NY D82465 - COUNTRY OF ORIGIN MARKING OF IMPORTED ARIZONA BEVERAGES; ARTICLE 509 - 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 > 1998 NY Rulings > NY D82465 - NY D82529 > NY D82465

Previous Ruling Next Ruling
NY D82465

September 28, 1998

MAR-2 RR:NC:SP:232 D82465

CATEGORY: MARKING

Mr. Nick Sabetti
New Wave Beverage Inc.
4500 Eastgate Parkway
Mississauga, Ontario
Canada L4W 3W6

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED ARIZONA BEVERAGES; ARTICLE 509

Dear Mr. Sabetti:

This is in response to your letter dated September 8, 1998 requesting a ruling on whether the proposed marking "Product of Canada" is an acceptable country of origin marking for imported beverages if other markings "Arizona", "USA", "Asia Plum", "India Rose" "California" "Florida" and "Manufactured for Ferolito, Vultaggio & Sons, Lake Success, NY 11042 USA, Beverage Marketing USA, Inc." appear on the article which are countries or localities other than the actual country of origin of the article. Marked samples were submitted with your letter for review.

Samples of five products referred to as "Batch #2" were submitted with your request. The products include Arizona Honey Lemon Iced Tea, Arizona Asia Plum Green Tea, Arizona Sports Can Iced Tea with Lemon Flavor, Arizona Total Sport and Arizona Original Iced Tea with Lemon Flavor. The marking "Manufactured for Ferolito, Vultaggio & Sons, Lake Success, NY 11042 USA, Beverage Marketing USA, Inc." appears on the back of the glass bottles, and on the side of the plastic containers near the UPC code.

The Honey Lemon Iced Tea is packaged in a glass bottle holding 20 ounces. The bottle has a brown checkered background on which pictures of various labels advertizing lemons appear on all sides of the container. The labels show different brand names, pictures of lemons, lemon trees, female figures picking or carrying baskets of lemons. Some of the labels have references in very small print to "Florida", and "California". One label is titled "India Rose" in red legible lettering. The name "Arizona" appears on the front of the bottle and on top of the cap. This product is marked "Product of Canada" on the back label right above "1997 Beverage Marketing USA, Inc."

The Asia Plum Green Tea is packaged in a glass bottle holding 20 ounces. The bottle has light green and dark purple colors and shows landscape scenes from the Orient. The name "Arizona" appears on the front and back of the bottle, and on top of the cap. This item is marked "Product of Canada" on the side of the bottle at the base of the neck.

The Sports Can Iced Tea with Lemon Flavor is packaged in a plastic container holding 24 ounces. The container is beige with various geometric designs and has a gray snap off cap. The name "Arizona" appears on the front and back of the container. This item is marked "Product of Canada" on the lower part of the back label.

The Total Sport is packaged in a plastic container holding 24 ounces. The container and snap off cap are gray. The front label of the product has "Total Sport" in blue lettering, outlined in white. Directly beneath this lettering, is a depiction of an American flag. The name "Arizona" appears on the front of the container. This item is marked "Product of Canada" on the lower back of the container.

The Original Iced Tea with Lemon Flavor is packaged in a glass bottle holding 16 ounces. The name "Arizona" appears on the front and back of the container, on top of the cap and along the top of the neck of the bottle. The neck of the bottle also is marked "USA" in red, white and blue letters directly above a "Peter Max" logo. Next to the "USA" marking are depictions of an American flag. The front of the bottle has a depiction of the head of the Statue of Liberty. This item is marked "Product of Canada" on the lower back label.

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 (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 its container) will permit, in such a manner as to indicate the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.45(a)(2) of the regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules.

Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases 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, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, 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 order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears.

Section 134.47, Customs Regulations (19 CFR 134.47), provides that when the name of a place other than the country of origin appears as part of a trademark or trade name or as part of a souvenir marking, the name of the actual country of origin must appear in close proximity to the place name "or in some other conspicuous location". Whether the country of origin appears "in close proximity" or in some other conspicuous place, the name of the country of origin must be preceded by "Made in," "Product of," or words of similar meaning. In other words, if the question concerns a trademark, trade name or souvenir marking, the country of origin marking need only meet the general standard of conspicuousness.

For the purposes of 19 CFR 134.46, the marking of the various products, does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and are not acceptable country of origin markings for the imported beverages. The Honey Lemon Iced Tea is marked in close proximity to the U.S. address, but the marking is not legible or conspicuous. The lettering should be larger and darker. We do not believe that the references to "India Rose", "California" and "Florida" in the "lemon" labels on this product are misleading or will deceive the ultimate purchaser as to the origin of the product. Therefore, "Product of Canada" need not appear in close proximity to these markings. The Asia Plum Green Tea, The Sports Can Iced Tea with Lemon Flavor and the Total Sport must be marked "Product of Canada" in close proximity to the U.S. address on the side or back label. We do not believe that the marking "Asia Plum" on the Green Tea product is misleading or will deceive the ultimate purchaser as to the country of origin. Therefore, "Product of Canada" does not have to appear in close proximity to this marking. The Original Iced Tea with Lemon Flavor is marked in close proximity to the U.S. address. However, we believe that the "USA" marking on the neck of the bottle coupled with the depiction of the American flag and the Statue of Liberty will mislead or deceive the ultimate purchaser as to the origin of the product. This item should also be marked "Product of Canada" on the front of the bottle.

For the purposes of 19 CFR 134.47, if a trademark registration or an application for a trademark registration has been filed with the U.S. Patent and Trademark Office for the name "Arizona", the country of origin need only appear in a conspicuous location preceded by the words "Product of" of "Made In". The country of origin marking which is in close proximity to the U.S. address on the back or side labels would satisfy this requirement. However, if a trademark registration, or an application for a trademark registration has not been filed for the "Arizona" name, then the requirements of 19 CFR 134.46 are in effect, and the products would also have to be marked "Product of Canada" or "Made in Canada" on the front of the bottles.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist John Maria at 212-466-5730.

Sincerely,

Robert B. Swierupski
Director,

Previous Ruling Next Ruling