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HQ H007883

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April 3, 2007

CLA-2 RR:CTF:TCM H007883 ADK

CATEGORY: COUNTRY OF ORIGIN MARKING

Scott D. Hoffman, Esq.
Trans American, CHB
2775 Broadway
Buffalo, NY 14227

RE: Country of Origin Marking Requirements for certain canned cat food from Canada

Dear Mr. Hoffman:

This is in response to your letter dated January 29, 2007, to United States Customs and Border Protection (CBP) in New York, sent on behalf of Menu Foods, in which you requested a binding ruling pertaining to the country of origin marking requirements for certain canned cat food. Your letter was referred to this office for a response.

FACTS:

The subject imports are 3-ounce cans of cat food, which are individually labeled for retail sale. Encircling the side of each can is a paper label printed with the brand name, the flavor of food and a picture of a cat. A rectangular area of the label, measuring ¾” x 2-7/8”, is printed with an ingredient list, instructions and other product information. The vast majority of this information is printed in a very small, un-bolded font. Included in this information is the following text, however, which is printed in bold: “Distributed by/par Safeway Inc., P.O. Box 99, Pleasanton, CA 94566-0009. See bottom of can for country of origin.” The country of origin is not printed anywhere on the paper label.

The bottom surface of the can is printed, using an indelible inkjet process, with the words “MADE IN CANADA.” The bottom surface is also printed with a “best by” date which is situated immediately above the country of origin marking.

ISSUE:

What are the country of origin marking requirements for the subject merchandise?

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. §1304), provides that unless excepted, every article of foreign origin 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. Congressional intent in enacting 19 U.S.C. §1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlander & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940). The country of origin is considered to be conspicuous if the ultimate purchaser in the United States is able to find the marking easily and read it without strain. See 19 CFR §134.41(b), CBP Regulations, and Headquarters Ruling (HQ) 562832, dated October 23, 2003.

When a foreign import is marked with both a domestic U.S. address and the foreign country of origin, the special marking rules of 19 CFR §134.46, CBP Regulations are triggered. Section 134.46 provides as follows:

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.

(Emphasis added).

These rules are applicable in the present matter because the “Pleasanton, CA” address has the potential to mislead the ultimate purchaser.

As a threshold matter, we note that the proposed country of origin statement -- the phrase “MADE IN CANADA,” which is printed using an indelible inkjet process -- satisfies sections 1304 and 134.41(b). The text will be printed as legibly, indelibly and permanently, as the can will permit. Furthermore, the ultimate purchaser will be able to find the marking easily and will be able to read it without strain.

We next consider the special marking rules applicable in this matter. In order to satisfy the close proximity requirement articulated in §134.46, the country of origin marking generally must appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears. See HQ 562832, HQ 708994, dated April 24, 1978. However, where a domestic U.S. address is immediately followed by specific instructions directing the ultimate purchaser to inspect the article, and where the country of origin statement is preceded by the phrase, “Made in, Product of,” or similar words, §134.46 is potentially satisfied

In New York Ruling (NY) 814592, dated September 25, 1995, a metal can was marked as follows:

The rear panel providesan address for consumer inquiries, the name and head office location of the distributor, and the country of origin, ‘product of New Zealand.’Across the top lid of the can, the phrase ‘product of New Zealand’ is also printed in a conspicuous manner. [The importer asked]whether removing the country of origin marking from the label would be acceptable, if the same is printed on the can lid.

In response, CBP held that the removal of such language from the label would violate §134.46. The ruling makes clear that, if printed without further instructions to the ultimate purchaser, a domestic U.S. address has the potential to mislead the ultimate purchaser.. See HQ 561519, dated March 30, 2000.

In HQ 562832, CBP was asked to consider the use of such instructions on leather and textile gloves. Prior to importation in that case, cardboard collar bands were placed around each pair in order to hold individual gloves together for retail sale. The following language was printed on the collars:

(4) see product label for fabric content and country of origin (6) [The Importer’s] Cincinnati, Ohio mailing address

In addition, a label was permanently attached to the inside of each glove. These labels set forth the country of origin in a manner consistent with 19 U.S.C. §1304. In response to the importer’s request, we noted:
the proposed marking is in close proximity, on the same side, and in comparable print size to the U.S. address that is also located on the collar band. Furthermore, the proposed marking refers the ultimate purchaser to a conspicuous location on the glove in reasonable proximity to themarking. (Emphasis added).

As a result, we found that the proposed country of origin markings satisfied §134.46.

Applying this administrative precedent, we find that the subject merchandise is correctly marked. The proposed instructions “referthe ultimate purchaser to a conspicuous location on the [can which is] in reasonable proximity to themarking.” HQ 562832. Furthermore, the instructions and the U.S. address are immediately next to each other and are printed in an identical font. Finally, “the name of the country of origin is preceded by ‘Made in.’” As a result, the ultimate purchaser is not likely to be “mislead or deceived as to the actual country of origin.” 19 CFR §134.46.

HOLDING:

Based on the facts of this case, we find that proposed marking methods satisfy the general marking requirements of 19 U.S.C. §1304 and the special marking requirements of 19 CFR §134.46. The ultimate purchaser is not likely to be mislead or deceived as to the actual country of origin of the article.

Sincerely,

Gail A. Hamill, Chief
Tariff Classification and Marking Branch

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