MAR-05 RR:TC:SM 561519 KKV
Mr. Michael W. Muczynski
CCL Customs Manufacturing, Inc.
1 West Hegeler Lane
Danville, IL 61832
RE: Country of origin marking requirements applicable to aerosol cans
Dear Mr. Muczynski:
This is in response to your letter dated September 15, 1999, which requests a ruling regarding the country of origin marking requirements applicable to aerosol cans.
FACTS:
You indicate that CCL Custom Manufacturing, a division of Canadian company CCL Industries, is a contract or “toll” filler of various consumer products, such as aerosol deodorants, hairspray, etc. In addition to the two filling facilities located in the U.S., you wish to utilize a third filling facility located in Canada. Accordingly, you wish to use lithographed artwork that indicates either Canada or the United States as the potential country of origin together with instructions to see the bottom of the can, where the country of origin would be printed together with production code information. You propose to mark the side of the aerosol can, “Made in Canada or USA – See bottom of can for actual country of origin.”
ISSUE:
Whether the requirements of 19 U.S.C. 1304 would be satisfied by a label containing disjunctive origin statements together with a statement advising the ultimate purchaser to inspect the bottom of the can for the actual country of origin.
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 U.S., the English name of the country of origin. The purpose of the marking statute is outlined in United States v. Friedlaender & Co., 27 CCPA 297 at 302, C.A.D. 104 (1940), where 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 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.” Part 134, Customs Regulations (19 C.F.R. Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.
It is generally Customs’ policy not to accept disjunctive country of origin marking such as “Made in Canada or the U.S.A.” because it does not indicate the actual country of origin as required by 19 U.S.C. 1304. See Headquarters Ruling Letter (HRL) 558647, dated November 30, 1994. Therefore, we find that labeling the aerosol can with the use of a disjunctive marking without any additional labeling statement would not satisfy the marking requirements. However, we note that in certain instances, Customs previously has allowed importers to place a mark on the exterior of a container instructing the ultimate purchaser to view the actual article to determine its country of origin. In HRL 734491, dated April 13, 1992, Customs ruled that an importer of automobile parts may mark the packaging “Contents Imported, See Article for Country of Origin”. In HRL 734544, dated July 24, 1992, Customs allowed the importer to mark the cartons not only with the possible countries of origin, but also with the instruction to inspect the item itself for the actual country of origin. In order to qualify for this type of marking, Customs held that the carton must be unsealed allowing the purchaser to inspect the product prior to purchase. See also HRL 732099, dated November 3, 1989 (“see bulb for country of origin” is acceptable on resale carton); HRL 732374, dated July 9, 1989 (“refer to neck label” acceptable on polybag containing shirt). Here, although the instructions to inspect the article for its country of origin will appear on a conspicuous place on the cans themselves, rather than on the outside of a container, the situation in this case is analogous to HRL 734544, supra, because the ultimate purchaser will have the opportunity to see the country of origin marking prior to purchase because it will be visible on the bottom of the aerosol can.
Additionally, we note the applicability of the special marking requirements of 19 CFR 134.46, which is triggered by the disjunctive marking statement. Section 134.46 contains more rigorous marking requirements designed to alleviate the possibility of misleading an ultimate purchaser with regard to the country of origin of an imported article. Section 134.46 states:
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.
Although Customs has held that the requirements of 19 CFR 134.46 are not applicable in each and every instance where a non-origin geographic reference appears on a product label, where, such as here, the geographical reference appears in a context which is likely to create confusion by the ultimate purchaser regarding the country of origin, the special marking requirements of 19 CFR 134.46 are triggered. See Treasury Decision (T.D.) 97-72, published in the Federal Register on August 20, 1997, (62 FR 44211). In prior rulings, Customs has determined that a marking similar to the proposed marking satisfies 19 CFR 134.46. In HRL 735321, dated January 19, 1995, Customs discussed the acceptability of proposed marking samples for cutlery and an accompanying wood block in the context of the more restrictive requirements of 19 CFR 134.46 and 134.47. In reviewing proposed blueprints of boxes for marking requirements, Customs ruled that, where country of origin marking reading “Cutlery and Storage Block made in Taiwan or China as indicated on the product” appeared on the side panel of an unsealed box in a separate paragraph from the warranty information, such language was acceptable for purposes of 19 CFR 134.46, provided that the actual country of origin appeared on the individual knife and block. Similarly, in HRL 734469, dated September 22, 1992, Customs ruled that hang tags which were affixed to conspicuously marked sunglasses and marked with the words “Country of Origin Indicated On Sunglasses” in close proximity and in at least a comparable size to the non-origin geographical reference “Dallas, TX U.S.A.” satisfied the country of origin requirements of 19 CFR 134.46. See also, HRL 735024, dated April 7, 1994. Consequently, in this case if the ultimate purchaser is directed to see the country of origin printed on the bottom of the aerosol can, and the country of origin is preceded by the words, “Made in,” “Product of” or similar words, we find that the requirements of 19 CFR 134.46 would be satisfied.
For your information, however, we note that the Federal Trade Commission ("FTC") has jurisdiction concerning the use of the phrase, Made in the USA” and similar claims of U.S. origin; consequently, any inquiries regarding its use should be
directed to that agency at the following address: Federal Trade Commission, Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508.
HOLDING:
Where the side of an aerosol can is printed with the phrase “Made in Canada or USA” as part of its lithographic artwork, the special marking requirements of 19 CFR 134.46 are satisfied where a specific instruction directing the ultimate purchaser to inspect the bottom of the can for the actual country of origin appears in close proximity to the disjunctive statement, provided that the actual country of origin printed on the bottom of the can is preceded by the phrase, “Made in, Product of,” or similar words.
A copy of this 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