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HQ 559025

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June 6, 1995

MAR-2-05 R:C:S 559025 DEC

CATEGORY: MARKING

Mr. Fred Hobbs, President
Usher Products International, Incorporated 13428 West Avenue
San Antonio, Texas 78216

RE: Country of origin marking requirements for imported candies and mints distributed in the U.S. free of charge; Article 509; NAFTA Marking Rules; Ultimate purchaser; 19 CFR 134.1(d); 19 CFR 134.32(d)

Dear Mr. Hobbs:

This is in response to your letter dated February 2, 1995, requesting a ruling on the country of origin marking requirements for certain candies and mints imported from Mexico to be distributed in the United States free of charge.

FACTS:

You state that Usher International, Incorporated (Usher) intends to import candies and mints into the United States from Mexico that are specifically wrapped and sold to Usher's customers as "give away" products. These articles are imprinted with the logo and message of the particular customer who will distribute them in their restaurants, at trade shows, or at other marketing events. You state that your specific question pertains to whether there are additional marking requirements of the wrappers if they are imprinted with:

A. "American Restaurant of Seattle" or
B. "Miller Brewing Co., Milwaukee, WI" or C. "Distributed by Usher Products, San Antonio, Texas 78216"

In your letter, you also indicated that the end purchaser of your products will receive their ordered merchandise in a box properly marked with its country of origin (for purposes of this ruling, the candies and mints are presumed to be of Mexican origin).

ISSUE:

What are the country of origin marking requirements for the candies and mints imported into the United States in the manner described above?

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 United States 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 in the U.S. 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. The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act and the interim amendments to the Customs Regulations.

Section 134.1(g), defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the U.S. as determined under the NAFTA Marking Rules. Since the candies and mints are products of Mexico (we will assume for purposes of this ruling that the country of origin of the imported articles is Mexico), the NAFTA marking rules must be applied in determining the appropriate marking requirements of the imported articles.

In determining the country of origin marking requirements for the imported candies and mints, it first must be determined who is the ultimate purchaser in the United States of the imported articles. Section 134.1(d), provides that the ultimate purchaser of a good of a NAFTA country is the last person in the United States who purchases the good in the form in which it was imported. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. If the imported article is distributed as a gift, the recipient is the ultimate purchaser. However, if a NAFTA article is imported and distributed as a gift, the ultimate purchaser is not the recipient but the purchaser of the gift. See 19 CFR 134.1(d)(4).

Since the candies and mints are imported into the United States from Mexico (a NAFTA country, assuming the imported articles are goods of Mexico) as gifts or giveaways which are not intended to be sold in the United States, the ultimate purchaser of the imported articles is the last person who purchases the article in the United States in its imported condition and not the consumer who receives the imported
article as a gift or giveaway. Accordingly, the ultimate purchaser of the imported candies is the purchaser of the candies or mints who will distribute the articles in the United States free of charge.

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. Accordingly, provided the outermost container is marked with the article's origin, the candies and mints are excepted from country of origin marking.

Section 134.46, Customs Regulations (19 CFR 134.46), generally requires that when a name of any U.S. city or locality or the name of any foreign country 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 country of the imported goods.

Although section 134.46-type references, may appear on the wrappers of the candies and mints, the special marking requirements of 19 CFR 134.46 would not apply for marking these articles, if they are excepted from marking pursuant to 19 CFR 134.32(d).

In this case, the ultimate purchaser of the candies and mints is not the consumer who receives the candies or mints, but rather it is the company-customer who purchases these articles in the United States. Under these circumstances, any U.S. reference which may appear on the wrappers, would not mislead or deceive the ultimate purchaser as to the article's actual origin given the fact that the outermost containers will be marked with the article's actual country of origin. Accordingly, the marking requirements under 19 CFR 134.46 will not be invoked when such type references appear on the wrappers of the imported candies and mints which are to be distributed free of charge in the manner described above, provided the outermost containers are marked with the article's actual country of origin, "Mexico", pursuant to a 19 CFR 134.32(d) marking exception. See also, Headquarters Ruling Letter 735614, dated January 25, 1995.

HOLDING:

Assuming that the imported candies and mints are goods of Mexico (a NAFTA country), and are to be imported into the United States in the manner described above, the ultimate purchaser of the imported articles is the U.S. company who purchases the
candies or mints and not the consumer who receives them. Thus, provided the outermost containers are marked to indicate "Mexico" as the origin of the candies and mints pursuant to a 19 CFR 134.32(d) marking exception, the imported candy itself is excepted from country of origin marking, and the special marking requirements of 19 CFR 134.46 would not be invoked if 134.46-type references appear on the wrappers themselves.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division

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