HQ 734469 - Country of origin marking of sunglasses imported from various foreign countries; conspicuous; close proximity; U.S. locality; 19 CFR 134.46; C.S.D. 92-33; HQ 732374; HQ 732099: refers ultimate purchaser to look for origin in another location - United States International Trade Commision Rulings

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HQ 734469

September 30, 1992

Mar-2-05 CO:R:C:V 734469 AT

CATEGORY: MARKING

Andrew G. Halpern, Esq.
Strasburger & Price, L.L.P.
901 Main Street
Suite 4300
Dallas, Texas 75202

RE: Country of origin marking of sunglasses imported from various foreign countries; conspicuous; close proximity; U.S. locality; 19 CFR 134.46; C.S.D. 92-33; HQ 732374; HQ 732099: refers ultimate purchaser to look for origin in another location

Dear Mr. Halpern:

This is in response to your letters dated January 16 and August 6, 1992, on behalf of The Bonneau Company (Bonneau), requesting a ruling on the country of origin marking of imported sunglasses with hang tags attached before or after importation into the U.S. Samples of the sunglasses and the hang tags with the proposed marking which are to be attached were submitted with your letters.

FACTS:

You state that Bonneau intends to import sunglasses from various countries to be sold at retail stores in the U.S. You also state that Bonneau's normal course of business is to source its products from manufacturers overseas and receive direct shipment from the manufacturers at the port of Dallas-Fort Worth, Texas. You claim that each of these manufacturers is responsible for marking the earpiece of each pair of sunglasses with the country of origin. The country of origin marking is designated on the sunglasses at the time of manufacture by imprinting the marking into the plastic molding of the earpiece. Examination of the sample sunglasses indicates that the country of origin marking is printed on the earpiece in lettering approximately 4.5 point (a point is a unit of measurement approximately equal to 0.01384 inches or nearly 1/72 inches and all type sizes are a multiple of this unit). You also state that because sunglasses are considered medical devices, Food and Drug Administration (F.D.A.) labeling regulations require the disclosure of the manufacturer or distributor and a U.S. place of business on a label. Therefore, in order to facilitate Bonneau's compliance with the F.D.A. labeling requirements, Bonneau proposes to have hang tags attached to the nose piece of each pair of sunglasses by the manufacturer or by Bonneau in the U.S. The front of the sample hang tag is marked with the style of sunglasses followed by the words "Eyewear By Bonneau". The back top portion of the hang tag is marked with the words "The Bonneau Company Dallas, Texas 75234, U.S.A." in black ink in lettering approximately 4.5 point. Directly below, the words "Made in Country Indicated On Sunglasses" is printed in black ink in lettering approximately 5 point. Other consumer information such as the price, ANSI approval and bar code are also printed on the back of the hang tag.

You contend that since each pair of sunglasses is properly marked with the country of origin on the earpiece the proposed marking "Made in Country Indicated On Sunglasses" printed on the back of the hang tag satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

ISSUES:

Does the marking on the sunglasses as described above satisify the country of origin marking requirements set forth in Section 304 of the Tariff Act of 1930, as amended?

Does the proposed marking on the hand tag marked in the manner described above satisfy the marking requirements of 19 CFR 134.46?

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, C.A.D. 104 (1940). 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), Customs Regulations (19 CFR 134.1(d)) defines ultimate purchaser as "generally the last person in the U.S. who will receive the article in the form in which it was imported." The definition then gives examples of who might be the ultimate purchaser if the imported article is used in the manufacture, if the imported article is sold at retail in its imported form and if an imported article is distributed as a gift. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this case, the ultimate purchaser of the sungalsses is the consumer who purchases the product at retail.

Are The Sunglasses Conspicuously Marked With The Country Of Origin?

Section 134.41, Customs Regulations (19 CFR 134.41), provides that the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

In this case, we find that the country of origin marking printed on the earpiece is conspicuous. The country of origin marking is easy to find since it is placed on the earpiece; a location where an ultimate purchaser would expect to find such a mark prior to purchasing the sunglasses. Furthermore, because the country of origin marking is printed in approximately 4.5 point lettering, this marking is both easy to find and read without strain.

Does The Marking On The Hang Tag Marked In The Manner Described Above Satisfy The Marking Requirements Of 19 CFR 134.46?

The second issue presented in this case is whether the proposed marking "Made in Country Indicated On Sunglasses" printed on the attached hang tag is an acceptable country of origin marking in view of the fact that the words "Dallas, Texas U.S.A." appear directly above the country of origin marking.

In determining whether the marking is acceptable, Customs will take into account the presence of words or symbols on an article which may mislead the ultimate purchaser as to the country of origin. Consequently, if the words "United States," or "America," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality other than the country of origin appear on the imported article, special marking requirements are triggered. Section 134.46, Customs Regulations (19 CFR 134.46), requires that 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, 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 origin of the imported goods.

The special marking requirements set forth in section 134.46 are triggered by the presence of the words "Dallas, Texas U.S.A." printed directly above the country of origin marking. Accordingly, the actual country of origin of the sunglasses must appear "in close proximity" to the U.S. reference and in lettering of at least a comparable size. Therefore, the critical issue presented in this case is whether the marking "Made in Country Indicated On Sunglasses" printed directly below the words "Dallas, Texas U.S.A." satisfies the country of origin marking requirements of 19 CFR 134.46.

Customs has previously approved country of origin markings which do not designate a specific country of origin in close proximity to the U.S. reference but instead directs the ultimate purchaser to a conspicuous location where the country of origin can be found on the article. For example, in C.S.D. 92-33 (September 2, 1992), Customs determined that the language "See Part Number Label For Country of Origin" printed on stand-alone boxes and outside wrappers containing imported engine parts immediately beneath a U.S. address, was acceptable if the part number label displaying the name of the country of origin was easily visible to the ultimate purchaser. See also, HQ 732374 (July 7,1989), Customs approved the language "Refer to neck label for country of origin" printed on the outside of a poly bag containing men's dress shirts immediately beneath a U.S. address, provided the neck label displaying the name of the country of origin in each shirt was easily visible to the ultimate purchaser; HQ 732099 (November 3, 1989), in which Customs approved the country of origin marking "See Bulb For Country of Origin" where the bulbs were individually marked and their containers were unsealed. Similarly in this case, we find that the proposed method of marking satisfies the requirements of 19 CFR 134.46. The words "Made in Country Indicated on Sunglasses" appears in close proximity and at least in comparable size to the U.S. reference "Dallas, Texas U.S.A.". Moreover, the actual country of origin is conspicuously marked on the earpiece of each pair of sunglasses being that the marking is both easy to find and read by an ultimate purchaser.

HOLDING:

The proposed method of marking hang tags attached to conspicuously marked sunglasses by the manufacturer or Bonneau in the U.S., as described above, satisfies the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

Sincerely,

John Durant, Director

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