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HQ 561990

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March 11, 2002

MAR-2-05 RR:IA 561990 RFC

CATEGORY: MARKING

Mr. Leonard L. Rosenberg
Sandler, Travis & Rosenberg
5200 Blue Lagoon Drive
Miami, FL 33126

RE: Country of Origin Marking Requirements for Certain Cosmetic Containers

Dear Mr. Rosenberg:

This is in response to a December 1, 2000, letter (supplemented by letters dated May 4, 2001, and November 30, 2001), requesting a ruling on behalf of Mary Kay, Inc., regarding the country of origin marking requirements for certain cosmetic containers.

FACTS:

In your letter, you state that the goods under consideration are empty containers that are imported into the United States from Mexico. Each container consists of an 11 mm, .20 fluid ounce ABS bottle with a LDPE wiper with an 11 mm aluminum matter silver overshell on a celcon stem with a flocked-tip applicator. You indicate that the containers are not designed for reuse and are to be discarded after the contents are depleted.

At the time of importation, the empty containers will not be individually marked with the country of origin in which they are made. The outer packing in which the containers are shipped in bulk form will identify the country of origin as Mexico.

After importation, you indicate that the containers will be filled by Mary Kay, Inc. with lip gloss that is manufactured in and imported from Italy. The product is then packaged in standard Mary Kay packaging (i.e., paperboard boxes) specific to the particular product for retail sale.

You further indicate that the containers are articles that originate in Mexico as determined under the NAFTA Marking Rules. Also, you ask whether each container as imported into the United States from Mexico may be marked with the designation “Made in Italy” or “Product of Italy” or “Lip gloss—Italy” in order to reflect the country of origin of the lip gloss that will be put into each container after the container has been imported into the United States.

ISSUES:

Whether empty disposable containers that are goods of a NAFTA country that will be filled by the importer with a cosmetic product after importation must be marked with their country of origin.

Whether empty, Mexican-origin containers may be imported marked “Made in Italy” or “Product of Italy,” in order to reflect the origin of the cosmetic product that will be put into the containers after their importation.

LAW AND ANALYSIS:

Country of Origin Marking For Purposes of Section 304 of Tariff Act of 1930

The U.S. law relating to country of origin marking for imported merchandise (“the marking statute”) is found in section 304 of the Tariff Act of 1930, as amended (19 U.S.C. § 1304). This law provides that, unless excepted, every article of foreign origin (or its container) 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 United States the English name of the country of origin of the article. See 19 U.S.C. § 1304(a). Products made in the United States do not have to be marked with their country of origin under this statute.

The purpose of the marking statute is to allow the ultimate purchaser of the goods to know, by simple inspection, specifically where they were made in case such knowledge might influence his or her decision to purchase the goods (i.e., to permit the ultimate purchaser in the United States to choose between domestic and foreign-made products, or between the products of different foreign countries). See generally, United States v. Friedlaender & Co. Inc., 27 C.C.P.A. 297, at 302 (1940).

The “ultimate purchaser” is defined in Part 134 of the Customs Regulations as:

[G]enerally the last person in the United States who will receive the article in the form in which it was imported; however, for a good of a NAFTA country, the ``ultimate purchaser'' is the last person in the United States who purchases the good in the form in which it was imported.

19 CFR § 134.1(d).

A good of a NAFTA country is an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. See 19 CFR § 134.1(g).

Subpart C of the Customs Regulations (19 CFR §§ 134.21-26) contains regulations relating to the marking of containers or holders. The regulations provide, in pertinent part, as follows for containers which are goods of a NAFTA country:

Sec. 134.22 General rules for marking of containers

(a) Contents excepted from marking. When an article is excepted from the marking requirements by subpart D of this part, the outermost container or holder in which the article ordinarily reaches the ultimate purchaser shall be marked to indicate the country of origin of the article whether or not the article is marked to indicate its country of origin.

(b) Containers or holders treated as imported articles. Containers or holders for imported merchandise which are subject to treatment as imported articles under the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202), shall be marked to indicate clearly the country of their own origin in addition to any marking which may be required to show the country of origin of their contents; however, no marking is required for any good of a NAFTA country which is a usual container.
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(d) Usual containers--(1) ``Usual container'' defined. For purposes of this subpart, a usual container means the container in which a good will ordinarily reach its ultimate purchaser. Containers which are not included in the price of the goods with which they are sold, or which impart the essential character to the whole, or which have significant uses, or lasting value independent of the contents, will generally not be regarded as usual containers. However, the fact that a container is sturdy and capable of repeated use with its contents does not preclude it from being considered a usual container so long as it is the type of container in which its contents are ordinarily sold. A usual container may be any type of container, including one which is specially shaped or fitted to contain a specific good or set of goods such as a camera case or an eyeglass case, or packing, storage and transportation materials. (2) A good of a NAFTA country which is a usual container. A good of a NAFTA country which is a usual container, whether or not disposable and whether or not imported empty or filled, is not required to be marked with its own country of origin. If imported empty, the importer must be able to provide satisfactory evidence to Customs at the time of importation that it will be used only as a usual container (that it is to be filled with goods after importation and that such container is of a type in which these goods ordinarily reach the ultimate purchaser).

(e) Exceptions. Containers or holders of imported articles are not required to be marked if:

(1) Excepted articles. They are containers or holders of articles within the exceptions set forth in paragraph (f), (g), or (h) in Sec. 134.32 or they are containers of a good of a NAFTA country within the exceptions set forth in paragraph (e), (f), (g), (h), (i), (p) or (q) of Sec. 134.32. (2) Excepted containers or holders. The container or holder itself is within an exception set forth in subpart D of this part. (3) To be filled by the importer. The container or holder is within the exception set forth in Sec. 134.24(c).

19 CFR § 134.22

Sec. 134.24 Containers or holders not designed for or capable of reuse.

(a) Containers ordinarily discarded after use. Disposable containers or holders subject to the provisions of this section are the usual ordinary types of containers or holders, including cans, bottles, paper or polyethylene bags, paperboard boxes, and similar containers or holders which are ordinarily discarded after the contents have been consumed.
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(c) Imported to be filled--(1) If unmarked. When disposable containers or holders or usual containers which are goods of a NAFTA country are imported by persons or firms who fill or package them with various products which they sell, these persons or firms are the ``ultimate purchasers'' of these containers or holders or usual containers which are goods of a NAFTA country and they may be excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3)(D). The outside wrappings or packages containing the containers shall be clearly marked to indicate the country of origin.

19 CFR § 134.24

As indicated above, there exist certain exceptions to the marking requirements for containers that are goods of a NAFTA country. In the instant case, pursuant to section 134.24 (c) above, if the disposable containers that are goods of a NAFTA country are imported unmarked and empty by Mary Kay Inc. who will fill them with lip gloss, Mary Kay Inc. is the ultimate purchaser of the containers. These containers may be excepted from individual marking. See 19 CFR 134.22(e)(3). The outside packages in which the containers are imported, however, must be clearly marked to indicate that the country of origin of the containers is Mexico (as determined by the NAFTA Marking Rules).

Pre-Marking Containers with Other than the Actual Country of Origin

In your request, you ask whether that the empty containers may be marked with the designations “Made in Italy“ or “Product of Italy.” As the importer in this case is the ultimate purchaser of the containers and the containers will in fact be filled with lip gloss from Italy, the containers may be pre-marked with the designations “Made in Italy” or “Product of Italy.” See generally, HQ 561829 (January 3, 2002).

HOLDING:

Country of Origin Marking For Purposes of Section 304 of Tariff Act of 1930

The above-mentioned containers are excepted from individual marking but the outside packages in which the containers are imported must be clearly marked to indicate that the country of origin of the containers is Mexico (as determined by the NAFTA Marking Rules).

Pre-Marking Containers with Other Than the Actual Country of Origin

The above-mentioned containers may be pre-marked with the designations “Made in Italy“ or “Product of Italy.”

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 Service officer handling the transaction.

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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