HQ 561997 - Country of Origin Marking for fragrances and cosmetic products from the United Arab Emirates; 19 CFR part 134; 19 CFR § 134.45(b); 19 CFR § 134.46. - United States International Trade Commision Rulings

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HQ 561997

March 4, 2001
mar-05 RR:CR:sm 561997 tjm

Category: MARKING

Mr. Rolando Moya
American Star Miami, Inc.
1290 Weston Road
Suite 214

Weston, FL 33326-1909

RE: Country of Origin Marking for fragrances and cosmetic products from the United Arab Emirates; 19 CFR part 134; 19 CFR § 134.45(b); 19 CFR § 134.46.

Dear Mr. Moya:

This is in reply to your letter dated December 21, 2000, requesting a ruling on proper country of origin marking for fragrances and cosmetic products imported from the United Arab Emirates. Please find our response below.

FACTS:

American Star Miami, Inc., (the “Company’) imports and distributes fragrances and cosmetic products that are manufactured in the United Arab Emirates.

You stated that the Company leases warehouses in Florida to store the imported fragrances and cosmetic products prior to sale to your customers. The Company imports these products duty paid because they are sold in less than container load shipments to your customers. You stated that your customers reconsolidate the products in Florida for export to their respective countries, mostly in Latin America. By telephone on January 8, 2001, you stated that the Company prefers to import the products into the United States duty paid for logistical purposes and because a small amount of your imported products is consumed in the U.S. market.

The sample you provided of “Ebano” eau de toilette of Doral Perfumes (Sample 1) is labeled on the back of the box with “Dist. by: American Star Miami, Inc., Weston, FL 33326, U.S.A.” On the bottom of the box along with the UPC code is written “Made in U.A.E.”

The sample you provided of “Force Vitale” eau de toilette of Irene Andre parfums (Sample 2) also is labeled on the back of the box with “Dist. by: American Star Miami, Inc., Weston, FL 33326, U.S.A.” On the bottom of the box along with the UPC code is printed “Made in U.A.E.”

The sample you provided of “Director” eau de toilette spray of Regency parfum (Sample 3) is labeled on the back of the box with a sticker that is inside the shrink wrap that states “Dist. By: American Star Miami, Inc., Weston, FL 33326 USA. Made in UAE.” Below this sticker is printed “Fragrance from France.”

The sample you provided of “Mon Mariage” eau de parfum (Sample 4) also is labeled on the back of the box with a sticker that is inside the shrink wrap that states “Dist. By: American Star Miami, Inc., Weston, FL 33326 USA. Made in UAE.” Below this sticker states “Perfume oils made in France.”

The sample you provided of “Vie en Rose” lipstick (Sample 5) has a label on the side which states “Dist. By: American Star Miami, Inc., Weston, FL 33326 USA.” On the bottom of the lipstick case is a dark label that is printed in small letters “Made in U.A.E.”

The sample you provided of “Vie en Rose” nail enamel (Sample 6) has on the side of the bottle a label that includes the statement “Dist. By: American Star Miami, Inc., Weston, FL 33326 USA. Made in UAE.”

ISSUE:

What are the country of origin marking requirements applicable to the imported perfumes and cosmetic products described above?

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 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 U.S. the English name of the country of origin of the article. 19 CFR part 134 implements the country of origin marking requirements of 19 U.S.C. § 1304. Section 134.1 (d), Customs Regulations (19 CFR § 134.1(d)), provides that the “ultimate purchaser” is generally the last person in the United States who will receive the article in the form in which it was imported.

If products are entered into the United States to be exported, an exception to the marking requirement may be applicable. Section 134.32(j), Customs Regulations (19 CFR § 134.32(j)) excepts from marking requirements ”[a]rticles entered or withdrawn for immediate exportation or for transportation and exportation.” Furthermore, in East Asiatic Co. v. United States, 27 C.C.P.A. 364, C.A.D. 112 (1940), the court held that in respect to marking, when Congress enacted section 304(b) of the Tariff Act of 1930, it had in mind merchandise which was to enter into our commerce. In the instant case, the facts are insufficient to determine whether the goods are entered and withdrawn for immediate exportation.

We note that you did not submit any information regarding the manufacturing processes to produce the products in the United Arab Emirates. For purposes of this ruling, we are assuming that the products are produced in the United Arab Emirates in a manner that satisfies Customs country of origin requirements.

As to the question whether the use of the abbreviation U.A.E. is acceptable in the country of origin marking, section 134.45(b), Customs Regulations (19 CFR § 134.45(b)), provides that abbreviations of country names "which unmistakably indicate the name of a country. . .are acceptable. Variant spellings which clearly indicate the English name of the country of origin such as “Brasil’ for ‘Brazil’ and ‘Italie’ for ‘Italy,’ are acceptable."

Congressional intent in requiring a country of origin marking was “that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of origin of which the goods is the product. The evident purpose is to mark the goods so that at the time of the 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. Friedlander & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940).

The purpose of the marking law was “to require a marking such as would be understood by purchasers of foreign-made goods as giving definite and reliable information as to country of origin.” American Burtonizing Co. v. United States, 13 Ct. Cust. 652, 654 (Ct. Cust. App. 1926). “The object sought to be obtained by the legislature could best be obtained by an indication which was clear, plain, and unambiguous and which did more than merely hint at the country of origin.” Id.

The court opined that it did not think “Congress intended that American purchasers, consumers, or users of foreign-made goods should be required to speculate, investigate, or interpret in order that they might ascertain the country of origin.” Id. In that case, the court held that the French-made goods which were marked “Aisne” in combination with other French words, would confuse the purchaser rather than indicate that the goods were made in France, and, thus, was not an acceptable country of origin marking.

In Headquarters Ruling Letter (“HRL”) 734487 (May 7, 1992), we noted that Customs has been very stringent in approving the use of abbreviations to ensure that an abbreviation unmistakably indicates the country of origin to an ultimate purchaser of a product. The fact that an abbreviation is the official abbreviation for a country is not enough; it must unmistakably identify the country of origin to the ultimate purchaser.

Customs has denied a number of requests for abbreviations where it determined that the abbreviation was not sufficiently known in the U.S. for consumers to recognize the country of origin: HRL 560978 (July 24, 1998) (denial of “G,” “D,” and “Ger” for Germany); HRL 735526 (April 28, 1994) (denial of “F.Y.R.O.M.” for The Former Yugoslav Republic of Macedonia, though “FYR Macedonia” and “F.Y.R.O.M. (Macedonia)” are acceptable); HRL 735083 (August 5, 1993) (denial of “NL” for the Netherlands); HRL 734856 (December 23, 1992) (denial of “YAP” and “YAP, F.S.M.” for Yap, Federated States of Micronesia); HRL 7344487 (May 7, 1992) (denial of “CSFR” as an abbreviation for Czech Slovak Federal Republic); HRL 731799 (May 15, 1989) (denial of “V”, “VZLA,” or “VENZLA” for Venezuela).

Similarly, Customs in HRL 561083 (November 5, 1998), ruled that the use of the abbreviation for the United Arab Emirates as U.A.E. does not unmistakably identify the country to most U.S. consumers. In the instant case information was insufficient to determine the country of origin. However, assuming for purposes of this ruling that the goods are products of the United Arab Emirates, the abbreviation “U.A.E.” is not acceptable.

The reference to “Weston, FL 33326, U.S.A.” and the use of the statements “Fragrance from France” and “Perfume oils made in France” on samples 3 and 4 respectively require discussion. As noted above, the courts have interpreted the legislative intent of the marking laws as requiring markings that are understood by the purchaser, specifically that they are clear, plain, and unambiguous.

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 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 or 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.

Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears. See HRL 708994 (April 24, 1978), HRL 083832 (May 31, 1989), HRL 73361 (July 26, 1990). In other words, when viewing the non-origin reference, the country of origin must be apparent in one observation without having to manipulate the article.

In the instant case, we find that the words “Dist. By: American Star Miami, Inc., Weston FL 33326, USA” on all the sample products submitted, and the statement “Fragrance from France” on sample product 3, may mislead or confuse the ultimate purchase as to the actual country of origin of the products. Therefore, pursuant to 19 CFR 134.46, the country of origin (United Arab Emirates) must appear in close proximity (same side or label) to each of the above non-origin references and in at least a comparable size lettering, preceded by “Made in,” “Product of” or words of similar meaning.

It is our opinion that the statement “Perfume Oils Made in France” on sample 4 is unacceptable because it may be interpreted as a second and conflicting country of origin marking. However a statement such as “Perfume Oils from France” would be acceptable, provided the special marking requirements of 19 CFR134.46 are satisfied in regard to this non-origin reference.

HOLDING:

For purposes of this ruling, we are assuming that the products qualify as originating in the United Arab Emirates. With that assumption, the use of the letters “U.A.E.” for the United Arab Emirates is not acceptable for country of origin marking purposes.

Your products that include the wording, “Dist. by American Star Miami, Weston, FL 33325, U.S.A.” and “Fragrance from France” should have the country of origin (United Arab Emirates) marking in proximity (same side or label) to each of these non-origin references and in at least a comparable size lettering, preceded by “Made In,” “Product of” or words of similar meaning.

For sample 4, the statement “Perfume Oils Made in France” is unacceptable. However, a statement such as “Perfume Oils from France” would be acceptable, provided the special marking requirements of 19 CFR 134.46 are satisfied in regard to this non-origin reference.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents are filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant

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