MAR-2 OT:RR:NC:N2:228
Mr. Gary M. Gnirss
Bulcan Foodbev Consultants Inc.
936081 Airport Road
Mansfield, Ontario L0N 1M0
Canada
RE: THE COUNTRY OF ORIGIN AND COUNTRY OF ORIGIN MARKING OF BEEF BROTH; ARTICLE 509
Dear Mr. Gnirss:
This is in response to your letters dated February 8, 2012 and July 19, 2012, on behalf of Protenergy Natural Foods Corporation, requesting a country of origin and country of origin marking ruling on beef broth. Mocked-up samples and an ingredients breakdown were submitted with your July letter. The samples were examined and disposed of.
The subject beef broth is a ready-to-serve, brown-colored liquid in Tetra Brik Aseptic cartons, and requires to be heated up in a stove top, microwave or oven only without adding water. The beef broth is composed of water, Proliant B1301 (beef stock), beef extract, salt, yeast extracts, dextrose, beef flavors, caramel, onion juice concentrate, and roasted onion flavor. The product will be produced in the facilities in the United States and Canada. When made in the United States, all ingredients are sourced from the United States origin. When manufactured in Canada, the water, Proliant B1301, yeast extracts will be products of Canada. The beef extract, salt, dextrose, beef flavors, caramel and roasted onion flavor will be of the United States origin. The onion juice concentrate will be a product of France. The product made in the Canadian facility will be shipped to the United States for sales, and the United States-made product will be sold domestically.
The tetra rectangular prism-shaped carton consists of six panels. The front panel has the brand name “my essentials ™” together with a shining sun as a whole brand, minimal nutrition information per cup next to the brand aligned at the top, the product name “beef broth” in approximately half inch lower case letters, the words “ready to serve”, the “no added msg” and “fat free” declarations, at the lower part of the panel a photo of a measuring cup filled with the beef broth, and the net weight information and the words “serving suggestion” at the bottom. On the left side panel, the brand and product name are repeated. On the right side panel, a rectangular section length-wise contains a “Nutrition Facts” box, to the right of it ingredients information, and the distributor and its contact information printed as follows: “DISTRIBUTED BY: DZA BRANDs, LLC[,] 2110 Executive Drive[,] Salisbury, NC 28147[.] For product questions or concerns, contact us at 1-866-322-2439.” On the final version of the package, a “See top panel for country of origin” statement will be printed immediately below the contact information in at least a comparable size, and followed by a money back and satisfaction guarantee logo below it. The back panel has the brand, the product name, recycling information, a UPC bar code, serving instructions, and some care in handling information. The bottom panel contains the carton manufacturing name and website address. The top panel contains the phrase “best before:,” the brand, and the product name. The actual best before information and the country of origin “PRODUCT OF CANADA” or “PRODUCT OF USA” will be printed using an inkjet process below the words “best before:” in a conspicuous manner on the top of the carton. Part of such printed contents presented on two of six mock-up samples was found to be blurred upon opening the outer package of the six samples. The country of origin marking can be easily rubbed out by hand.
The marking statute, section 304, 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 U.S. 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 U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.
As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.
With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is 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 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. 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 or locality or other than the actual country of origin appears.
The country of origin marking requirements for a “good of a NAFTA country” are also determined in accordance with Annex 311 of the North American Free Trade Agreement (“NAFTA”), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.
Section 134.1(b) of the regulations, defines "country of origin" as:
the country of manufacture, production, or growth of any article of foreign origin entering the U.S. 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 this Part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. (Emphasis added).
Section 134.1(j) of the regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.
Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.
Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the imported beef broth is a good of Canada for marking purposes. When the beef broth is made in the United States, the country of origin is the United States. If a good is determined to be an article of U.S. origin, it is not subject to the country of origin marking requirements of 19 U.S.C. §1304. 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, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of proposed markings indicating that an article is made in the U.S.
The submitted samples do not satisfy the requirements of 19 CFR 134 and 19 U.S.C. 1304 because the country of origin marking can be easily erased and does not appear to survive normal distribution and store handling. The proposed marking methods will not be an acceptable country of origin marking for the beef broth. However, the proposed packaging, if using an indelible inkjet process to print the country of origin statement on the top of the carton as legibly, indelibly, and permanently as the nature of the carton will permit, will satisfy the general marking requirements of 19 U.S.C. 1304 and the special marking requirements of 19 CFR 134.46.
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181).
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 Bruce N. Hadley, Jr. at (646) 733-3029.
Sincerely,
Thomas J. Russo
Director
National Commodity Specialist Division