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HQ 562107

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July 6, 2001

MAR-05: RR:CR:SM 561207

CATEGORY: MARKING

Port Director
9901 Pacific Highway
Blaine, WA 98230

RE: Country of origin marking requirements of ornamental plants

Dear Sir:

This is in reference to a letter dated April 16, 2001, from Valleybrook Gardens Ltd., (“Valleybrook”), concerning the country of origin marking requirements of ornamental plants imported from Canada.

FACTS:

Valleybrook is a nursery that produces ornamental plants for wholesale, primarily to garden centers and other retail establishments as well as landscape contractors. The plants are sold in blue plastic pots, samples of which were submitted with Valleybrook’s request. Valleybrook states that the pots are both a container for the product, and an essential component of the packaging. Currently, the pots are marked with a plastic tag in every pot with the words “Product of Canada” on the back of the tag. The front of the tag identifies the plant by word and by pictorial.

Valleybrook recently established a new nursery in the U.S. to grow plants in the U.S. for the U.S. market and for export to Canada. In view of the cost of producing two sets of identification tags for the plants (one printed “Product of Canada” and one printed “product of USA”), which exceed 1,000 varieties, Valleybrook changed the method of marking to include the words “Product of Canada” or “Product of USA” molded-in on one side of the pot, and ceased printing the country of origin on the pictorial tags.

Valleybrook states that upon entry into the U.S. of plants grown in Canada, Customs officials at the port of Blaine rejected the marking on the plant containers as, in their opinion, the marking was not conspicuous. Valleybrook also states that Customs officials at the border crossing at Lewiston Bridge, New York, rejected the wording “Product of Canada” and advised that the wording “Grown in Canada” was required.

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ISSUE:

Whether the country of origin marking requirements of 19 U.S.C. 1304 are satisfied by the molded-in marking on the side of the pot with the words “Made in Canada.”

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C 1304), requires that every article of foreign origin (or its container) imported into the United States shall be marked in a conspicuous location as legibly, indelibly and permanently as the nature of the article (or 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 origin of the article. Certain classes of articles which are specified in section 134.33, Customs Regulations (19 CFR 134.33), known as the J-list, are excepted from individual country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(J). Included on the "J- list" are "Plants, shrubs and other nursery stock." However, pursuant to 19 CFR 134.33, the outermost container in which a "J-list" article reaches the ultimate purchaser is required to be marked to indicate the country of origin of its contents.

Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), states in reference to country of origin marking, "The ultimate purchaser must be able to find the marking easily and read it without strain."

In Headquarters Ruling Letter (HRL) 733940 dated October 24, 1991, we stated that in regard to the conspicuousness requirement of 19 U.S.C. 1304, the factors to be considered include the size of the marking, the location of the marking, whether the marking stands out, and the legibility of the marking. The size of the marking should be large enough so that the ultimate purchaser can easily see the marking without strain. The location of the marking should be in a place where the ultimate purchaser could expect to find the marking or where he/she could easily notice it from a casual inspection. Whether the marking stands out is dependent on where it appears in relationship to other print on the article and whether it is in contrasting colors to the background.

No single factor is considered conclusive in determining whether a marking meets the conspicuousness requirement of 19 CFR §134.41 and 19 U.S.C. 1304. Instead, it is the combination of factors which will determine whether the marking is acceptable. In this regard, Customs has often held that to be conspicuous a marking need not be in a color which contrasts with its background as other factors, such as size, may cause the marking to be conspicuous within the meaning of 19 U.S.C. 1304. See, e.g., HRL 733146 dated January 4, 1993.

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In Headquarters Ruling Letter (HRL) 731587 dated November 16, 1989, Customs considered a request for a ruling from Valleybrook in which the pot was marked “POT AND PLANT PRODUCT OF CANADA” on the bottom by means of a molded-in process. In that case, we stated that “the lettering of the country of origin is the same color as its background and although such "blind lettering" is usually unacceptable, in this instance the letters are large enough and sufficiently raised to make them acceptable in regard to legibility.” However, in HRL 731587, we held that as the molded-in marking was located on the bottom of the pot, it did not comply with the requirements of 19 U.S.C. 1304, as the marking was not conspicuous. We also suggested alternative forms of marking, which included moving the molded-in marking to one of the sides of the pot.

Therefore, as applied to this case, the question to be addressed is whether the molded-in marking located on one side of the pot is legible and conspicuous, although it is in the same color as its background.

There are two sample pots submitted, the larger one measuring approximately 6” in length. In the center of each of the four sides of the larger pot is a circle contrasting to its background by texture (but not color). Within this circle is a raised design depicting a plant, and the raised words “Heritage perennials” in large letters immediately beneath the design. On one of the four sides of the pot in somewhat smaller letters beneath the word “perennials” and within the circle are the raised words “PRODUCT OF CANADA.” The size of this lettering is approximately 1/8” in height. The smaller pot is approximately 4” in length. In the center of each of the four sides there is a rectangle contrasting to its background by texture (but not color). On three of the sides within this rectangle are the words (beneath the plant design) “Heritage perennials.” On one side, the centered rectangle contains only the words “PRODUCT OF CANADA” in lettering approximately 1/8” in height.

Although the marking is not in a contrasting color to its background, we nevertheless find that the country of origin marking on both pots is acceptable. The marking is located in the center of one side of the pot in a circle (or rectangle, for the smaller pot) which contrasts from its background by texture. The marking can be observed through a casual inspection of the article. It is also large enough so that the marking can be read without strain or difficulty. Accordingly, we find the marking to be both legible and conspicuous.

Section 134.22, Customs Regulations (19 CFR 134.22), provides that when an article is excepted from marking, the outermost container or holder in which the article ordinarily reaches the ultimate purchaser shall be marked to indicate the country of

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origin of the article. In this case, the plants are excepted from the marking requirements under 19 CFR 134.33. Therefore, marking the pot in which the plants are contained and which reaches the ultimate purchaser is appropriate. In our opinion, the marking “Product of Canada” clearly conveys to the ultimate purchaser in the U.S. that Canada is the country of origin of the plant, in accordance with the requirements of 19 U.S.C. 1304.

HOLDING:

Under the circumstances of this case, the marking “Product of Canada “ molded-in on one side of plastic pots containing ornamental plants is legible, conspicuous and permanent. Therefore, as the words “Product of Canada” also conveys to the ultimate purchaser in the U.S. that Canada is the country of origin of the plant, the marking complies with the requirements of 19 CFR 134.41(b) and 19 U.S.C. 1304. Please advise Valleybrook Gardens Ltd., 1831 Peardonville Rd., R.R. #1, Abbotsford, B.C., Canada V4X 2M3, of this decision and include a copy with your notice.

Sincerely,

John Durant, Director
Commercial Rulings Division


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