HQ 560210 - Country of origin marking of disposable diapers - United States International Trade Commision Rulings

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HQ 560210

January 24, 1997
MAR-05 RR:TC:SM BLS

CATEGORY: MARKING

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

RE: Country of origin marking of disposable diapers

Dear Ms. Staats:

This is in reference to your letter dated October 10, 1996, on behalf of Paragon Trade Brands, requesting a ruling regarding the country of origin marking requirements of disposable diapers.

FACTS:

The diapers are made and packaged in sealed plastic bags in Mexico for sale in the U.S. The diapers are not sold on an individual basis but will be offered for sale to the ultimate purchaser at retail only in these containers.

The front panel of the individual plastic bag has the name of the product, the U.S. distributor's name and logo, and the number and size of diapers contained in a bag. The top panel shows the name of the product, name and logo of the U.S. distributor, number and size of diapers, and a warning statement.

The rear panel of the bag includes a pink insert on a white background which contains information on the product, caution labels, and use statements. The insert also contains patent information, a reference to "Jim Henson Muppet Babies", and the wording "Distributed by Lucky Stores, Inc. Dublin CA 94568." The submitted sample packaging has the words "Made in Mexico" placed above the U.S. distributor's name on this rear panel. The side panel of the bag has the name and logo of the U.S. distributor, the words "MADE IN MEXICO" stamped in blue ink, and the product identification number.

You state that Paragon Trade Brands proposes to omit from the packaging the words "Made in Mexico" on the rear panel, and leave untouched country of origin and other information presently shown on the side panel. You believe that this marking would satisfy the requirements of section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304).

ISSUE:

Whether the proposed country of origin marking on the retail packaging satisfies the requirements of 19 U.S.C. 1304.

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 (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 United States the English name of the country of the article. Part 134, Customs Regulations (19 CFR 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

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 them, if such marking should influence his will." United States v. Friedlaender & Co., 27 C.C.P.A. 297, C.A.D. 104 (1940). As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser is able to find the marking easily and read it without strain. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)) defines the "ultimate purchaser" generally as the last person in the United States who will receive the article in the form in which it was imported.

However, articles for which the containers will reasonably indicate the country of origin are excepted from marking under 19 U.S.C. 1304(a)(3)(D). For an exception to be granted under 19 U.S.C. 1304(a)(3)(D), the article must generally be imported in the container and that container must generally reach the ultimate purchaser unopened. See also 19 CFR 134.32(d). In the instant case, this exception will apply since the diapers are sold only at retail in the plastic packaging.

Section 134.46, Customs Regulations (19 CFR 134.46), requires that when the name or city 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 the stringent marking requirements of 19 C.F.R. ?134.46 is to ensure that an ultimate purchaser is not misled or deceived by a non-origin reference into believing that the country of origin is other than the actual country of origin from reading the non-origin reference. In fact, when applying the stringent marking requirements of 19 C.F.R. ?134.46, Customs takes into account the question of whether the presence of words or symbols on an imported article or its container are likely to mislead or deceive the ultimate purchaser as to the actual country of origin of the article.

Customs has recognized that but for the existence of this strict regulation, there would be more flexibility in determining whether a marking is misleading, thus triggering the special marking requirements of 19 C.F.R. ?134.46. For this reason, Customs published in the Federal Register, 60 Fed. Reg. 57559, 29 Cus Bull 21 (November 29, 1995) a proposal to amend 19 C.F.R. section 134.46 shall only apply if the non-origin reference is likely to mislead or deceive the ultimate purchaser as to the actual country of origin of the article.

Consequently, if Customs concludes that a non-origin locality reference on an article or its container would not mislead or deceive an ultimate purchaser as to the actual country of origin of the imported article, Customs policy is that the special marking requirements of section 134.46 are not triggered, and the origin marking only needs to satisfy the general marking requirements of permanency, legibility and conspicuousness under 19 U.S.C. ?1304 and 19 C.F.R. Part 134. See, e.g., Headquarters Ruling Letter (HRL) 559370 dated February 26, 1996. In this regard, it is noted that Customs has often distinguished those cases in which the circumstances were such that reference to a place other than the country of origin on an imported article would not confuse the ultimate purchaser as to the true country of origin, e.g., design/decoration use of locality name, and finding that the country of origin marking was conspicuous in that it appeared in a usual place, in lettering sufficient to be easily found and observed.

You contend that 19 CFR 134.46 is not triggered in this case because an ultimate purchaser would not be misled or deceived into believing that the origin of the diapers is the U.S. In your opinion, the words "MADE IN MEXICO" on the side panel can be easily seen and read by an ultimate purchaser upon casual examination of the package. You point out that this marking is stamped in blue ink, is in a print larger than the print size of the U.S. distributor, and is of a permanent nature. Further, you believe that an ultimate purchaser would recognize that the reference to the U.S. distributor on the rear panel indicates only the location of such distributor and is not a statement of origin. You also cite HRL 559370 as a case where Customs found that 19 CFR 134.46 was not triggered by a U.S. geographical location.

In HRL 559370, which involved country of origin marking on a bottle of malt beverage, the words "Imported by Guinness Import Company, Stamford, CT.", were printed on the back label. In that case, we found that an ultimate purchaser would not be misled or deceived by these words into believing that the origin of the product was the U.S., but rather, where the importer was located. This was particularly so in view of the fact that the words "Brewed in Ireland" on the front label could be easily seen and read upon casual examination of the bottle.

We find that the facts in this case are not analogous to the facts in HRL 559370. In this regard, we note that the words "Imported by" (in HRL 559370) unequivocally convey to the ultimate purchaser that the product is imported and thus from a country other than the U.S. On the other hand, the words "Distributed by Lucky Stores, Inc. Dublin, CA..." convey no definitive information regarding origin, but without conspicuous and legible country of origin information on the packaging, could mislead an ultimate purchaser into believing that the U.S. is the country of origin of the product.

In this regard, we also find that the stamped blue "Made in Mexico" marking, unlike the "Brewed in Ireland" marking, cannot easily be seen and read upon casual examination of the package. In order to read it, the prospective purchaser must turn the package sideways and look at an area where there is no other information of interest. Further, it follows the product code so closely on the same line that the two tend to "run together." Viewed from the wrong angle or perspective, the wording may thus appear to be part of, or an extension of, the product code. It is also noted that this blue printing tends to smudge, affecting the permanency and legibility of the marking.

Under the circumstances, we find that the words "Distributed by Lucky Stores, Inc. Dublin CA 94568" on the back panel of the packaging, without any reference on this panel to the actual country of origin, may mislead an ultimate purchaser of the disposable diapers into believing that the country of origin of the product is a location in the U.S., thereby triggering the requirements of 19 CFR 134.46.

HOLDING:

The words "Distributed by Lucky Stores, Inc. Dublin, CA 94568" on the back panel of the packaging trigger the requirements of 19 C.F.R. ?134.46. Therefore, country of origin marking, preceded by the words "Made in" or "Product of" or other similar words, must appear in close proximity to these words denoting a U.S. geographical location. Such marking must be in at least the same size print as the words indicating the U.S. location and otherwise comply with the statutory requirements of legibility and permanence.

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
Tariff

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