MAR-2-05 CO:R:C:V 735028 ER
Ms. Pamela L. Drazich
Ron Jon Surf Shop
3850 S. Banana River Blvd.
Cocoa Beach, Florida 32931
RE: Country of Origin Marking of Stuffed Toys; Conspicuous
Location; Hang Tag; Label; 19 CFR 134.1(d); 19 CFR 134.46.
Dear Ms. Drazich:
This is in response to your letter dated March 3, 1993, in
which you request a ruling regarding the sufficiency of your
current method of marking stuffed toy hang tags and sewn-in
labels with country of origin. A sample stuffed toy with hang
tags and sewn-in label attached was submitted with your request.
FACTS:
Your company imports stuffed toys from C.A. Australia, a
company in Australia. The toys are made in China and are then
shipped to the Australian company which, in turn, ships the toys
to your warehouse in the U.S. The toys feature two hang tags,
one resembling an Australian flag with references to Australia on
the front and back of the tag and a marking "Made in China" on
the back, and another tag which features the words "Made in
China" on one side, only. Additionally, a sewn-in label is
attached to the toy which displays references to Australia and
the marking "Handcrafted in China".
The front of the hang tag resembles an Australian flag and
bears two references to the word "Australia". The first
reference is part of the legend "Designed in Australia Made
Overseas" and appears in letters each measuring approximately
1/8" x 1/16". The second reference appears in upper case letters
each measuring approximately 1/4" x 1/4". The words "Made in
China" are printed on an adhesive label attached to the back of
the hang tag. The words "Australia" and "Australian" appear
four more times on the back of the hang tag. The words
"Handcrafted in China" appear on the sewn-in label in addition to
the words "Australia" and "Australian".
ISSUE:
Whether the stuffed toys are adequately marked with 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 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.
By enacting 19 U.S.C. 1304, Congress intended to ensure that the
ultimate purchaser would be able to know by inspecting the
marking on the imported goods the country of which the goods are
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., 27 C.C.P.A. 297, 302 C.A.D. 104 (1940).
The "ultimate purchaser" is defined generally as the last
person in the U.S. who will receive the article in the form in
which it was imported. 19 CFR 134.1(d). For purposes of this
ruling we will assume that the product is sold at the retail
level, and accordingly, that the consumer is the ultimate
purchaser.
Part 134, Customs Regulations (19 CFR 134), implements the
country of origin marking requirements and exceptions of 19
U.S.C. 1304. As provided in section 134.41, Customs Regulations
(19 CFR 134.41), the country of origin marking is considered to
be conspicuous if the ultimate purchaser in the United States is
able to find the marking easily and read it without strain.
Of concern here are the requirements of two related
provisions of the marking regulations, section 134.46, Customs
Regulations (19 CFR 134.46) and section 134.47, Customs
Regulations, (19 CFR 134.47). In the instant case, application
of special marking requirements set forth in these provisions are
triggered by the presence of the word "Australia" which appears
several times on both the front and back of the hang tag and on
the sewn-in label. The purpose of both provisions is the same,
namely to prevent the ultimate purchaser from being misled or
deceived when the name of a country or place other than the
country of origin appears on an imported article or its
container. The critical difference between the two provisions is
that 19 CFR 134.46 requires that the name of the actual country
of origin appear "in close proximity" to the U.S. reference and
in lettering of at least comparable size. By contrast, 19 CFR
134.47 is less stringent, providing that when as part of a trade
name, trademark or souvenir mark, the name of a location other
than the country of origin appears on the imported article, the
name of the country of origin must appear in close proximity or
"in some other conspicuous location". In other words, the latter
provision triggers only a general standard of conspicuousness.
In either case, the name of the country of origin must be
preceded by "Made in", "Product of", or other similar words. No
information was submitted regarding whether the word "Australia"
is part of a trademark, trade name or souvenir mark;
consequently, in the instant case the more stringent requirements
of 19 CFR 134.46 apply.
The country of origin marking on the both the front and back
of the hang tag is insufficient. The front of the hang tag
resembles the Australian flag and bears two references to the
word "Australia". The first reference is part of the legend
"Designed in Australia Made Overseas" and appears in letters each
measuring approximately 1/8" x 1/16". The second reference
appears in upper case letters each measuring approximately 1/4" x
1/4". To comply with the requirements of 19 CFR 134.46, the
words "Made in China" must appear on the same side of the hang
tag as any reference to Australia and in letters of at least
comparable size to those in the largest reference to Australia.
Neither criterion is satisfied by the sole reference to "Made in
China" appearing on the rear of the hang tag or by the second
hang tag which is marked with the words "Made in China" as these
markings are not in close proximity to the reference to Australia
appearing on the front of the first hang tag. This office has a
long standing practice of ruling that the close proximity
requirements of 19 CFR 134.46 mean that the country of origin
marking must appear on the same side or surface as the foreign
reference so that the information is viewable in one inspection
of the item. Moreover, this "same-side" requirement is applied
even if the article is otherwise properly marked with country of
origin. (See HQ 733840 (February 1, 1991) garment hang tags had
to be marked with the country of origin of the garment on the
same side of the hang tag as the U.S. address despite the fact
that the garments were otherwise properly marked with country of
origin; and HQ 729469 (February 24, 1988) gloves otherwise marked
with country of origin did not satisfy marking requirements
because hang tags bearing U.S. reference were not also marked
with country of origin on same side of hang tag as U.S.
reference.)
Additionally, the words "Made in China" appearing on the
back of the hang tag are insufficient because the size of the
letters "Made in China" are not comparable in size to the letters
appearing in the largest reference to "Australia" printed on the
back of the hang tag. We are unable to determine if the use of
the words "Handcrafted in China" on the sewn-in label are
appropriate without knowing if the stuffed toys are indeed
"handcrafted" (as opposed to machine-made) in China. In any
event, if the toys are "handcrafted" the size of the letters in
the marking legend must be at least comparable to those in the
words "Australia" and "Australian" which are also featured on the
sewn-in label.
HOLDING:
To comply with the marking statute and 19 CFR 134.46, the
stuffed animal hang tag and sewn-in label featuring references to
Australia must be marked with country of origin on the same side
of the hang tag and sewn-in label as each reference to Australia
and in lettering of at least comparable size to that in the
largest reference to Australia on the same side.
Sincerely,
John Durant, Director
Commercial Rulings Division