HQ 559064 - Country of Origin Marking on Plastic Food and Beverage Containers; Plastic Tableware and Kitchenware; Plastic Toys; Marking Exception; polybag; 19 CFR 134.32(d) - United States International Trade Commision Rulings

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HQ 559064

June 30, 1995

CLA-2 R:C:S 559064 MLR

CATEGORY: MARKING

Michael A. Johnson, Esq.
O'Donnell, Byrne & Williams
20 North Wacker Drive
Suite 1416
Chicago, IL 60606

RE: Country of Origin Marking on Plastic Food and Beverage Containers; Plastic Tableware and Kitchenware; Plastic Toys; Marking Exception; polybag; 19 CFR 134.32(d)

Dear Mr. Johnson:

This is in reference to your letter of February 28, 1995, requesting a ruling on behalf of Tupperware U.S., Inc. ("Tupperware"), concerning a marking exception for certain plastic Tupperware products. A sample was submitted with your request.

FACTS:

Tupperware is a manufacturer of plastic items, including food and beverage containers, plastic tableware, kitchenware, and toys. Tupperware products are manufactured in 15 countries, and Tupperware has four marketing regions. It is stated that traditionally, Tupperware manufactures its products in the country or region in which they will be marketed. However, certain product lines, such as toys, are only manufactured in a few plants. Additionally, extra stock may be exported to regions where demand is high, or where premium promotions are introduced.

Tupperware states that because country of origin marking is not required among countries in the European Union ("EU"), Tupperware products manufactured there frequently do not contain a country of origin mold. The same is true for Tupperware products manufactured in the U.S. It is also stated that Tupperware does not mark its products with adhesive labels since a variety of adhesives are required depending on the type of plastic the item is made from, and because removing such labels may abrade the plastics and is considered an onerous task by many consumers. However, Tupperware states that it frequently includes an instructional paper flyer inserted into the same polybag as the product, which describes its use. The sample instructional flyer does not note the country of origin of the plastic Tupperware item. Tupperware also states that some of the products are too small to be marked.

It is further stated that Tupperware uses direct marketing to sell its products, and does not sell its products through retail outlets. Therefore, they are only sold by representatives direct to the ultimate home consumers, traditionally by means of a "Tupperware party." Sometimes Tupperware sales representatives market the products from catalogs to interested consumers. In the U.S., the Tupperware products are stated to be distributed in one of two methods. Under the first method, a distributor places a weekly order for the products with Tupperware's manufacturing unit. The product ordered is shipped to the distributor in d-paks which is a standard carton containing a single item in a specified quantity. A distributor must order in multiples of this quantity, as no partial d-paks are shipped. In many instances, the product inside the d-paks is packed in individual, sealed polybags. This is the case when descriptive literature is provided, or when it is necessary to communicate the country of origin of the product by some means other than molding into the product. At the distributor's premises, the d-paks are opened and individual products are placed in larger polybags by consumer order and made available to the sales representative for delivery to the consumer or party hostesses. If the individual products are sealed in a polybag, this bag remains intact and is placed in the larger polybag for delivery.

The second method of delivery within the U.S. is called "Tupperware Express." Under this distribution method, each consumer order is placed on an individual order form, as in the first method, but each order is entered separately into Tupperware's order fulfillment system. These orders are batched by ZIP code and filled using an automated "robopick" system. Each consumer order is then individually packed and shipped to the end consumer directly by the postal service. Products that are individually polybagged are stored in totes until needed on the robo line and are placed in the line in their packaged form. Each order is packed individually at the end of the line and shipped.

Tupperware states that the products without a country of origin marking molded into the plastic are placed individually at the plant of manufacture in clear, see-through polybags which bear a label identifying the country of manufacture. It is stated that the need for this method of marking is communicated to the origin plant when an order for shipment is placed. The sample of the polybag is continuously printed the length of the polybag with "MADE IN FRANCE," along with a triangular recycling symbol, denoting a "2", and is not sealed. It is stated that the print of the country of origin marking will not be less than 1 centimeter in height, in capital letters, and will not be across any seam of the polybag.

ISSUE:

Whether the plastic Tupperware products may be excepted from marking pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d), provided the individual polybag itself is marked with the country of origin.

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 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.

Pursuant to 19 U.S.C. 1304(a)(3)(D) and section 134.32(d), Customs Regulations {19 CFR 134.32(d)}, an exception from individual marking is applicable where the marking of the container of an imported article will reasonably indicate the origin of the article. This exception is normally applied in cases where the imported article(s) is imported in a properly marked container and Customs officials at the port of entry are satisfied that the ultimate purchaser in the U.S. will receive it in its original marked container.

Tupperware claims that an exception from marking each plastic item individually should be found because each individual polybag will be marked with the country of origin of the individual plastic product packed therein before the product reaches the consumer. It is stated that because in both methods of distribution, individually polybagged items are either packed at the distributor's facility or at the Tupperware plant, there is no opportunity for the sales representatives to unpack them prior to delivery. Therefore, it is claimed that each Tupperware product will be received by the ultimate purchaser in a polybag indicating the country of origin.

As support for marking the polybag instead of the plastic item itself, Headquarters Ruling Letter (HRL) 733694 dated April 15, 1991, is cited where Customs held that curtain panels imported from Turkey in clear cellophane bags containing the curtain panel and a cardboard insert giving product information, the name of the importer, and the country of origin were entitled to the exception provided under 19 U.S.C. 1304(a)(3)(D). Customs stated that since the cardboard inserts had all of the product information and the importer assured Customs that the products were never sold without their cellophane bags, marking only the cardboard insert was sufficient. You also cite HRL 731853 dated December 26, 1989, (golf balls need not be individually marked provided the district director was satisfied that the balls were sold in their original retail packaging containing the country of origin); HRL 732063 dated January 19, 1989 (boxes labeled with the country of origin and part number of transmission gears and parts was sufficient country of origin marking); and HRL 735039 dated March 24, 1993 (marking the blister cards containing dental instruments was sufficient). Accordingly, it is claimed that since Tupperware's products are delivered to the ultimate purchaser by a direct force of sales representatives, or directly from the manufacturing plant in the original individual polybag packaging into which the Tupperware products are packed, an exception under 19 U.S.C. 1304(a)(3)(D) should be found because Tupperware can reasonably assure that its products will reach the ultimate purchaser in the polybags containing the country of origin marking.

We note that in each of the cited rulings, the country of origin was not found on a polybag but was printed on a cardboard insert, retail box, or blister card. However, Customs has discussed the country of origin marking on polybags. In HRL 733796 dated June 10, 1991, Customs found that five undergarments, not individually marked, but packed together in a transparent, heat-sealed ziploc-type polybag, and printed with the country of origin of the undergarments (China), the U.S. distributor, and other product information, met the requirements of 19 U.S.C. 1304. However, in C.S.D. 90-17, it was held that an exception from country of origin marking under 19 CFR 134.32(d) could not be approved for sunglasses imported in an unsealed clear plastic bag, approximately 9" by 3", and printed with the words "Made in Taiwan" because the retailer or wholesaler could easily remove the sunglasses from their packaging. However, it was noted that an exception could be found if the bag were sealed.

In HRL 734541 dated October 8, 1992, the marking of a polybag in lieu of pins themselves was considered. Relevant factors were discussed whether an article is likely to remain in its original container. These factors included the chain of distribution, the type of container, and the nature of the article. In HRL 734541, the importer did not distribute the pins directly to the ultimate purchaser, but rather through distributors, and therefore, could not conclusively state that the pins would remain in their individual bags in all cases until receipt by the ultimate purchaser. However, statements by two distributors were submitted indicating that they do not remove the pins from their individually marked polybags prior to delivery to their clients, and one such statement from a client was submitted. Customs stated that although these statements alone were not conclusive, the fact that each pin was individually packaged in its own heat-sealed bag tended to show that the pins were designed to be distributed in this fashion. Also, because the pins were small and could get lost or tarnished were they to be removed prior to receipt by the ultimate purchaser, was further evidence that they would remain in their marked polybags. Accordingly, Customs found that it was extremely likely that the pins would remain in their original heat-sealed polybags until receipt by the ultimate purchaser, and that the marking of the individual polybags in lieu of the pins themselves was acceptable.

By contrast, in HRL 734314 dated January 27, 1992, Customs found that the country of origin marking on polybags of articles delivered to consumers by mail, based on catalog sales, were more for the benefit of the importer in tracking inventory than for the benefit of the ultimate purchasers. It was stated that because the polybag containers were unsealed and disposable, Customs was not convinced that they would always remain with the articles until the articles reached the ultimate purchaser. Therefore, although the country of origin marking on the polybags was conspicuous for purposes of 19 U.S.C. 1304 and 19 CFR 134.41(b), the articles themselves had to be conspicuously marked with their country of origin, as there were no assurances that in all foreseeable circumstances the articles would reach the ultimate purchasers in their original unopened marked containers.

In this case, the polybags are not sealed, which were reasons for disallowing an exception from marking in C.S.D. 90-17 and HRL 734314. Tupperware has stated that it will notify its sales representatives that the plastic items are to be delivered in the polybags containing the country of origin marking. However, because the polybags are flimsy and are not sealed, and because numerous sales representatives are involved in distributing the Tupperware products to the ultimate purchasers, we are not satisfied that in all foreseeable circumstances that the plastic items will reach the ultimate purchaser in the marked polybag. In addition, along with the marking "MADE IN FRANCE," the polybag is printed with a triangular recycling symbol denoting a "2", which appears to indicate that the polybag is recyclable, and not the plastic item. Therefore, it does not appear clear that the country of origin marking on the polybag refers to the plastic Tupperware product. Accordingly, eligibility for an exception under 19 CFR 134.32(d) has not been established.

HOLDING:

Based upon the information provided, it is our opinion that because the polybags are not sealed and are flimsy, and because numerous sales representatives are involved in distributing the Tupperware products to the ultimate purchasers, we are also not satisfied that in all foreseeable circumstances that the plastic items will reach the ultimate purchaser. Therefore, the Tupperware products are not excepted from marking under 19 CFR 134.32(d).

Sincerely,

John Durant, Director

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