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NY E87091




October 6, 1999

MAR-2 RR:NC:2:228 E87091

CATEGORY: MARKING

Mr. James F. Morgan
PBB Global Logistics
883-D Airport Park Road
Glen Burnie, MD 21061

RE: COUNTRY OF ORIGIN MARKING OF AN IMPORTED DIETARY SUPPLEMENT; ARTICLE 509

Dear Mr. Morgan:

This is in response to your letter dated September 3, 1999, on behalf of Kaire Nutraceuticals, Inc., Longmont, Colorado (Kaire), requesting a ruling on the country of origin marking for a dietary supplement. The product will be imported in unmarked retail containers, to which labels will be applied after importation. Photocopies of the product labels were submitted with your letter for review.

“SlimKaire II” is a dietary supplement in tablet form, said to contain dicalcium phosphate, flax meal, calcium pyruvate, citrus aurantium, garcina cambogia, steric acid, kola nut, white willow bark, chickweed, chromium, ginger root, barley juice concentrate, silicone dioxide, Siberian ginseng, bladderwack kelp, magnesium sterate, burdock root, and pinus radiata bark extract. It will be put up in unmarked plastic retail bottles containing 180 tablets per bottle, or in unmarked plastic resealable bags containing 90 tablets, for use as samples. The bottles and/or bags will be imported in shipping cartons labeled “Made in Canada.” Kaire intends to sell the supplement to customers in the United States, The United Kingdom, New Zealand or Canada, but at the time of importation, the product will not have been sold, and their ultimate destination(s) unknown. As sales are made, the bottles or bags will be labeled. The labels will, in all cases, indicate the supplement is “made in Canada.”

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.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d) of the regulations, provides that the ultimate purchaser of a good of a NAFTA country is the last person in the United States who purchases the good in the form in which it was imported. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser.

An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article. However, since the dietary supplement is not imported in its marked retail container, whether the subject article is excepted from individual marking under 19 CFR 134.32(d) is for the port director to decide. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized in the discretion of the port director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from Customs custody under the following conditions: (1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.; (2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry.

In this case, assuming that the port director is satisfied that the imported “SlimKaire II” dietary supplement will be repacked in the manner described above, and that the other conditions set forth in 19 CFR 134.34 are met, the port director may authorize an exception under 19 CFR 134.32(d), in which case marking of the imported dietary supplement will not be required.

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 Stanley Hopard at 212-637-7065.

Sincerely,

Robert B. Swierupski
Director,

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