MAR-2 OT:RR:NC:2:240
Ms. Sandra Liss Friedman
Barnes, Richardson, & Colburn
475 Park Avenue South
New York, NY 10016
RE: THE COUNTRY OF ORIGIN MARKING OF FRAGRANCES IMPORTED FROM TAIWAN
Dear Ms. Friedman:
In your letter dated May 30, 2012, you requested a country of origin marking of perfume on behalf of your client First American Brands. Samples of the items were submitted with your letter for review and are being returned as requested.
U.S. origin perfume bases are sent to Taiwan for dilution with alcohol and water. The blending process will produce eau de parfums, colognes, and eau de toilettes dependant upon the amount of perfume oil base used in the production. The blending process decreases the viscosity of the fragrances so that they may be applied via a spray mechanism. The country of origin of the alcohol and each fragrance is Taiwan. No other ingredients will be added to the mixture during processing in Taiwan. You have indicated that the blended fragrances will be allowed to rest for one week to ensure that the concentration of the dilution is uniform throughout the mixture. You state that no chemical changes have occurred during the mixing and resting processes. The products will be bottled and packaged for retail sale.
You suggest that the articles do not require origin marking under the Customs laws because they are U.S.-origin products that have not been substantially transformed in Taiwan. A similar issue was addressed in Headquarters ruling HQ H175959.
Section 304 of the 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 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. Friedlaender & Co., 27 C.C.P.A. 297, 302, C.A.D. 104 (1940).
Part 134, U.S. Customs and Border Protection Regulations (19 C.F.R. §134) implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. Section 134.1(b), CBP Regulations (19 C.F.R. § 134.1(b)),defines “country of origin” as “the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the ‘country of origin’ within the meaning of [the marking laws and regulations].” For country of origin marking purposes, a substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. However, a substantial transformation will not result from a minor manufacturing or combing process that leaves the identity of the article intact. See United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 (1940).
We find that the processing of perfume oil bases in Taiwan into the finished fragrances does not constitute a substantial transformation for country of origin marking purposes under 19 U.S.C. § 1304. While the finished fragrances are made suitable for spraying by diluting perfume oil bases, they retain the same chemical identity and character as the precursor perfume oil bases. In this case, mere changes in concentration and viscosity do not result in a substantial transformation, despite the fact that the processing operations in Taiwan make the fragrances suitable for human application. Therefore, for the purposes of 19 U.S.C. § 1304, the country of origin of perfume oil bases, which determines the essential character of the fragrances, remains the United States.
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). In regard to the acceptability of your proposed markings on the printed gift box for the toiletry items, we suggest that you contact the Federal Trade Commission, Division of Enforcement, 6th and Pennsylvania Avenue, NW, Washington, D.C. 20508, as to whether the proposed markings satisfy their requirements.
Perfumery, cosmetic, and toiletry products are subject to the requirements of the Food, Drug and Cosmetic Act, and the Fair Packaging and Labeling Act (FPLA), which are administered by the U.S. Food and Drug Administration. Questions regarding FDA requirements may be addressed to the U.S. Food and Drug Administration, Office of Cosmetics and Colors, 5100 Paint Branch Parkway, College Park, MD 20740-3835, telephone number (301) 436-1130, or by visiting their website at: www.fda.gov.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Stephanie Joseph (646) 733-3268.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division