MAR-02 RR:CR:SM 561397 RSD
Mr. Hillard W. Welch
U. S. Representative for FCI France
344 Annabelle Point Road
Centerville, MA 02632-2402
RE: Country of origin marking requirements for ophthalmic devices; disjunctive marking; marking the country of origin in the alternative by using the word “or”
Dear Mr. Welch:
This is in response to your letter dated May 21, 1999, concerning the country of origin marking of various ophthalmic devices. You submitted two sample devices which are labeled as “READY-SET PUNCTUM PLUGS” for our consideration.
FACTS:
FCI (France) operates two manufacturing facilities, one in France and another in Mauritius. Both facilities are owned by Fransitec, the holding company that also owns FCI (France) and its U.S. subsidiary, FCI Ophthalmics, Inc. The products are manufactured in one or both locations depending on their requirements, facilities available, etc. The products are identical regardless where they are produced, and all products must pass the same quality inspection, sterilization routine, and acceptance, as well as packaging and labeling procedures. No matter which plant produces a product, it will ultimately be shipped to France, for quality assurance inspection, packaging sterilization, and labeling. After the processing in France is completed, the products are shipped all over the world.
It is stated that FCI (France) wants to use a single label on its packages to indicate that a product was either produced in France or Mauritius. It is claimed that it is more practical to have a single label indicating that the product may have been manufactured in either location.
ISSUE:
Whether the proposed marking that indicates that the ophthalmic devices were produced either in France or Mauritius satisfies the statutory and regulatory requirements of the country of origin marking law.
FACTS:
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. 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. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. §1304.
Generally, Customs policy is that absent other circumstances, it is not acceptable for purposes of 19 U.S.C. §1304 to mark an article with the legend “Product of ____ or ____”. It is Customs policy not to accept an article marked in the disjunctive since this does not indicate the actual country of origin as required by 19 U.S.C. 1304. In C.S.D. 89 111, effervescent enzymatic cleaner tablets from either West Germany or the U.S. were packaged into retail containers. While Customs acknowledged that the seller could avoid expenses by using the disjunctive marking, “Tablets Made in West Germany or the United States”, Customs held that fully accurate marking would not amount to an economic prohibition, and, therefore, required the package to be marked with only the actual country of origin. Otherwise, the disjunctive marking would do no more than indicate the possibility that the tablets may be of foreign origin.
In HRL 558647, November 30, 1994, Customs held that if either Canadian or U.S. barley was packaged into polyethylene bags, the bags could not be labeled “Product of U.S.A. and/or Canada.” Recently, in HRL 560776, dated May 4, 1999, we ruled that the use of a disjunctive marking on blister cards for various accessories used for home electronics and entertainment systems without any additional labeling statement would not satisfy the marking requirements of 19 U.S.C 1304.
Based on the previous rulings, we hold that it is not acceptable to use alternative or disjunctive marking to indicate the country of origin of the ophthalmic devices. To satisfy the country of origin marking requirements of 19 U.S.C. 1304, the devices must be marked with the actual country where the devices were produced.
HOLDING:
The proposed disjunctive marking statement which indicates that the devices were made in “France or Mauritius” does not satisfy the requirements of the country of origin marking law. To satisfy the country of origin marking law, the devices must be marked to indicate the country where they were actually produced.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division