MAR-2-05 CO:R:C:V 735261 AT
Paul A. Winick, Esq.
Thelen, Marrin, Johnson & Bridges
330 Madison Avenue
New York, New York 10017-5001
RE: Country of origin marking of imported sunglass cases sold
individually or repacked with sunglasses in the U.S.;
repackaging; 19 CFR 134.32(d); 19 CFR 134.34
Dear Mr. Winick:
This is in response to your letters dated June 22, November
10 and November 15, 1993, on behalf of Bausch & Lomb,
Incorporated ("B&L") requesting a ruling on the country of origin
marking of certain imported sunglass cases from Mexico. A sample
plastic bag and cardboard carton indicating the proposed method
of marking were submitted with your request.
FACTS:
You state that B&L imports from Mexico sunglass cases to be
sold individually or repacked in the U.S. with B&L sunglasses for
sale at retail. Presently, the cases are imported into the U.S.
with an adhesive sticker bearing the printed legend "Case Mexico"
affixed to the inside of the case. B&L contemplates another
method of country of origin marking and requests a ruling as to
whether this proposed method will satisfy the country of origin
marking requirements. B&L proposes to import the sunglass cases
from Mexico in the following manner:
Importation
All the sunglass cases will be imported sealed inside clear
polyethylene-type heat sealed plastic bags. However, instead of
the country of origin sticker currently in use, the polyethylene
bags will be indelibly printed with the legend "Case Mexico".
All cases packaged and marked in this manner will be imported
packed inside cardboard master shipping cartons. A marked sample
bag was submitted for our review. The bag is conspicuously,
permanently and legibly marked with the words "Made in China"
(three times) in large black lettering approximately 14 point (a
point is a unit of measurement equal to 0.01384 inch or nearly
1/72 inch). You state that although the sample is marked "Made
in China", all the plastic bags containing the imported sunglass
cases will be marked "Case Mexico" in the same manner and type
size.
Manner Of Use In The Unites States
Once in the U.S. the empty sunglass cases will be used in
one of two possible ways:
1. B&L may sell or give empty sunglass cases (not
containing sunglass products) to its customers
(primarily wholesalers and retailers) for further
distribution. Most often the empty cases are offered
as replacements to end-consumers. These empty cases
will be distributed by B&L, inside the original heat-
sealed polyethylene type bags marked with the legend
"Case Mexico" in which they were imported. When empty
cases are shipped, no packaging outside the plastic bag
will be used.
2. B&L will fill the sunglass cases (99.75% of all
imported cases will be used in this fashion by B&L)
in the U.S. with domestically assembled B&L Ray-Ban
Classic Metal sunglass products. At the B&L U.S.
factory where the sunglasses are assembled, the empty
cases will be removed from the heat-sealed plastic bags
in which they were imported and filled with the Classic
Metals sunglass product and related product literature.
The sunglass cases then containing the U.S. sunglass
product, will be individually re-packaged inside a
cardboard retail carton that will bear the legend
"Case Mexico". You represent that the cardboard
carton accompanies the sunglass-filled case
throughout the chain of resale and distribution
into the hands of the retail purchaser. A marked
sample carton was submitted for our review.
The sample carton is marked with the phrase "Sunglasses Made in
U.S.A." on the top panel in black lettering approximately 4
point. The phrase "Case Made in Mexico" appears directly below
in black lettering approximately 4 point. Other information such
as, the style, color, lot number and bar code appear on the top
panel. The back panel of the carton near the right hand side is
marked with the B&L address "Rochester, New York 14692 U.S.A." in
white lettering approximately 4 point. The words "Case Made in
Mexico" appears directly below in white lettering approximately 4
point. The history of the company appears on the back panel
along with the company's name "Bausch & Lomb". The trademark
"Ray-Ban" is printed on all sides of the carton except the top
panel.
ISSUE:
Whether it is acceptable to mark the plastic bag in which
the sunglass cases are imported or cardboard carton in which the
sunglass cases are repackaged with the country of origin in lieu
of marking the article itself?
Whether the country of origin markings on the sample plastic
bag and cardboard carton marked in the manner described above
satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR
Part 134?
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". Section 134.1(d)(4), Customs Regulations
(19 CFR 134.1(d)(4)), provides that if an article is imported and
distributed as a gift the recipient is the ultimate purchaser.
Therefore, in this case, the ultimate purchaser of the sunglass
cases is either the consumer who purchases the sunglass case
empty or filled with B&L sunglass products or who receives the
case free of charge as a replacement.
Are The Sunglass Cases Excepted From Marking?
An article is excepted from marking under 19 U.S.C. 1304
(a)(3)(D) and section 134.32(d), Customs regulations (19 CFR
134.32(d)), if the marking of a container of such article will
reasonably indicate the origin of such article.
The sunglass cases are all imported in sealed polyethylene
bags marked "Case Mexico". Accordingly, if Customs is satisfied
that the article will remain in its container until it reaches
the ultimate purchaser and if the ultimate purchaser can tell the
country of origin of the sunglass case by viewing the plastic bag
in which it is packaged, the individual sunglass cases would be
excepted from marking under this provision.
However, since almost all (99.75%) of the sunglass cases
will be repacked by B&L into cardboard cartons with sunglass
products in the U.S., it is for the district director of Customs
to decide pursuant to 19 CFR 134.34 whether the subject articles
are excepted from individual marking under 19 CFR 134.32(d). In
this regard section 134.34, Customs Regulations (19 CFR 134.34),
provides that an exception may be authorized in the discretion of
the district director under 19 CFR 134.32(d) for imported
articles which are to be repacked after release from Customs
custody under the following conditions: (1) The containers in
which the articles are repacked will indicate the origin of the
articles to an ultimate purchaser in the U.S.; (2) The importer
arranges for supervision of the marking of the containers by
Customs officers at the importer's expense or secures such
verification, as may be necessary by certification and the
submission of a sample or otherwise, of the marking prior to the
liquidation of the entry.
In this case, assuming that the district director is
satisfied that the imported sunglass cases will be repacked in
the manner set forth below, and that the other conditions set
forth in 19 CFR 134.34 are met, the district director may
authorize an exception under 19 CFR 134.32(d), in which case
marking of the sunglass cases themselves would not be required.
The Marking Of The Plastic Bag Containing Empty Sunglass Cases
Not Repacked in the U.S.
19 U.S.C. 1304 and 19 CFR Part 134, provide 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. In this case, the plastic bags in which the empty
sunglass cases are imported will be printed with the words "Case
Mexico" in large black lettering (14 point). This origin marking
we find to be conspicuous, legible and permanent. Accordingly,
the country of origin marking on the plastic bags satisfies the
requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is
acceptable for those sunglass cases sold or distributed free of
charge in the plastic bag.
The Marking On the Repacked Article
In determining whether the marking is acceptable, Customs
will take into account the presence of words or symbols on an
article which may mislead the ultimate purchaser as to the
country of origin. Consequently, if the words "United States,"
or "America," the letters "U.S.A.," any variation of such words
or letters, or the name of any city or locality other than the
country of origin appear on the imported article, special marking
requirements are triggered. See, 19 CFR 134.46
The special marking requirements set forth in section 134.46
are triggered by the presence of the words "U.S.A." printed on
the top panel of the carton and "Rochester, New York, U.S.A"
printed on the back panel of the carton. Accordingly, the actual
country of origin of the sunglass case must appear "in close
proximity" to the U.S. reference and in lettering of at least a
comparable size. Such is the case here. The words "Case Made in
Mexico" which appear directly below the U.S. reference "U.S.A" on
the top panel and "Rochester, New York, U.S.A." on the back panel
are in close proximity and in lettering of at least a comparable
size.
The country of origin marking must also be legible and
conspicuous. These requirements are satisfied if it is easy to
find and easy to read. See, 19 CFR 134.41. The origin marking
"Cases Made in Mexico" which appears on the top and back panel of
the carton is legibly and conspicuously located on the carton.
With respect to the top panel of the carton, other consumer
information such as, the style and color appears on the same
panel as the origin marking. Also, the history of the B&L
product is located on the back panel where another country of
origin marking is located. Both origin markings appear in
contrasting lettering and are easy to find and easy to read as
required by 19 CFR 134.41. Based on these considerations, we
find that the marking "Case Made in Mexico" printed on the top
and back panel of the submitted sample carton in which the
imported sunglass cases are repacked, satisfies the marking
requirements of 19 CFR Part 134 and is an acceptable country of
origin marking for the imported sunglass cases.
With respect to the marking "Sunglasses Made in U.S.A."
printed on the top panel of the sample carton, we advise you to
contact the Federal Trade Commission, Division of Enforcement,
6th & Pennsylvania Avenue, NW, Washington, D.C. 20508 before your
client B&L undertakes to mark the cartons in this fashion, since
use of the phrase "Made in U.S.A." is under that agency's
jurisdiction.
HOLDING
Assuming the district director pursuant to 19 CFR 134.32(d)
and 19 CFR 134.34 authorizes an exception from marking the
sunglass cases, marking the plastic bags and the cardboard
cartons in the manner described above will satisfy the marking
requirements of 19 U.S.C. 1304 and 19 CFR Part 134.
Sincerely,
John Durant, Director
Commercial Rulings Division