NY M85250 - The country of origin marking “Made in USA or Canada, see bottom of bottle for country or origin” and “Made in USA or Canada, see crimped edge for country of origin” of hair care products; Article 509 - United States International Trade Commision Rulings

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NY M85250

July 31, 2006

MAR-2 RR:NC:2:240 M85250

CATEGORY: MARKING

Mr. James L. Sawyer
Gardner Carton & Douglas
191 N. Wacker Drive, Suite 3700
Chicago, Illinois 60606-1698

RE: The country of origin marking “Made in USA or Canada, see bottom of bottle for country or origin” and “Made in USA or Canada, see crimped edge for country of origin” of hair care products; Article 509

Dear Mr. Sawyer:

This is in response to your letter dated July 18, 2006, on behalf your client Alberto-Culver Company, requesting a ruling on whether the proposed markings “Made in USA or Canada, see bottom of bottle for country or origin” and “Made in USA or Canada, see crimped edge for country of origin” are acceptable country of origin markings for imported hair care products. A representative picture of the proposed markings was submitted with your letter for review.

You state that your client Alberto-Culver is the manufacturer for various hair care products such as shampoos, conditioner, lotions, and hair creams. The hair care products are sold at retail in bottles or tubes. Alberto-Culver has manufacturing and filling facilities in both the United States and Canada. The final mixing, bottling, and packaging operations may be completed in various locations in the U.S. or Canada.

Alberto-Culver is in the process of shifting production and dual-sourcing several of the hair care products. You state that given the increasing demands of just-in-time delivery schedules and rapidly adjusting production timelines, Alberto-Culver is unlikely to be able to predict with certainly which manufacturing facility will produce a particular hair care product in sufficient lead time to enable the ordering, production, and delivery of custom labels identifying the correct country or origin. You state that it would be economically prohibitive to maintain or order dual sets of labels indicating either “Made in USA” or “Made in Canada”. Alberto-Culver would like to mark the labels on the bottle to indicate “Made in USA or Canada, see bottom of bottle for country of origin”. Alberto-Culver would ink-jet mark the actual country of origin marking on the bottom of the bottles at the time of filling. The bottom of the bottle will indicate either “Made in USA” or “Made in Canada”. The same concept would apply to the tubes, whereby the marking on the tube would indicate “Made in USA or Canada, see crimped edge for country or origin”. At the time of filling of the tubes, the appropriate country of origin marking, either “Made in USA” or “Made in Canada” will be embossed on the edges of the tubes.

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.

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. 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.

It is generally Custom’s policy not to accept disjunctive country of origin marking such as “Made in USA or Canada” because the marking does not indicate the actual country of origin as required by 19 U.S.C. 1304. Section 134.46 contains rigorous marking requirements designed to alleviate the possibility of misleading an ultimate purchaser with regards to the country of origin of an imported article. Section 134.46 states: 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 of 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.

Aerosol cans marked “Made in Canada or USA – See bottom of can for actual country of origin” were the subject of Headquarters ruling 561519 dated March 30, 2000. It was Custom’s opinion that the special marking requirements of 19 CFR 134.46 were satisfied with the specific instructions on the can directing the ultimate purchaser to inspect the bottom for the actual country of origin.

The proposed markings of imported hair care products with “Made in USA or Canada, see bottom of bottle for country or origin” and “Made in USA or Canada, see crimped edge for country of origin”, satisfy the special marking requirements of 19 CFR 134.46, wherein a specific instruction directs the ultimate consumer to inspect either the bottom of the bottle or the crimped edge of a tube for the actual country of origin. You have stated and provided pictures of prototype products, which indicate that the actual country of origin, either “Made in USA” or “Made in Canada” will be ink-jet marked on the bottom of the bottle or embossed on the edge of the tube.

For your information, however, we note that the Federal Trade Commission has jurisdiction concerning the use of the phrase “Made in the USA” and similar claims of U.S. origin; consequently, any inquiries regarding its use should be directed to that agency at the following address: Federal Trade Commission Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).

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 Stephanie Joseph at 646-733-3268.

Sincerely,

Robert B. Swierupski
Director,

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