CLA-2 RR:CTF:TCM H248279 HvB
Philip Mason
Traders Custom Brokerage Ltd.
2359 Royal Windsor Drive, Unit 13
Mississauga, ON
L5J 4S9
RE: Country of Origin Marking Requirements for aerosol cans filled with cleaners, air refreshers or paint; Disjunctive Marking
Dear Mr. Mason:
This is in response to your correspondence dated September 13, 2013, to U.S. Customs and Border Protection (CBP), sent on behalf of K-G Division of K-G Spray Pak Inc. (the importer), in which you requested a binding ruling pertaining to the country of origin marking requirements for aerosol cleaner cans that are filled for retail sale with air refresher, paint, or janitorial/sanitation cleaners.
In your letter, you propose to mark the side of the cans “Made in Canada or USA – See bottom of can for actual origin” and the bottom of the can “Made in Canada” or “Made in USA” as appropriate. You also submitted two photographs which show the proposed markings.
FACTS:
The subject merchandise consists of janitorial and sanitation cleaners, air refreshners or paint mixed and sealed in 7-16 ounce steel cans. The products are imported from Canada in cartons which are marked “MADE IN CANADA.” The cans are marked “Made in Canada” on the bottom of the can. After importation into the United States, a consignee labels the can according to its customer’s requirements. The proposed label contains a U.S. distributor’s address.
The identical process of filling blank aerosol cans with cleaners also occurs in the United States. These cans are marked with the words “Made in USA” on the bottom of the can and are sent to the same consignee labeler. Hence, the labeler owns identical merchandise labeled “See bottom of can for origin” and either “Made in USA” or “Made in Canada” is already stamped on the bottom of the can at the time the cans were filled. The proposed label is to save the cost of creating two different labels and controlling the inventory such that cans are applied with the correct label.
You submitted two photographs of the proposed labels which depict the proposed backside of the can and the proposed bottom side of the can for both the Canada and USA products. The first photograph shows the backside of the can. At the top of the label, there are directions and a text box containing several paragraphs of product warnings, which takes up the majority of space on the label. Underneath this text box is an asterisked statement disclaiming affiliation between the product and brand label manufacturers. The statement “See Country of Origin on bottom of can” is displayed underneath the disclaimer in the same size font. The distributor’s name and Missouri address is underneath but the name and the distributor is in contrasting large, blue font. The Missouri address is in font slightly larger than the marking statement. Adjacent to the U.S. address is various symbols, e.g., copyright information, recycling symbol, and “no CFCs” symbol.
The second photograph shows the bottom sides of two cans. One is printed with the “Made in Canada” and the other is printed “Made in USA”. A production code is also printed adjacent to the respective country of origin marking on each of the bottom sides.
ISSUE:
What are the country of origin marking requirements for the subject aerosol cans?
LAW AND ANALYSIS:
As an initial matter, whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580, on the propriety of proposed markings indicating that an article is made in the U.S. Therefore, this ruling does not address the applicability as to whether the marking of “Made in the USA.” is properly shown for the aerosol cans.
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 its 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. 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. Friedlander & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940). The country of origin 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. See 19 CFR §134.41(b), CBP Regulations, and Headquarters Ruling (HQ) 562832, dated October 23, 2003.
When a foreign import is marked with both a domestic U.S. address and the foreign country of origin, the special marking rules of 19 CFR §134.46, CBP Regulations are triggered. Section 134.46 provides as follows:
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 location 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 appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, 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.
(Emphasis added).
In this instance, 19 CFR 134.46 is triggered due to the presence of the Missouri address on the can.
The marking rules generally prohibit disjunctive marking statements such as “Made in Canada or USA” or “See bottom of can for actual country of origin” because such statements do not actually indicate the actual country of origin as required by 19 USC 1304. See Headquarters Ruling Letter (HQ) 561519, dated March 30, 2000 and HQ 561397, dated August 5, 1999. As a rare exception to the rule prohibiting disjunctive marking, you may mark the labels “Made in USA or Canada—see bottom of can for actual country of origin” in accordance with HQ 561519, dated March 30, 2000, to which you cite.
However, your sample labels do not meet this exception, which we have granted under narrow circumstances. You submit that your proposed label is “essentially the same thing” as the facts presented in HQ 561519, which also concerned aerosol cans. In HQ 561519, we granted an exception because the label directed the ultimate purchaser to view the country of origin prior to purchasing the aerosol cans under consideration in that ruling. And, as we pointed out the strict requirements of 19 CFR 134.46, e.g., typeface, font, placement and “close proximity” factors, were met.
Furthermore, the stringencies of § 134.46 regarding legibility, permanence, and close proximity, i.e., type face, size font, placement must be met. See HQ 558026, dated May 1, 1995. Your proposed labels run afoul of 19 CFR 134.46 because the location, design, and phrasing of “See Country of Origin on bottom of can” is not conspicuous. Specifically, the font of the marking is smaller in relation to the distributor’s U.S. address, which is in larger, bolded text. We also note that the distributor’s U.S. address is offset from the other statements and warning, including your proposed marking statement. The U.S. distributor’s address is placed prominently and is not immediately adjacent to the marking statement.
In HQ H007883, dated April 3, 2007, we allowed a disjunctive marking on canned cat food because the marking statement “See bottom of can for country of origin” was in bolded text and identical font as the distributor’s California address. Significantly, we cited to HQ 708994, dated April 24, 1978, which states that “where a U.S. domestic address is immediately followed by specific instructions directing the ultimate purchaser to inspect the article, and where the country of origin statement is preceded by the phrase, “Made in, Product of,” or similar words, § 134.46 is potentially satisfied.” On the instant label, this is not the case. Unlike the instant cans, the fonts of the U.S. address and marking statement in H007883 were in identical font. The instant label’s U.S. address is in larger font and is featured more prominently than the marking statement, which creates the likelihood that the ultimate purchaser will be confused or deceived as the product’s actual country of origin. Furthermore, the marking statement is not adjacent to the U.S. address. Therefore, the additional labeling statement is not conspicuous and does not allow the ultimate purchase to view the actual country of origin prior to purchase. Hence, based on the facts presented, we find that the proposed marking is not acceptable under 19 U.S.C. § 1304 and the special marking rule under 19 CFR § 134.46.
HOLDING:
Based on the facts of this case, we find that proposed marking methods does not satisfy the general marking requirements of 19 U.S.C. §1304 and the special marking requirements of 19 CFR §134.46. The ultimate purchaser is likely to be misled or deceived as to the actual country of origin of the article because the disjunctive marking statement is in a smaller, less prominent font than the U.S. address and because it is not adjacent to the U.S. address.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff Classification and Marking Branch