CLA-2 R:C:S 559064 MLR
Michael A. Johnson, Esq.
O'Donnell, Byrne & Williams
20 North Wacker Drive
Suite 1416
Chicago, IL 60606
RE: Country of Origin Marking on Plastic Food and Beverage
Containers; Plastic Tableware and Kitchenware; Plastic Toys;
Marking Exception; polybag; 19 CFR 134.32(d)
Dear Mr. Johnson:
This is in reference to your letter of February 28, 1995,
requesting a ruling on behalf of Tupperware U.S., Inc.
("Tupperware"), concerning a marking exception for certain
plastic Tupperware products. A sample was submitted with your
request.
FACTS:
Tupperware is a manufacturer of plastic items, including
food and beverage containers, plastic tableware, kitchenware, and
toys. Tupperware products are manufactured in 15 countries, and
Tupperware has four marketing regions. It is stated that
traditionally, Tupperware manufactures its products in the
country or region in which they will be marketed. However,
certain product lines, such as toys, are only manufactured in a
few plants. Additionally, extra stock may be exported to regions
where demand is high, or where premium promotions are introduced.
Tupperware states that because country of origin marking is
not required among countries in the European Union ("EU"),
Tupperware products manufactured there frequently do not contain
a country of origin mold. The same is true for Tupperware
products manufactured in the U.S. It is also stated that
Tupperware does not mark its products with adhesive labels since
a variety of adhesives are required depending on the type of
plastic the item is made from, and because removing such labels
may abrade the plastics and is considered an onerous task by many
consumers. However, Tupperware states that it frequently
includes an instructional paper flyer inserted into the same
polybag as the product, which describes its use. The sample
instructional flyer does not note the country of origin of the
plastic Tupperware item. Tupperware also states that some of the
products are too small to be marked.
It is further stated that Tupperware uses direct marketing
to sell its products, and does not sell its products through
retail outlets. Therefore, they are only sold by representatives
direct to the ultimate home consumers, traditionally by means of
a "Tupperware party." Sometimes Tupperware sales representatives
market the products from catalogs to interested consumers. In
the U.S., the Tupperware products are stated to be distributed in
one of two methods. Under the first method, a distributor places
a weekly order for the products with Tupperware's manufacturing
unit. The product ordered is shipped to the distributor in d-paks which is a standard carton containing a single item in a
specified quantity. A distributor must order in multiples of
this quantity, as no partial d-paks are shipped. In many
instances, the product inside the d-paks is packed in individual,
sealed polybags. This is the case when descriptive literature is
provided, or when it is necessary to communicate the country of
origin of the product by some means other than molding into the
product. At the distributor's premises, the d-paks are opened
and individual products are placed in larger polybags by consumer
order and made available to the sales representative for delivery
to the consumer or party hostesses. If the individual products
are sealed in a polybag, this bag remains intact and is placed in
the larger polybag for delivery.
The second method of delivery within the U.S. is called
"Tupperware Express." Under this distribution method, each
consumer order is placed on an individual order form, as in the
first method, but each order is entered separately into
Tupperware's order fulfillment system. These orders are batched
by ZIP code and filled using an automated "robopick" system.
Each consumer order is then individually packed and shipped to
the end consumer directly by the postal service. Products that
are individually polybagged are stored in totes until needed on
the robo line and are placed in the line in their packaged form.
Each order is packed individually at the end of the line and
shipped.
Tupperware states that the products without a country of
origin marking molded into the plastic are placed individually at
the plant of manufacture in clear, see-through polybags which
bear a label identifying the country of manufacture. It is
stated that the need for this method of marking is communicated
to the origin plant when an order for shipment is placed. The
sample of the polybag is continuously printed the length of the
polybag with "MADE IN FRANCE," along with a triangular recycling
symbol, denoting a "2", and is not sealed. It is stated that the
print of the country of origin marking will not be less than 1
centimeter in height, in capital letters, and will not be across
any seam of the polybag.
ISSUE:
Whether the plastic Tupperware products may be excepted from
marking pursuant to 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d),
provided the individual polybag itself is marked with the country
of origin.
LAW AND ANALYSIS:
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.
Pursuant to 19 U.S.C. 1304(a)(3)(D) and section 134.32(d),
Customs Regulations {19 CFR 134.32(d)}, an exception from
individual marking is applicable where the marking of the
container of an imported article will reasonably indicate the
origin of the article. This exception is normally applied in
cases where the imported article(s) is imported in a properly
marked container and Customs officials at the port of entry are
satisfied that the ultimate purchaser in the U.S. will receive it
in its original marked container.
Tupperware claims that an exception from marking each
plastic item individually should be found because each individual
polybag will be marked with the country of origin of the
individual plastic product packed therein before the product
reaches the consumer. It is stated that because in both methods
of distribution, individually polybagged items are either packed
at the distributor's facility or at the Tupperware plant, there
is no opportunity for the sales representatives to unpack them
prior to delivery. Therefore, it is claimed that each Tupperware
product will be received by the ultimate purchaser in a polybag
indicating the country of origin.
As support for marking the polybag instead of the plastic
item itself, Headquarters Ruling Letter (HRL) 733694 dated April
15, 1991, is cited where Customs held that curtain panels
imported from Turkey in clear cellophane bags containing the
curtain panel and a cardboard insert giving product information,
the name of the importer, and the country of origin were entitled
to the exception provided under 19 U.S.C. 1304(a)(3)(D). Customs
stated that since the cardboard inserts had all of the product
information and the importer assured Customs that the products
were never sold without their cellophane bags, marking only the
cardboard insert was sufficient. You also cite HRL 731853 dated
December 26, 1989, (golf balls need not be individually marked
provided the district director was satisfied that the balls were
sold in their original retail packaging containing the country of
origin); HRL 732063 dated January 19, 1989 (boxes labeled with
the country of origin and part number of transmission gears and
parts was sufficient country of origin marking); and HRL 735039
dated March 24, 1993 (marking the blister cards containing dental
instruments was sufficient). Accordingly, it is claimed that
since Tupperware's products are delivered to the ultimate
purchaser by a direct force of sales representatives, or directly
from the manufacturing plant in the original individual polybag
packaging into which the Tupperware products are packed, an
exception under 19 U.S.C. 1304(a)(3)(D) should be found because
Tupperware can reasonably assure that its products will reach the
ultimate purchaser in the polybags containing the country of
origin marking.
We note that in each of the cited rulings, the country of
origin was not found on a polybag but was printed on a cardboard
insert, retail box, or blister card. However, Customs has
discussed the country of origin marking on polybags. In HRL
733796 dated June 10, 1991, Customs found that five
undergarments, not individually marked, but packed together in a
transparent, heat-sealed ziploc-type polybag, and printed with
the country of origin of the undergarments (China), the U.S.
distributor, and other product information, met the requirements
of 19 U.S.C. 1304. However, in C.S.D. 90-17, it was held that
an exception from country of origin marking under 19 CFR
134.32(d) could not be approved for sunglasses imported in an
unsealed clear plastic bag, approximately 9" by 3", and printed
with the words "Made in Taiwan" because the retailer or
wholesaler could easily remove the sunglasses from their
packaging. However, it was noted that an exception could be
found if the bag were sealed.
In HRL 734541 dated October 8, 1992, the marking of a
polybag in lieu of pins themselves was considered. Relevant
factors were discussed whether an article is likely to remain in
its original container. These factors included the chain of
distribution, the type of container, and the nature of the
article. In HRL 734541, the importer did not distribute the pins
directly to the ultimate purchaser, but rather through
distributors, and therefore, could not conclusively state that
the pins would remain in their individual bags in all cases until
receipt by the ultimate purchaser. However, statements by two
distributors were submitted indicating that they do not remove
the pins from their individually marked polybags prior to
delivery to their clients, and one such statement from a client
was submitted. Customs stated that although these statements
alone were not conclusive, the fact that each pin was
individually packaged in its own heat-sealed bag tended to show
that the pins were designed to be distributed in this fashion.
Also, because the pins were small and could get lost or tarnished
were they to be removed prior to receipt by the ultimate
purchaser, was further evidence that they would remain in their
marked polybags. Accordingly, Customs found that it was
extremely likely that the pins would remain in their original
heat-sealed polybags until receipt by the ultimate purchaser, and
that the marking of the individual polybags in lieu of the pins
themselves was acceptable.
By contrast, in HRL 734314 dated January 27, 1992, Customs
found that the country of origin marking on polybags of articles
delivered to consumers by mail, based on catalog sales, were more
for the benefit of the importer in tracking inventory than for
the benefit of the ultimate purchasers. It was stated that
because the polybag containers were unsealed and disposable,
Customs was not convinced that they would always remain with the
articles until the articles reached the ultimate purchaser.
Therefore, although the country of origin marking on the polybags
was conspicuous for purposes of 19 U.S.C. 1304 and 19 CFR
134.41(b), the articles themselves had to be conspicuously marked
with their country of origin, as there were no assurances that in
all foreseeable circumstances the articles would reach the
ultimate purchasers in their original unopened marked containers.
In this case, the polybags are not sealed, which were
reasons for disallowing an exception from marking in C.S.D. 90-17
and HRL 734314. Tupperware has stated that it will notify its
sales representatives that the plastic items are to be delivered
in the polybags containing the country of origin marking.
However, because the polybags are flimsy and are not sealed, and
because numerous sales representatives are involved in
distributing the Tupperware products to the ultimate purchasers,
we are not satisfied that in all foreseeable circumstances that
the plastic items will reach the ultimate purchaser in the marked
polybag. In addition, along with the marking "MADE IN FRANCE,"
the polybag is printed with a triangular recycling symbol
denoting a "2", which appears to indicate that the polybag is
recyclable, and not the plastic item. Therefore, it does not
appear clear that the country of origin marking on the polybag
refers to the plastic Tupperware product. Accordingly,
eligibility for an exception under 19 CFR 134.32(d) has not been
established.
HOLDING:
Based upon the information provided, it is our opinion that
because the polybags are not sealed and are flimsy, and because
numerous sales representatives are involved in distributing the
Tupperware products to the ultimate purchasers, we are also not
satisfied that in all foreseeable circumstances that the plastic
items will reach the ultimate purchaser. Therefore, the
Tupperware products are not excepted from marking under 19 CFR
134.32(d).
Sincerely,
John Durant, Director
Commercial Rulings Division