HQ 734174 - Country of origin marking requirements for Tease Tarts candy made in Brazil, plastic bags, individual candy rolls; 19 CFR 134.46, 19 CFR 134.41 - United States International Trade Commision Rulings

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HQ 734174

MAR-2-05 CO:R:C:V 734174 RSD

CATEGORY: MARKING

Mr. Edward Dee, Chairman
CeDe Candy, Inc.
P.O. Box 271/1091
Lousons Road
Union, N.J. 07083

RE: Country of origin marking requirements for Tease Tarts candy made in Brazil, plastic bags, individual candy rolls; 19 CFR 134.46, 19 CFR 134.41

Dear Mr. Dee:

This is in response to your letter dated May 13, 1991, concerning the country of origin marking requirements for imported Tease Tart candies made in Brazil and repackaged in the U.S. We have a sample of a plastic bag filled with rolls of Tease Tart candies.

FACTS:

Tease Tart candies are made in Brazil and imported in bulk to the U.S. The candies will be repackaged in the U.S. by American distributors. The candies come in individual rolls, which are wrapped in plastic. The rolls of candy are packaged together in a plastic bag. Each roll of candy has the words "Farley's Tease.Tarts Sweet & Sour Candies Product of Brazil" printed on them in three locations. The plastic bag in which the candy rolls are packaged has the following:

Packaged BY
FARLEY CANDY CO.
Skokie, IL 60077
printed on it. The writing on each roll of candy can be seen through clear portion of plastic bag in which they are packed.

ISSUE:

Does the country of origin marking on each roll rather than the plastic bag satisfy the country of origin marking law?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.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. As provided in section 134.41, Customs Regulations (19 CFR 134.41), the country of origin marking is considered to be conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

In addition, section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., or the name of any foreign country or locality other than the name of 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. Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears (HQ 708994, dated April 24, 1978). The purpose of 19 CFR 134.46 is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the origin of the imported article.

Upon a review of the plastic bag filled the individual rolls of candy, we find that the ultimate purchaser will be able to find and read the country of origin marking on the rolls of the Tease Tart candy. The ultimate purchaser would thus know that the candy is a product of Brazil. Accordingly, the country of origin marking on the rolls of candy is in accordance with 19 CFR 134.41.

However, the prominent reference to a locality in the U.S., "Skokie, Il," on the plastic bag triggers the requirements of 19 CFR 134.46. Under the requirements of 19 CFR 134.46, the name of the country of origin must appear in close proximity, in a comparable size, preceded by "Made in," "Product of," or words of similar meaning as the name of the U.S. locality. In this instance the requirements of 19 CFR 134.46 are not satisfied because the country of origin marking on the rolls of the candy is not in close proximity to the words "Skokie, IL." In addition, the marking on the rolls of candy is smaller than the "Skokie, Il." Accordingly, to satisfy the requirements of 19 CFR 134.46, the name of the country of origin, Brazil, must appear on the plastic bag on the same side as the words "Skokie, Il," in a comparable size preceded by "Made in," or "Product of," or other words of similar meaning.

HOLDING:

The country of origin marking on each roll of candy in the plastic can be found and read by the ultimate purchaser and therefore is acceptable under 19 CFR 134.41. However, the reference on the plastic bag to "Skokie, Il," triggers the requirements of 19 CFR 134.46. The country of origin marking only on the individual rolls of candy does not satisfy the requirements of 19 CFR 134.46. In order to satisfy 19 CFR 134.46, the country of origin marking must be on the same side of the plastic bag, in a comparable size as the reference to "Skokie, Il" preceded by "Made in," "Product of" or other words of similar meaning.

Sincerely,

John Durant, Director
Commercial Rulings Division

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