HQ 559680 - Country of origin marking of disposable diapers; 19 CFR 19 CFR 134.46 - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1996 HQ Rulings > HQ 559510 - HQ 559720 > HQ 559680

HQ
559680

May 8,
1996

CLA-2 RR:TC:SM 559680 BLS

CATEGORY: MARKING

Ms. Susanne Staats
Deloitte & Touche LLP
700 Fifth Avenue
Seattle, Washington 98104-5044

RE: Country of origin marking of disposable diapers; 19 CFR 19 CFR 134.46

Dear Ms. Staats:

This is in reference to your letter dated February 2, 1996, on behalf of Paragon Trade Brands, requesting a ruling concerning the country of origin marking of disposable diapers.

FACTS:

Disposable diapers are made and packaged in sealed plastic bags in Mexico. Information included on the sample plastic bags reflect that they contain 24 diapers for boys. The diapers are never sold on an individual basis but will be offered for sale to the ultimate purchaser at retail only in these containers.

The back panel of the bag includes a white insert on a blue background which contains three columns of information, and a fourth column with the manufacturer's bar code. The first column includes warning, caution and use statements. The second column contains, in descending order, patent information, a reference to "Paragon Trade Brands", the words "MADE IN MEXICO", and a reference to "Jim Henson Productions, Inc." (in connection with the "Muppet Babies" likeness reflected on the bag). Each reference is separated by a space to set it apart from the preceding and/or subsequent item of information. The third column contains a sub-panel which includes a telephone number to call if the consumer has questions or comments. Immediately beneath this panel are the words "Distributed by ALBERTSONS, INC. BOISE, IDAHO 83726." This reference is the last item of information in this column, and is located several lines below and one column to the right of the reference to the country of origin.

ISSUES:

1) Whether the diapers need to be individually marked with their country of origin.

2) Whether the country of origin marking on the plastic bag satisfies the special requirements of section 134.46, Customs Regulations (19 CFR 134.46).

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides, subject to specified exceptions, that 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 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. The primary purpose of the country of origin marking statute 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 the product, if such marking should influence his will." United States v. Friedlaender, 27 CCPA 297 (1940), as quoted with approval in National Juice Products Association v. United States, 10 CIT 48, 628 F. Supp. 978 (1986).

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 such 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., i.e., the last person in the U.S. to receive the article in the form in which it was imported, will receive it in its original unopened marked container. See Headquarters Ruling Letter HRL 731768 (December 8, 1988). In this case, the imported article is never sold on an individual basis and it is clear that the ultimate purchaser would receive the diapers in the sealed plastic packaging. Therefore, the exception from individual marking under 19 CFR 134.32(d) is applicable in the instant case.

Section 134.46, Customs Regulations (19 CFR 134.46), provides that, in order to prevent confusion to the ultimate purchaser, in any case in which the words "United States," or "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was
manufactured or produced, appear 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.

In the instant case, the sole country of origin marking on the container, "MADE IN MEXICO" is in close proximity to and in the same size as the reference to the U.S. locality, "BOISE, IDAHO..." Therefore, we find that the requirements of 19 CFR 134.46 are satisfied.

For your information and future reference, in practice Customs has applied a less stringent standard than the language of 19 CFR 134.46, in determining whether the country of origin marking on an imported article or its container is acceptable. That is, Customs takes into account the question of whether the presence of words or symbols on an imported article or its container can mislead or deceive the ultimate purchaser as to the actual country of origin of the article. If it is concluded that the non-origin locality reference would not deceive or mislead an ultimate purchaser as to the actual country of origin of the imported article, Customs policy is that the special marking requirements of 19 CFR 134.46 are not triggered, and the origin marking only needs to satisfy the general requirements of permanency, legibility and conspicuousness under 19 U.S.C. 1304 and 19 CFR Part 134. Accordingly, in order to conform 19 CFR 134.46 to Customs practice, Customs has proposed to amend 19 CFR 134.46 to reflect the fact that the special marking requirements of 19 CFR 134.46 shall apply only if the non-origin reference is likely to mislead or deceive the ultimate purchaser as to the actual country of origin of the article. See Notice of Proposed Rulemaking, published in the Federal Register, November 16, 1995 (60 FR 57559).

HOLDING:

1) Disposable diapers that are imported and sold to the ultimate purchaser in sealed plastic bags, properly marked as described above, may be excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d).

2) The words "MADE IN MEXICO" on the sample plastic bag are in close proximity to and in the same size lettering as the reference to the U.S. locality, "BOISE, IDAHO..." Therefore, we find that this marking will satisfy the requirements of 19 CFR 134.46.

Sincerely,

John

Previous Ruling Next Ruling