NY J89154 - THE COUNTRY OF ORIGIN MARKING OF FOOD BARS; ARTICLE 509 - United States International Trade Commision Rulings

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NY J89154

September 25, 2003

MAR-2 RR:NC:2:228 J89154

CATEGORY: MARKING

Mr. Eric Kimmel
Noble Foods, Inc.
20 Henry IV
Montreal, Quebec H2S 1V9 Canada

RE: THE COUNTRY OF ORIGIN MARKING OF FOOD BARS; ARTICLE 509

Dear Mr. Kimmel:

This is in response to your letters dated September 12, 2003 and September 18, 2003 requesting a ruling the country of origin marking for imported food bars. A sample was submitted with your letters for review.

The product is identified as All Goode Organics brand Organic Real Food Bar, in six different varieties: Chocolate Peanut Pleasure, Peanut Butter Chocolate Chip, Chocolate Delight, Cashew Almond Passion, Honey Nut Harvest, and Nutty Chocolate Apricot. All are in the form of rectangular-shaped products, individually wrapped in metallized plastic film. The front side of the wrapper indicates the product name, variety, and weight, and bears the “USDA Organic” logo. The rear portion of the wrapper contains information in two sections. The “Nutrition Facts” information panel, a list of the ingredients, and the name and U.S. address of the distributor are on one section. The second section contains statements attesting to the product’s organic authenticity, the name of the organic certifying authority, some of the bar’s nutritional properties, a consumer information telephone number, the UPC code, and, once again, the name and location of the U.S. distributor. Along the top border of this section, the production code number and “best by” expiration date is stamped in large block letters and dark-colored ink. The manner in which the bars are wrapped and sealed is such that the second section is folded over the first, obscuring the ingredients list and the first reference to the U.S. distributor.

The packaging film does not indicate the country of origin of the bars. You propose exhausting the existing stock of film, adding “Made in Canada,” in the same size type and same color ink, alongside the “best by” date.

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 134.45(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.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

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.

Under the circumstances described, the proposed marking of the bar wrappers is conspicuous, legible, and permanent, and satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. It is an acceptable country of origin marking for the imported food bars.

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 646-733-3029.

Sincerely,

Robert B. Swierupski
Director,

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