NY I88758 - COUNTRY OF ORIGIN MARKING OF IMPORTED JUICES; ARTICLE 509 - United States International Trade Commision Rulings

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NY I88758

December 11, 2002

MAR-2 RR:NC:SP:232 I88758

CATEGORY: MARKING

Ms. Sarah M. Nappi
Miller & Chevalier
655 Fifteenth Street, N.W., Suite 900
Washington, D.C. 20005-5701

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED JUICES; ARTICLE 509

Dear Ms. Nappi:

This is in response to your letter dated November 18, 2002, on behalf of A. Lassonde Inc., requesting a ruling on the country of origin marking requirements for an imported article which is processed in a NAFTA country prior to being imported into the U.S. Marked samples were submitted with your letter for review. The samples were examined and are being returned.

The subject merchandise consists of various juice products which will be imported in four types of packaging: plastic bottles containing 64 fluid ounces, prisma packages containing 33.8 fluid ounces, metal cans containing 46 fluid ounces and tetra packages (juice boxes) containing 6.76 fluid ounces, in sets of eight or ten boxes sealed together with plastic overwrap. You state that the juices are produced in Canada using juice concentrate from various source countries. It is noted that the source countries of the juice concentrate may vary over time and with different lots or shipments. The processing in Canada includes the addition of water to the concentrates and heat pasteurization. All of the packaging and labeling is done in Canada.

The submitted sample of the clear plastic four-sided bottle for “Rougemont McINTOSH” contains a paper label wrapped around the center of the bottle. The label on one side of the bottle is marked “PREPARED IN CANADA”, below this is “A. LASSONDE INC., ROUGEMONT, QUEBEC, CANADA JOL 1MO, MONTREAL, TORONTO, HALIFAX.” You indicate that the words “PREPARED IN CANADA” will be removed from future labels. It is noted that the product may contain the name and address of Lassonde’s U.S. Distributor, instead of Lassonde’s name and Canadian address. The front of the bottle, above the paper label, is marked by inkjet in black ink (dark blue ink may also be used) with the words “APPLE CONCENTRATE FROM HUNGARY & CANADA.”

The submitted sample of the prisma package for “ALLEN’S” is approximately 12 inches tall and 4 inches across. It is composed of a coated cardboard multifaceted box with a plastic flip-open spout on the top. One side of the package, near the bottom, is marked “PREPARED IN CANADA”, below this is “PREPARED BY A. LASSONDE INC.”, followed by “AUTHORIZED USER”, and then “A. LASSONDE INC., ROUGEMONT, QUEBEC, CANADA JOL 1MO, MONTREAL, TORONTO, HALIFAX.” You indicate that the words “PREPARED IN CANADA” will be removed from future labels. The package is marked by inkjet in black ink, on a light blue background, with the words “JUICE CONCENTRATE FROM BRAZIL” on the front panel directly beneath the brand name of the juice.

The submitted sample of the metal can for “Rougemont” contains a paper label wrapped around it, which covers all but the top and bottom of the can. The label on one side of the can is marked “Prepared in Canada by”, below this is “A. LASSONDE INC., ROUGEMONT, QUEBEC, CANADA JOL 1MO, MONTREAL, TORONTO, HALIFAX.” You indicate that the words “Prepared in Canada” will be removed from future labels. It is noted that the product may contain the name and address of Lassonde’s U.S. Distributor, instead of Lassonde’s name and Canadian address. The top of the can is marked by inkjet in black ink (dark blue ink may also be used) with the words APPLE CONCENTRATE FROM HUNGARY.”

The submitted sample of the tetra packages for “ALLEN’S” consists of small rectangular cardboard boxes approximately 5 inches tall. Each box has a small plastic-wrapped drinking straw glued to the side of it, and a small foil-sealed hole in the top of the box to accommodate the straw. Eight, or in some cases ten boxes are stuck together with adhesive and surrounded by a plastic overwrap label. The side panels of the boxes at each end of the package, and the back of the package on the plastic overwrap label are marked “PREPARED BY A. LASSONDE INC.”, followed by “AUTHORIZED USER”, and then “A. LASSONDE INC., ROUGEMONT, QUEBEC, CANADA JOL 1MO, MONTREAL, TORONTO, HALIFAX.” The side panels of the boxes also have the marking PREPARED IN CANADA.” You indicate that the words “PREPARED IN CANADA” will be removed from future labels. The top surface of one box is visible though the plastic wrapping. The box is marked by inkjet in black ink (dark blue ink may also be used) on a white background with the words “APPLE CONCENTRATE FROM SOUTH AFRICA.” You indicate that all of the boxes in the package will be marked in the same fashion. .
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 to 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 134.1(b) of the regulations, defines "country of origin" as
the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. (Emphasis added).

Section 134.1(j) of the regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. 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 134.45(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.

You state that the imported juices are processed in a NAFTA country "Canada" prior to being imported into the U.S. Since "Canada" is defined under 19 CFR 134.1(g), as a NAFTA country, we must first apply the NAFTA Marking Rules in order to determine whether the imported juices are "goods of a NAFTA country", and thus subject to the NAFTA marking requirements.

Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.

Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the imported juice products in the prisma package, metal can and the tetra packages are goods of the country, which produced the concentrate, for marking purposes. The juices do not undergo the applicable change in tariff classification specified in Section 102.20 (d) by the processing and packaging in Canada.

Your inquiry does not provide enough information for us to determine the country of origin of the juice in the plastic bottle. Your request for a marking ruling should include whether the apple concentrate from Hungary constitutes in single strength form more than 60 percent by volume of the good.

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.

The proposed marking of the imported plastic bottles and the prisma packages, as described above, satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is an acceptable country of origin marking for the imported juice products.

The proposed marking of the imported metal can and tetra packages, as described above, does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not an acceptable country of origin marking for the imported juice products. The country of origin marking “Hungary” for the metal can, and “South Africa” for the tetra packages, preceded by the words “Product of” or Made in” must appear in close proximity and in comparable size lettering to Lassonde’s Canadian name and address, or Lassonde’s U.S. distributor name and address.

As an alternative, you inquire as to whether the reference on the product’s label to the U.S. or Canadian geographic locality may be supplemented, on the same panel and in at least the same size type, with a statement that the juice “Contains concentrate from (see top of container).” We believe that the requirements of 19 CFR 134.46 would be satisfied with this proposed country of origin marking.

Your inquiry also requests that Lassonde be permitted to use up its existing inventories of packaging materials and implement a required marking change as new packaging is ordered. In connection with this request, a representative listing of estimated inventories and the change costs of the various types of labels has been submitted. The general exceptions to marking requirements under 19 CFR 134.32 are at the discretion of the port director.

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 646-733-3031.

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, U.S. Customs Service, 1300 Pennsylvania Ave. N.W., Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski
Director,

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