MAR-2-05 CO:R:C:V 731587
Mr. John Schroeder
President, ValleyBrook Gardens, Ltd.
1831 Peardonville Road, R.R. No. 1
Abbotsford, B.C. Canada VS2 1M3
RE: Country of origin marking requirements applicable to
imported ornamental plants
Dear Mr. Schroeder
This is in reply to your letter of July 5, 1988, concerning
the application of country of origin marking requirements to
imported ornamental plants. We regret the delay in responding.
FACTS:
Your nursery produces ornamental plants for sale to
landscape contractors and garden centers. You had been complying
with country of origin marking requirements for plants imported
into the U.S. by placing a plastic tag in each pot. Due to the
extra handling involved and the chance the tag could be lost from
the pot, you have ceased use of such marking. Your pots now
carry the molded-in words, "POT AND PLANT PRODUCT OF CANADA".
The words appear on the bottom of the pot.
You report that Customs officers in Blaine, Washington,
have objected to the marking now on the pots because they believe
it is not in a conspicuous location. You believe there are two
conspicuous places on the pots, the sides and the bottom. You
correctly state that marking need not appear in the most
conspicuous place on an article or its container and go on to
state that the side of the pot is more conspicuous than the
bottom but marking on the bottom is visible.
ISSUE:
Does country of origin marking molded-in to the bottom a
plastic pot that will be delivered to ultimate purchasers filled
with soil and a plant satisfy the requirements of 19 U.S.C. 1304?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C
1304), requires that every article of foreign origin (or its
container) imported into the United States shall be marked in a
conspicuous location as legibly, indelibly and permanently as the
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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.
Section 304(a)(3)(J) of the Act lists articles which are excepted
from the requirement of individual marking. Included on the "J-
list" are "Plants, shrubs and other nursery stock." However,
pursuant to { 134.33, Customs Regulations (19 CFR 134.33), the
outermost container in which a "J-list" article reaches the
ultimate purchaser is required to be marked to indicate the
country of origin of its contents.
Section 134.41(b), Customs Regulations (19 CFR 134.41(b)),
states in reference to country of origin marking, "The ultimate
purchaser must be able to find the marking easily and read it
without strain."
It is the opinion of this office that the marking
indicating the origin of the plant and pot displayed on the
bottom of the sample pots you submitted is legible, i.e.,
readable without strain. The molded-in lettering of the country
of origin disclosure is the same color as its background and
although such "blind lettering" is usually unacceptable, in this
instance the letters are large enough and sufficiently raised to
make them acceptable in regard to legibility. However, the
marking is not conspicuous, i.e., marking that would be easily
found by ultimate purchasers. We consider it unlikely that a
purchaser will turn upside down a pot full of soil. Further,
pots such as the sample you submitted are often placed in trays
which obscure the bottom of the pots. Finally, we believe that
in many instances the bottoms of the pots would be covered by
muddy water and dirt due to the watering they receive pending
sale to an ultimate purchaser.
The molded-in marking on the bottom of these pots would be
sufficient if the pots were imported empty. However, for pots
you continue to import filled with soil and a plant, we suggest
these alternative markings: (1) move the molded-in marking up to
one of the sides of the pot where it will be easily found by
ultimate purchasers upon observation of the pot and plant;
(2) place an adhesive sticker on one of the sides of the pot
imprinted with country of origin information (the sticker should
be secure enough to remain on the pot during normal handling and
distribution until receipt by an ultimate purchaser) or; (3) you
may return to your old practice of placing a plastic tag in each
pot.
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HOLDING:
Country of origin marking molded-in to the bottom of
plastic pots indicating the origin of the pots and of the plants
contained therein is not conspicuous marking as is required by 19
U.S.C. 1304.
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch