HQ 560697 - Country of origin marking of packages for imported merchandise; 19 CFR 134.46 - United States International Trade Commision Rulings

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HQ 560697

December 17, 1997

MAR-2-05 RR:TC:SM 560697 MLR

CATEGORY: MARKING

John M. Peterson, Esq.
Neville, Peterson & Williams
80 Broad Street, 34th Floor
New York, NY 10004

RE: Country of origin marking of packages for imported merchandise; 19 CFR 134.46

Dear Mr. Peterson:

This is in reference to your letter of October 9, 1997, requesting a ruling on behalf of Target Stores ("Target"), regarding the country of origin marking of certain packages of imported merchandise. Photocopies of the packaging were submitted with your request.

FACTS:

At issue are various cardboard retail packages containing imported articles. The first two articles are the "Car and Driver Deluxe Auto Emergency Light" which is a multi-purpose light, and the "Car and Driver" First Aid Kit which contains various emergency first aid items. The multi-purpose light will be imported from China, but the origin of the emergency kit is not known at this time. It is stated that in their condition as imported, both will be packaged in a cardboard box, the light in a box measuring approximately 8 « x 2 « x 3 inches and the emergency kit in a box measuring approximately 7 « x 5 « x 2 3/4 inches. The bottom panels of both boxes will feature a UPC bar code, and will basically contain the following statement:

Distributed by Dayton-Hudson Corporation
Minneapolis, MN 402
1996 DHC All Rights Reserved
Manufactured under license from Hachette Filipacchi Magazines, Inc.

Made in China (or other country of origin for emergency kit)

The country of origin marking will appear in 7 point bold face type, and the other words will appear in 6 point type. The country of origin will appear approximately 3/4 of an inch below the Minneapolis address.

The third article is the "Furio Home Recipe Box" which is a small wooden file box designed to hold recipe cards. In its imported condition, the recipe box will be imported in a cardboard box measuring approximately 6 1/4 x 5 x 3 inches and on the bottom will be the following statement:

Distributed by Dayton-Hudson Corporation
Minneapolis, MN 55402
C 1997 DHC All Rights Reserved
Style 2884N

Made in China

For questions or comments call 800-316-6151 or write to P.O. Box 1392, Minneapolis, MN 55440

All of the print will be in the same size and the "Made in China" will appear 1 « inches below the first reference to Minneapolis and about 1/4 inch above the second.

The third article is "The Garden Place Hyacinth Kit" which contains two glass vases and two hyacinth bulbs. In its imported condition from Mexico, it will be in a box measuring approximately 13 « x 7 x 4 inches. At the side the following statement will appear:

Distributed by Dayton-Hudson Corporation
Minneapolis, MN U.S.A.
C 1996 DHC All Rights Reserved

Made in Mexico

All of the print will be in the same size and the "Made in Mexico" will appear 1/4 inch below the Minneapolis address.

The fourth article is "Honors" Hosiery which will contain two girls' leggings. In its imported condition, the leggings will be in a box measuring 8 x 3 3/4 x 3/4 inches and the reverse side of the box will contain the following statement:

C 1997 DHC
All Rights Reserved
067A1646-001 RN 17730

Made in (country of origin)

It is stated that a reference to Dayton Hudson's Minneapolis address may be inserted after the letter "DHC", approximately « inch above the origin statement, and all print will be in the same size.

ISSUE:

Whether the proposed markings on the subject articles satisfy the marking requirements of 19 U.S.C. 1304.

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 imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article 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. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940).

Treasury Decision ("T.D.") 97-72, was published (62 FR 44211, August 20, 1997) amending section 134.46, Customs Regulations (19 CFR 134.46), to ease the requirement that whenever words appear on imported articles indicating the name of a geographic location other than the true country of origin of the article, the country of origin marking must appear in close proximity and in comparable size lettering to those words preceded by the words "Made in", "Product of", or other words of similar meaning. The effective date of the final rule was September 20, 1997. The revised section 134.46 provides 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 location 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, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, 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.

Since section 134.46 was revised to trigger the special marking requirements when a marking on an imported article or its container is capable of being misleading or deceiving, T.D. 97-72 removed 19 CFR 134.36(b) which disallowed an exception from marking when any article or retail container had a marking described in sections 134.46 or 134.47 implying that the article was made in a country other than the actual country of origin.

Accordingly, under the revised section 134.46, it must first be determined whether the marking on the subject cardboard boxes may deceive or mislead the ultimate purchaser regarding the country of origin of the finished instruments. In T.D. 97-72, in response to a comment, Customs specifically stated that a reference to the U.S. made in the context of a statement relating to any aspect of distribution, such as "Distributed by ABC Inc., Colorado, U.S.A.," would be misleading to the ultimate purchaser and would require country of origin marking in accordance with section 134.46. Therefore, as the subject containers will be labeled "Distributed by Dayton-Hudson Corporation, Minneapolis, MN" or a similar form thereof, we find that in each instance (including the "Honors" box if the reference is added), that the requirements of 19 CFR 134.46 are triggered. On all of the subject articles, the country of origin appears on the same side or panel of the box as the geographic location, and the country of origin markings are in at least the same size as the non-origin reference. Additionally, the country of origin markings stand out by having a space above and below them, and they are preceded by "Made in". Therefore, we find that the requirements of 19 CFR 134.46 and 19 U.S.C. 1304 in each instance will be satisfied.

HOLDING:

On the basis of the information and samples submitted, we find that the reference "Distributed by ..." on all of the subject articles, triggers the special marking requirements of 19 CFR 134.46. However, as the country of origin marking appears on the same side or panel of the box as the geographic location, are in at least the same size as the non-origin reference, stand out by having a space above and below them, and are preceded by "Made in", we find that the requirements of section 134.46 and 19 U.S.C. 1304 will be satisfied.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are 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

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