HQ H009022 - Country of Origin Marking – Bagel Crisps - United States International Trade Commision Rulings

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HQ H009022

June 28, 2007

OT:RR:CTF:TCM H009022 ARM

CATEGORY: MARKING

Jessica T. DePinto
Hodes, Keating & Pilon
134 North LaSalle Street, Suite 1300
Chicago, IL 60602

RE: Country of Origin Marking – Bagel Crisps

Dear Ms. DePinto:

This is in response to your submissions of February 27, 2007, and April 9, 2007, on behalf of Nonni’s Food Company Inc., regarding the country of origin marking of its line of bagel crisps sold under the “New York Style Brand” trademark.

FACTS:

The merchandise, New York Style Brand® Bagel Crisps®, are crisp, twice-baked snack foods resembling a thinly sliced bagel, put up for retail sale in laminated paper bag, folded so as to resemble a paper lunch bag in size and shape, holding 6 ounces, net weight. The entire bag contains a graphic of a map of New York City, with place names such as Manhattan, Hudson River, New York City Harbor, Queens and Long Island, visible on all four panels on the bag. A picture of the bagel crisps appears around the bottom of the four sides of the bag. Each side of the bag contains an informational panel that overlays the map graphic. On the front panel of the bag appears the New York Style Brand registered trademark, the variety of Bagel Crisps contained within the package, the net weight of the package, and a symbol of kosher certification.

On the back panel of the package, the New York Style Brand trademark is reproduced, approximately one-half the size of the mark on the front panel, below which is a body of text information about the Bagel Crisps. Included in the text is the statement that the snack offers “the same delightful taste as the items found in New York City’s traditional neighborhood bakeries.”

One side panel contains the required U.S. Food and Drug Administration “Nutrition Facts” information, a statement of the ingredients, an allergy warning, and the following information regarding the distributor: “New York Style Brand, 8 Nicholas Court, Dayton, NJ 08810 . . .” a web address and a toll free number for “questions or comments from consumers within the United States.”

The other side panel contains another block of “Nutrition Information” a listing of ingredients, an allergy warning, a statement “imported and Distributed Outside the United states by,” followed by the names and addresses for two distributors, one in Australia and another in New Zealand, and the words “Made in Bulgaria” in upper case letters approximately the same size type as the names of the outside U.S. distributors. Additionally, the side panel contains the words “best before” to be marked with a freshness date, the UPC symbol and the flavor of the Bagel Crisps in the package.

ISSUE:

Does the proposed marking of the package of Bagel Crisps® satisfy the country of origin marking requirements?

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 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. Friedlaender & Co., 27 C.C.P.A. 297, 302 (1940).

Part 134 of the Customs Regulations implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b) of the Customs Regulations (19 CFR §134.41(b)), mandates that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain.

Of concern here are the requirements of two related provisions of the marking regulations, section 134.46, Customs Regulations (19 CFR §134.46) and section 134.47, Customs Regulations (19 CFR §134.47).

Sec. 134.46 Marking when name of country or locality other than country of origin appears. 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.

Sec. 134.47 Souvenirs and articles marked with trademarks or trade names. When as part of a trademark or trade name or as part of a souvenir marking, the name of a location in the United States or ``United States'' or ``America'' appear, the article shall be legibly, conspicuously, and permanently marked to indicate the name of the country of origin of the article preceded by ``Made in,'' ``Product of,'' or other similar words, in close proximity or in some other conspicuous location.

The purpose of both provisions is the same, namely to prevent the ultimate purchaser from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. The critical difference between the two provisions is that section134.46 requires that the name of the actual country of origin appear "in close proximity" to the U.S. reference and in lettering of at least comparable size. CBP has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears. See HRL 708994, dated April 24, 1978. The more restrictive requirements of section 134.46 are designed to alleviate the possibility of misleading an ultimate purchaser with regard to the country of origin of an imported article, if such article or its container includes language which may suggest a U.S. origin (or other foreign locality not the correct country of origin).

By contrast, section 134.47 is less stringent, providing that when as part of a trade name, trademark or as part of a souvenir marking, the name of a location in the U.S. or "United States" or "America" appears on the imported article, the name of the country of origin must appear in close proximity or "in some other conspicuous location.” In such circumstance, no comparable size requirement exists. In other words, the latter provision triggers only a general standard of conspicuousness. In either case, the name of the country of origin must be preceded by "Made in", "Product of", or other similar words.

There are three situations we must consider in this case: (1) references displayed in connection with a trade name; (2) references provided in connection with promoting the product; and (3) references to a U.S. address provided in connection with distribution information. You claim that only section 134.47 is applicable to all of these situations and that the single “Made in Bulgaria” reference on a side panel of the package satisfies that requirements of that provision. For the reasons set forth below, we disagree.

With regard to the first situation, the front and back panels contain the registered trademark name. We agree that the registered trademark name appearing alone on a particular panel, as it did in Headquarters Ruling (HQ)734245, dated February 18,1992, would only trigger the requirements of section134.47, that the package be marked with the country of origin in a conspicuous location. You argue that, for the instant merchandise, the side panel containing the “best by . . .” date is a conspicuous location.

We find your argument unpersuasive. For instance, in your April 9, 2007 submission, you claim that in HQ 734245, CBP held that the words “Made in China” printed in lettering approximately 1/8 inch tall on the bottom of a box containing a toy car satisfied the requirements of section 134.47 because the marking was easily found and read without strain which made the five other references to the “American Muscle” trademark acceptable. CBP did no such thing. In that case, the ruling referred to a revised sample where the words “Made in China” were printed on the front of the package below the cellophane display window, in the lower right hand corner of the package’s front panel in white lettering approximately ½ inch high against a black background. It was this significantly larger and more prominent proposed marking that satisfied the provisions of Section 134.47.

You also cite HQ 558638, dated November 18, 1994, wherein CBP found that the trademark “U.S. Gauge” printed in approximately 8 point type on the bottom of the front and back panels of a box triggers the marking requirements of section 134.47. CBP found that the words “Made in China” printed in 6 point type on the top flap of the box along with all of the other product information satisfied the conspicuous requirement. The circumstances of HQ 558638 are completely dissimilar to those of the instant case. First, a box containing a gauge is about half the size of the instant package. The boxes there were fairly plain and mostly white. The trademark name and origin information were printed in close to the same size type. Here, the trademark name printed on the front and back sides of the bag is in type far larger than that used for the origin marking on the side panel and the trademark name is printed amidst many other references to New York City.

Furthermore, you argue that the instant case is not analogous to that found in HQ 735085, dated June 4, 1993, where CBP counted at least twenty references to America or to a U.S. location on a sixteen-ounce bag of frozen vegetables. You state that CBP did not require the origin marking to appear in all twenty locations, but only on the front and back of the package. We note that a bag of vegetables would only have a front and back panel. Hence, the origin information was required for all sides of the package. Here, there are at least ten non-origin references on a six-ounce bag of bagel crisps. For instance, the front panel contains a graphic of a map of Manhattan with the name of that borough printed in large capital letters. “Hudson River” and “New York City Harbor” can also be seen on the front of the bag. The back panel contains text describing the product in relation to “New York City’s traditional neighborhood bakeries.” When opened, the bag displays the word “Queens” in the background map graphic. The instant package is about one third the size of the bag of vegetables and contains about one half the number of non-origin references. CBP considers these cases analogous. As such, even under section 134.47, in order to meet the “conspicuousness” requirement, both front and back panels must be marked with the country of origin preceded by the words “Made in ”, “Product of . . .” or other similar construction. The marking should be as relatively conspicuous in color and size as the trademark itself in accordance with HQ 734245.

With regard to the third situation, references to a U.S. address provided in connection with distribution information, you claim that the New Jersey, Australia, and New Zealand distributor addresses do not trigger the requirements of section 134.46 because it is highly unlikely to mislead or deceive the ultimate purchaser into believing that the product originates from the U.S., Australia or New Zealand. Yet, T.D. 97-92 specifically states “CBP agrees that references to the U.S. made in the context of a statement relating to any aspect of the production or distribution of the products, such as . . . .’Distributed by ABC Inc., Colorado, U.S.A.,’ are misleading to the ultimate purchaser and would still require country of origin marking in accordance with section 134.46, even as amended by the proposal.” The issuance of T.D. 97-92 did not change the longstanding policy of CBP to apply the requirements of section 134.46 to distribution information. (See Headquarters Rulings 734790, dated October 22, 1992 and 560210, January 24, 1997.) Therefore, the distribution information on both side panels of the package must be accompanied by origin information in lettering of at least comparable size, in accordance with the provisions of section 136.46. We note that the side panel of the sample with the foreign distribution information already complies with these provisions.

HOLDING:

Due to the large number of references to non-origin localities contained on the six-ounce package of bagel crisps, both the front and back sides of the laminated paper bag package must be marked with the country of origin, in accordance with section 134.47. Additionally, the distribution information on the side panels containing references to non-origin US and foreign localities on the bagel crisps package triggers the requirements of 19 CFR section 134.46. Furthermore, the country of origin must be preceded by “Made in,” “Product of” or other similar words on each side of the package. We note that one side panel of the sample already complies with this ruling.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transactions.

Sincerely,

Gail Hamill, Chief

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