:

1. B&L may sell or give empty sunglass cases (not containing sunglass products) to its customers (primarily wholesalers and retailers) for further distribution. Most often the empty cases are offered as replacements to end-consumers. These empty cases will be distributed by B&L, inside the original heat- sealed polyethylene type bags marked with the legend "Case Mexico" in which they were imported. When empty cases are shipped, no packaging outside the plastic bag will be used.

2. B&L will fill the sunglass cases (99.75% of all imported cases will be used in this fashion by B&L) in the U.S. with domestically assembled B&L Ray-Ban Classic Metal sunglass products. At the B&L U.S. factory where the sunglasses are assembled, the empty cases will be removed from the heat-sealed plastic bags in which they were imported and filled with the Classic Metals sunglass product and related product literature. The sunglass cases then containing the U.S. sunglass product, will be individually re-packaged inside a cardboard retail carton that will bear the legend "Case Mexico". You represent that the cardboard carton accompanies the sunglass-filled case throughout the chain of resale and distribution into the hands of the retail purchaser. A marked sample carton was submitted for our review.

The sample carton is marked with the phrase "Sunglasses Made in U.S.A." on the top panel in black lettering approximately 4 point. The phrase "Case Made in Mexico" appears directly below in black lettering approximately 4 point. Other information such as, the style, color, lot number and bar code appear on the top panel. The back panel of the carton near the right hand side is marked with the B&L address "Rochester, New York 14692 U.S.A." in white lettering approximately 4 point. The words "Case Made in Mexico" appears directly below in white lettering approximately 4 point. The history of the company appears on the back panel along with the company's name "Bausch & Lomb". The trademark "Ray-Ban" is printed on all sides of the carton except the top panel.

ISSUE:

Whether it is acceptable to mark the plastic bag in which the sunglass cases are imported or cardboard carton in which the sunglass cases are repackaged with the country of origin in lieu of marking the article itself?

Whether the country of origin markings on the sample plastic bag and cardboard carton marked in the manner described above satisfy 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), 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". 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, in this case, the ultimate purchaser of the sunglass cases is either the consumer who purchases the sunglass case empty or filled with B&L sunglass products or who receives the case free of charge as a replacement.
Are The Sunglass Cases 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.

The sunglass cases are all imported in sealed polyethylene bags marked "Case Mexico". 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 sunglass case by viewing the plastic bag in which it is packaged, the individual sunglass cases would be excepted from marking under this provision.

However, since almost all (99.75%) of the sunglass cases will be repacked by B&L into cardboard cartons with sunglass products in the U.S., it is for the district director of Customs to decide pursuant to 19 CFR 134.34 whether the subject articles are excepted from individual marking under 19 CFR 134.32(d). 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 sunglass cases 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 sunglass cases themselves would not be required.

The Marking Of The Plastic Bag Containing Empty Sunglass Cases Not Repacked in the U.S.

19 U.S.C. 1304 and 19 CFR Part 134, provide 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. In this case, the plastic bags in which the empty sunglass cases are imported will be printed with the words "Case Mexico" in large black lettering (14 point). This origin marking we find to be conspicuous, legible and permanent. Accordingly, the country of origin marking on the plastic bags satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is acceptable for those sunglass cases sold or distributed free of charge in the plastic bag.

The Marking On 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 "U.S.A." printed on the top panel of the carton and "Rochester, New York, U.S.A" printed on the back panel of the carton. Accordingly, the actual country of origin of the sunglass case 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 "Case Made in Mexico" which appear directly below the U.S. reference "U.S.A" on the top panel and "Rochester, New York, U.S.A." on the back panel 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 "Cases Made in Mexico" which appears on the top and back panel of the carton is legibly and conspicuously located on the carton. With respect to the top panel of the carton, other consumer information such as, the style and color appears on the same panel as the origin marking. Also, the history of the B&L product is located on the back panel where another country of origin marking is located. Both origin markings appear in contrasting lettering and are easy to find and easy to read as required by 19 CFR 134.41. Based on these considerations, we find that the marking "Case Made in Mexico" printed on the top and back panel of the submitted sample carton in which the imported sunglass cases are repacked, satisfies the marking requirements of 19 CFR Part 134 and is an acceptable country of origin marking for the imported sunglass cases. With respect to the marking "Sunglasses Made in U.S.A." printed on the top panel of the sample carton, we advise you to contact the Federal Trade Commission, Division of Enforcement, 6th & Pennsylvania Avenue, NW, Washington, D.C. 20508 before your client B&L undertakes to mark the cartons in this fashion, since use of the phrase "Made in U.S.A." is under that agency's jurisdiction.

HOLDING

Assuming the district director pursuant to 19 CFR 134.32(d) and 19 CFR 134.34 authorizes an exception from marking the sunglass cases, marking the plastic bags and the cardboard cartons in the manner described above will satisfy 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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