NY N018464 - THE COUNTRY OF ORIGIN MARKING OF A COOKIE KIT; ARTICLE 509 - United States International Trade Commision Rulings

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NY N018464

October 30, 2007

MAR-2 OT:RR:E:NC:N2:228

CATEGORY: MARKING

Ms. Angie Thayer
Wilton Industries, Inc.
2240 W. 75th Street
Woodridge, IL 60517

RE: THE COUNTRY OF ORIGIN MARKING OF A COOKIE KIT; ARTICLE 509

Dear Ms. Thayer:

This is in response to your letter dated October 12, 2007 requesting a ruling on the country of origin marking for an imported cookie kit. An illustration of a sample package was submitted with your letter for review.

The cookie kit consists of pre-baked cookies and the materials used to decorate them, packaged for retail sale in a sealed container. The decorating materials may consist of icing, an icing mix, candies, and a decorating bag. The cookies and icing or icing mix will be products of Canada, the candies may be products of Canada or Argentina, and the decorating bag will be a good of United States origin. The kits will be assembled and packaged in Canada and shipped to your warehouse in the United States, for distribution to retail stores.

The sample you provided appears to be an image of the rear panel of a retail container. The information on this panel lists the components of the cookie kit (cookies, an icing mix, spearmint leaves, purple/orange mini round candies, and orange/black spice drops), states the kit was “manufactured for Wilton Industries, Inc. Woodridge, IL 60517”, and declares “Decorating Bag made in U.S.A. Balance of contents made in Canada.”

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.

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 cookie kit is a good of Canada, Argentina, and the United States for marking purposes. The sealed container in which the cookie kit is imported must indicate, in the manner described above (i.e., “made in,” “product of”, or other words of similar meaning), where each component was made.

Only merchandise which is "of foreign origin," i.e., of a country of origin other than that of the U.S., is subject to the requirements of 19 U.S.C. 1304. Products of the U.S. which are exported for further processing and subsequently returned, are not subject to country of origin marking upon importation to the U.S. unless the further processing in the foreign country constituted a substantial transformation of the product. Here, the U.S.-made decorating bags in the cookie kit have not been substantially transformed. They are not subject to the country of origin marking requirements under 19 U.S.C. 1304.

Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580 on the propriety of proposed markings indicating that an article is made in the U.S.

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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