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HQ 735371


October 19, 1993

MAR-2-05 CO:R:C:V 735371 RC

CATEGORY: MARKING

Ms. Marya Lenn Yee
Proskauer Rose Goetz & Mendelsohn
1585 Broadway
New York, New York 10036

RE: Country of origin marking of Toy Craft Kits; T.D. 91-7.

Dear Ms. Yee:

This is in response to your letter of September 21, 1993, requesting a ruling on behalf of Bostik, Inc., on the country of origin marking requirements for "Oodles" toy craft kits to be imported into the U.S. A sample kit was not submitted for review.

FACTS:

Each kit will contain the following items grouped by country of origin: a see-through travel pouch, pom-poms, chenille stems, 3-piece fluoro flexible tubing, straws, poly balls, red beads, green beads, wiggly eyes, popsicle sticks, wood sticks, and playing die, to be manufactured in Taiwan; Blu-Tack(trademark registered), a reusable adhesive, to be manufactured in Australia; a game board, idea guide and personalized kit tag to be manufactured in the U.S. These items will be packaged in various combinations and sold at retail as kits. All packaging will be done in the U.S.

ISSUE:

What is the proper country of origin marking for the toy craft kits?

LAW AND ANALYSIS:

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser the English name of the country of origin of the article. 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) defines the "ultimate purchaser" generally as the last person in the United States who will receive the article in the form in which it was imported. The marking must be conspicuous to the ultimate purchaser. Here, the ultimate purchaser is the person who buys the toy craft kit at retail. The "country of origin" for marking purposes is defined by section 134.1(b), Customs Regulations (19 CFR 134.1(b)), to mean the country of manufacture, production, or growth of any article of foreign origin entering the U.S.

When articles manufactured in different countries are combined or assembled, Customs must determine the country of origin, for marking purposes. The country of origin is the country where the article last underwent a "substantial transformation", that is, processing which results in a change in the article's name, character, or use. Section 134.35, Customs Regulations (19 CFR 134.35).

Here, the combining of the toy craft kit items into sets does not constitutes a substantial transformation because the resulting product is not a new article in which the constituents lose their separate identities. Each kit item remains clearly identifiable. Therefore, under section 304 of the Tariff Act, the kits must be marked to indicate to the ultimate purchaser in the U.S. the foreign origin of the items contained therein.

The required marking for such articles is addressed in T.D. 91-7, in which Customs determined that materials of foreign origin which comprise sets, mixtures, or composite goods must be marked separately to indicate their country of origin unless substantially transformed. Pursuant to the general marking requirements and T.D. 91-7, the toy craft kits must be marked to indicate the country of origin of the components. The marking you propose:

Craft components made in Taiwan. Blu-Tack made in Australia by Bostik (Australia) Pty. Ltd. Related packaging components made in U.S.A. Packaged in the U.S.A.
complies with 19 U.S.C. 1304. The items of U.S. origin are not subject to the requirements of the marking statute since they are not of foreign origin. See HQHQ 735009 (dated July 30, 1993).

If you decide to indicate that some of the items are of U.S. origin, then the marking will need to comply with the requirements of the Federal Trade Commission. We suggest that you direct any questions on this aspect of the issue to the Federal Trade Commission.

HOLDING:

Your proposed country of origin marking satisfies the requirements of 19 U.S.C. 1304. It must appear in a conspicuous location in lettering of at least five points. (A point is a unit of type measurement equal to 0.01384 inch or nearly 1/72 inch, and all type sizes are multiples of this unit.) In order to be in a conspicuous place, the marking must be visible to the ultimate purchaser prior to purchase.

Sincerely,

John Durant, Director

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