CLA-2 CO:R:C:G 085766 NLP
A.N. Deringer, Inc.
30 West Service Road
Champlain, New York 12919
RE: Classification of "Dinosuds" Bubble Bath; Eligibility of
"Dinosuds" under the United States-Canada Free Trade
Agreement; Country of Origin Marking
This is in response to your letter of October 3, 1989,
requesting a classification of "Dinosuds" bubble bath
(hereinafter "Dinosuds") under the Harmonized Tariff Schedule of
the United States (HTSUS). In addition, you requested a ruling as
to the applicability of the United States-Canada Free Trade
Agreement (FTA) to the instant merchandise and whether the
product has met the country of origin marking requirements. A
sample was submitted for our examination.
The article at issue is a plastic container designed to
resemble a dinosaur that is filled with bubble bath. The plastic
container, which is made in China, is imported into Canada and it
is then filled with the bubble bath. The bubble bath is entirely
of Canadian origin and it is manufactured by Belcam in St. Jean,
1. What is the tariff classification of the Dinosuds under the
2. Whether this article is eligible for preferential treatment
under the FTA?
3. Does the instant merchandise meet the Country of Origin
LAW AND ANALYSIS:
Issue 1- Classification of the Dinosuds under the HTSUS
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule.
Goods which cannot be classified in accordance with GRI 1 are to
be classified in accordance with subsequent GRI's taken in order.
GRI 5(a) states that:
Camera cases, musical instrument cases, gun cases,
drawing instrument cases, necklace cases and similar
containers, specially shaped or fitted to contain a
specific article or set of articles, suitable for
long-term use and entered with the articles for
which they are intended, shall be classified with
such articles when of a kind normally sold therewith.
This rule does not, however apply to containers which
give the whole its essential character.
Furthermore, GRI 5(b) provides that:
Subject to the provisions of rule 5(a) above, packing
materials and packing containers entered with the goods
therein shall be classified with the goods if they are
of a kind normally used for packing such goods. However,
this provision does not apply when such packing materials
or packing containers are clearly suitable for repetitive
The Dinosuds container is not a specially shaped or fitted
container within the meaning of GRI 5(a), nor is it considered
the normal packaging for bubble bath under GRI 5(b). The
container, which resembles a dinosaur caricature, is designed for
product appeal to attract consumers and use as a play item for
children while the contents are being consumed, and afterwards,
rather than as a simple container for packing bubble bath.
Furthermore, the instant container may well be refilled with
bubble bath purchased in conventional containers.
The instant container plays a major role in giving the
product, "Dinosuds", its essential character. The form of the
container adds significantly to the commercial appeal of the
product, and is of substantially greater value than the bubble
bath. It is the container, with a caricature of a dinosaur's
head and body, which provides the visual appeal of the product.
Therefore, the container and the bubble bath are classifiable
separately under the HTSUS.
The bubble bath would be classifiable in heading 3307,
HTSUS, which provides for pre-shave, shaving or after-shave
preparations, personal deodorants, bath preparations,
depilatories and other perfumery, cosmetic and toilet
preparations, not elsewhere specified or included. The plastic
dinosaur container, because of its substantial play value, would
be classifiable in heading 9503, HTSUS, which provides for toys
representing animals or non-human creatures and parts and
Issue 2- Eligibility of the Dinosuds for preferential treatment
under the United States- Canada Free Trade Agreement
General Note 3(c)(vii)(B), HTSUS, provides that goods
imported into the customs territory of the United States are
eligible, under the FTA, for reduced rate treatment if they are
"goods originating in the territory of Canada". According to
this note, goods are considered to be of Canadian origin for FTA
(1) they are goods wholly obtained or produced in the
territory of Canada and/or the United States, or
(2) they have been transformed in the territory of
Canada and/or the United States so as to be subject--
(I) to a change in tariff classification in Canada
as described in the rules of General Note
In the instant case, the bubble bath and the container are
separately classifiable. The bubble bath, as a product of
Canada, is eligible for preferential treatment under the FTA,
whereas the container, which is a product of China, is not
eligible for FTA preferential treatment.
Issue 3- Country of Origin Marking Requirements
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 articles.
The purpose of the marking statute is set forth in United States
v. Friedlaender & Co., 27 CCPA 297, 302 C.A.D. 104 (1940), in
which the court stated that "Congress intended 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 are a
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."
The provisions of 19 CFR Part 134 are the Customs
Regulations which implement the country of origin marking
requirements and exceptions of 19 U.S.C. 1304. Subpart C of 19
CFR Part 134 provides for country of origin marking of
containers. This section recognizes two broad categories of
containers. Section 134.23 specifies that reusable containers,
which must be individually marked with their country of origin,
are either: (1) those containers designed for
or capable of reuse after their contents have been consumed; or
(2) containers which give the whole importation its essential
character, having lasting value or decorative use. Section
134.24 provides that disposable containers are the usual and
ordinary types of containers and holders, including cans,
bottles, paper or polyethylene bags, paperboard boxes, and
similar containers or holders which are ordinarily discarded
after the contents have been consumed.
It is Customs opinion that the Dinosuds container falls
within Section 134.23. The container provides the essential
character for the Dinosuds product. It provides both the
structural integrity and the visual appeal of the product.
Thus, the container must be marked with its country of origin.
The Dinosuds container does not meet the country of origin
marking requirements. Though the container is marked on the
bottom "Made in China", this marking is somewhat misleading.
The consumer may think that the container and its contents are
both made in China. Therefore, the marking should specify that
it is the container which is made in China.
Moreover, the tag attached to the Dinosuds meets the
requirements for Section 134.23, for it specifies that the
container is made in China. However, the tag does not specify
what is "Made in Canada". To indicate the country of origin to
the ultimate purchaser, the bubble bath should be identified as
the item made in Canada.
Finally, if the Dinosuds bubble bath container is covered
with plastic when imported, the markings must still be legible
and conspicuous. If the plastic does obscure the marking on the
bottom, the tag attached to the container should be visible so
that when the purchaser buys the container he can locate the
country of origin of the container and its contents.
The bubble bath is classifiable in subheading 3307.30.5000,
which provides for perfumed bath salts and other bath
preparations: Other. The rate of duty is 4.9 percent ad
valorem. As a product of Canada, the bubble bath is eligible for
a reduced rate of duty of 3.9 percent ad valorem, provided all
applicable requirements are met.
The plastic container is classifiable in subheading
9503.49.0020, which provides for toys representing animals or
non-humans creatures and parts and accessories thereof: Other.
The rate of duty is 6.8 percent ad valorem.
John Durant, Director
Commercial Rulings Division