MAR-2-05 CO:R:C:V 735093 AT
District Director of Customs
300 S. Ferry Street
Terminal Island, California 90731
RE: Internal Advice request concerning the country of origin
marking requirements for imported brassieres and the
retail containers in which they are repacked; multiple
countries of origin marking on retail containers; "Tailored
in" in lieu of "Made in" or "Product of"; conspicuous;
19 CFR 134.24(d); 19 CFR 134.46; C.S.D. 89-37; C.S.D. 90-
90; HQ 734096
Dear Sir:
This is in response to your memorandum dated March 15, 1993,
forwarding the December 29, 1992, internal advice request of
Western Overseas Corporation ("Western") on behalf of Exquisite
Form Industries, Inc. ("EFI") on the country of origin marking
requirements for imported women's brassieres and the retail
containers into which the articles are repacked in the U.S. A
sample (Sample #1) of the proposed marking on the imported
article as well as on the retail container were submitted for our
review. Additional samples (Sample #2 and #3) indicating the
marking practices of other importers of brassieres were also
submitted for review.
FACTS:
EFI imports women's brassieres from the Philippines, Mexico,
Indonesia and Pakistan. The brassieres are individually marked
with the phrase "Tailored in ... (name of country)" by means of a
sewn-in fabric label. After importation, they are repacked into
cardboard boxes for retail sale. EFI proposes to mark the retail
boxes with the phrase "Tailored in Either the Philippines,
Mexico, Indonesia or Pakistan; See Garment Label for Details".
The proposed phrase will appear on the bottom end flap. The
front panel of the box (Sample #1) depicts a color picture of a
women wearing the enclosed brassiere and specifies the special
features of the product. Other information such as the company's
name "Exquisite Form", type of brassiere and the Good
Housekeeping warranty also appears on the front panel.
Instructions on how to use the product as well as fitting
instructions appear on the back panel. Also near the bottom of
the back panel the words "Pelham Manor, New York" are printed in
black lettering approximately 4.5 point (A point is approximately
.01384 inch or 1/72 of an inch). The cost, bar grid, size and
color of the product appears on the top flap of the box. A white
paper adhesive sticker is affixed to the bottom end flap of the
box near the lefthand corner marked with the proposed phrase
"Tailored in Either the Philippines, Mexico, Indonesia or
Pakistan See Garment Label for Details" in black lettering
approximately 3 point. The Sample #1 brassiere contained in the
Sample 1 retail box has a sewn in label affixed to the garment
near the connecting strap. The front side of the label is marked
with the phrase "Tailored in the Philippines". The size of the
brassiere also appears on the front side of the label. The fiber
content and care instructions appear on the back side of the
label.
ISSUES:
1) Whether the retail box is excepted from marking if the
brassieres are individually marked with their country of origin
by means of a sewn-in fabric label?
2) Whether the proposed marking "Tailored in Either the
Philippines, Mexico, Indonesia or Pakistan" printed on the retail
container (Sample #1) in the manner described above satisfies the
marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134?
3) Whether the phrase "Tailored in" to designate the country
of origin of imported brassieres satisfies the marking
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), provides that, unless excepted, every article of foreign
origin imported into the U.S. 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 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., 27
C.C.P.A. 297 at 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. Section 134.1(d), Customs Regulations (19 CFR
134.1(d)) defines ultimate purchaser as "generally the last
person in the U.S. who will receive the article in the form in
which it was imported." The definition then gives examples of
who might be the ultimate purchaser if the imported article is
used in the manufacture, if the imported article is sold at
retail in its imported form and if an imported article is
distributed as a gift. If an imported article is to be sold at
retail in its imported form, the purchaser at retail is the
ultimate purchaser. In this case, the ultimate purchaser of the
brassieres is the consumer who purchases the product at retail.
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 U.S. is able to find
the marking easily and read it without strain.
Is the retail box excepted from marking?
The first issue presented in this case is whether the retail
box must be marked with the country of origin given that the
brassieres are individually marked.
Section 134.24(d)(3), Customs Regulations (19 CFR
134.24(d)(3)), provides in part that in the case of an unsealed
disposable container of imported merchandise which is normally
opened by the ultimate purchaser prior to purchase, only the
article need be marked with the country of origin.
Western asserts that the retail containers are excepted from
marking under 19 CFR 134.24(d)(3) and in support cites to C.S.D.
90-90 in which Customs ruled that
unsealed cartons containing properly marked crystal
giftware do not have to be marked with the country of
origin because pieces of crystal giftware are articles
that an ultimate purchaser would normally remove from the
carton to examine prior to purchase.
Western states that persons buying intimate garments such as
brassieres which are sold in retail packages would normally open
such packages an examine the article prior to purchase. Thus, as
was the case with the crystal giftware carton in C.S.D. 90-90,
the retail container does not have to be marked with the country
of origin. We disagree.
Although an ultimate purchaser of the brassiere may open the
retail container prior to purchase and therefore see the country
of origin on the actual brassiere, we find that since the retial
box gives a consumer enough information (size, color and price)
about the actual product inside, an ultimate purchaser does not
necessarily have to open the box to examine the article prior to
purchase, as was the case with the crystal giftware in C.S.D. 90-
90. Furthermore, since a U.S. address "Pelham Manor, New York"
appears on the bottom of the back panel of the retail box an
ultimate purchaser of the brassiere may incorrectly determine
that the product was made in the U.S., rather than the actual
foreign country, if no other country of origin marking appears on
the box. Moreover, since a U.S. address appears on the retail
box, special marking requirements are triggered which require
that the box be marked with the country of origin (see discussion
below). Based on these considerations, we find that the retail
box is not excepted from marking under 19 CFR 134.24(d)(3), and
the box must be marked with the country of origin even though the
article itself is individually marked.
Whether the proposed marking "Tailored in Either the Philippines,
Mexico, Indonesia or Pakistan See Garment Label for Details"
printed on the retail container is an acceptable country of
origin marking?
The second issue presented in this case is whether the
proposed marking "Tailored in Either the Philippines, Mexico,
Indonesia or Pakistan See Garment Label for Details" printed on
the bottom end flap is an acceptable country of origin marking in
view of the fact that the words "Pelham Manor, New York" appear
below on the back panel of the box.
The proposed marking does not designate a specific country
of origin but instead directs the ultimate purchaser to a
location on the article where the country of origin can be found.
Customs has previously approved such country of origin markings.
For example, in C.S.D. 92-33 (September 2, 1992), Customs
determined that the language "See Part Number Label For Country
of Origin" printed on stand-alone boxes and outside wrappers
containing imported engine parts immediately beneath a U.S.
address, was acceptable if the part number label displaying the
name of the country of origin was easily visible to the ultimate
purchaser. See also, HQ 732374 (July 7,1989) (the language
"Refer to neck label for country of origin" printed on the
outside of a poly bag containing men's dress shirts immediately
beneath a U.S. address, provided the neck label displaying the
name of the country of origin in each shirt was easily visible to
the ultimate purchaser). However, the country of origin marking
in both cases had to satisfy the requirements of 19 CFR 134.46 to
be an acceptable marking. Therefore, the proposed marking must
satisfy the requirements of 19 CFR 134.46 to be acceptable.
Section 134.46, Customs Regulations (19 CFR 134.46),
requires that 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 locality 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, appears on an imported article or its container, 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. The purpose of this section
is to prevent the possibility of misleading or deceiving the
ultimate purchaser as to the actual origin of the imported goods.
The special marking requirements set forth in section 134.46 are
triggered by the presence of the words "Pelham Manor, New York"
printed on the back panel above the country of origin marking.
Accordingly, the actual country of origin of the brassiere must
appear "in close proximity" to the U.S. reference and in
lettering of at least a comparable size.
Customs has ruled previously that in order to satisfy the
close proximity requirement, the country of origin marking must
generally appear on the same side(s) or surface(s) in which the
name of the locality other than the country of origin appears
See, HQ 734485 (July 17, 1992). In this case the country of
origin marking is not on the same panel as the U.S. reference in
that the marking appears on the bottom end flap but the U.S.
reference appears on a different side of the box on the back
panel. Also, the country of origin marking is not in lettering
of at least a comparable size since the marking "Tailored in
Either the Philippines, Mexico, Indonesia or Pakistan See Garment
Label for Details" is printed in lettering approximately 3.5
point whereas the words "Pelham Manor, New York", are printed in
4.5 point. Moreover, the country of origin marking is not
located in a conspicuous place since an ultimate purchaser would
tend to look at the front and back panel or top end flap of the
retail box for the size and the price of the article and not the
bottom end flap where the proposed marking is located. In HQ
723579 (March 27, 1990), Customs ruled that ribbon cartridges
sold in a master carton with the country of origin marking on the
bottom of the carton would not be acceptable as it was not
conspicuous. Customs stated that the master carton would likely
be stacked on a shelf so that the bottom of the carton would not
be visible to consumers and that all pertinent information about
the product was contained on the side panels of the box. In
this case all pertinent information about the article (size,
price, consumer instructions, color) is located on the front
panel, back panel or top end flap, not the bottom end flap.
Accordingly, we find that the proposed marking does not satisfy
the requirements of 19 CFR 134.46 and is not an acceptable
marking for the retail container. Also, we find that as
discussed below, use of the phrase "Tailored in" printed on the
retail container to designate the country of origin of the
imported brassieres does not satisfy the marking requirements of
19 U.S.C. 1304.
Whether Use of the Phrase "Tailored in" to Designate the Country
of Origin of Imported Brassieres Satisfies the Marking
Requirements of 19 U.S.C. 1304?
In C.S.D. 89-37 (December 1, 1988), Customs ruled that the
phrase "Fabric made in U.S.A. Tailored in Honduras" properly
indicated that the country of origin of men's shirts was
Honduras. In so determining, Customs stated that shirt
manufacturers have used the phrase "Tailored in" to mean "Made
in" for men's shirts and it has that connotation within the
industry. Evidence was presented in support of this conclusion.
In HQ 734031 (May 20, 1991), Customs ruled that the term
"Tailored in" to designate the country of origin of imported
men's shirts satisfied the marking requirements of 19 U.S.C.
1304. The ruling specifically stated that it applied only to the
marking of imported men's shirts.
In this case, instead of marking imported men's shirts, EFI
proposes to mark imported brassieres with the phrase "Tailored
in" in place of "Made in" or "Product of" to indicate the country
of origin of the garment. The proposed marking "Tailored in"
would not clearly indicate to the ultimate purchaser the true
country of origin of the brassieres. Although Customs found that
the phrase "Tailored in" is synonymous with the phrase "Made in"
in the shirt industry, Western has not submitted evidence which
indicates that the phrase "Tailored in" is a standard phrase used
for brassieres in the garment industry. Western has only
submitted two samples of brassieres in their retail package
(samples #2 and #3) marked with the phrase "Assembled in" in
support of using the phrase "Tailored in" to designate the
country of origin of the imported brassieres. In fact, you
advise us that after reviewing the brassieres shown in the J.C.
Penny Spring and Summer 1993 catalogue (pages 265 to 287) you
found that the phrase "Made in" was consistently used to indicate
the country of origin. Based on this evidence, you concluded
that the phrase "Tailored in" is not a standard phrase used by
the garment industry to connote country of origin of brassieres.
Accordingly, we agree that, unlike men's dress shirts, the phrase
"Tailored in" does not sufficiently indicate the country of
origin of the imported brassieres, and therefore use of this term
to designate origin of imported brassieres does not satisfy the
marking requirements of 19 U.S.C. 1304. However, using the term
"Tailored Made in" to designate the country of origin of imported
brassieres would satisfy the marking requirements of 19 U.S.C.
1304. See, HQ 734096 (September 3, 1993) (use of the phrase
"Tailored-Made in" to designate the country of origin of imported
suits and suit-type jackets does satisfy the marking requirements
of 19 U.S.C. 1304).
Delay Effective Date
The submission as presented does not offer an adequate basis
for Customs to approve a delay, pursuant to 19 CFR 177.9, of the
effective date of this ruling. However, the importer is
encouraged to present any additional grounds to the Customs
district in Los Angeles in support of his request for a delay in
the effective date of this ruling.
HOLDING:
The retail boxes containing the imported brassieres are not
excepted from marking under 19 CFR 134.24(d)(3) and must be
individually marked with the country of origin.
Use of the terminology "Either the Philippines, Mexico,
Indonesia or Pakistan See Garment Label for Details" printed on
the retail box is acceptable. However, the marking must appear
on the same side of the retail package as the U.S. address
"Pelham, New York" and in lettering of comparable size in
satisfaction of the special marking requirements of 19 CFR
134.46.
Use of the phrase "Tailored in the Philippines" to designate
the country of origin of imported brassieres does not satisfy the
marking requirements of 19 U.S.C. 1304. However, the phrase
"Tailored Made in" is an acceptable marking to designate the
origin of the imported brassieres.
Sincerely,
John Durant, Director