CLA-2-21:OT:RR:NC:N2:228
Mr. Amit Solomon
Farrow International Trade Consulting
5397 Eglinton Avenue West, Suite 220
Etobicoke, Ontario M9C 5K6
Canada
RE: The tariff classification, country of origin, country of origin marking, and status under the North American Free Trade Agreement (NAFTA) of a food supplement from Canada; Article 509
Dear Mr. Solomon:
In your letter dated August 10, 2012, you requested a ruling on the status of a food supplement from Canada under the NAFTA on behalf of Jamieson Laboratories Inc., Ontario, Canada.
Ingredient information, a description of the manufacturing process, a “US Label Submission Copy,” and additional information for the EPAX 4020TG ingredient were submitted with your letter. Omega 3 Heart, also named Omega with Olive Oil (FG #4795), is a dietary supplement for human consumption composed of soft gelatin capsules. The stated ingredients for this product are fish oil (EPAX 4020 TG) derived from anchovy and sardine, yellow beeswax, lecithin, Oleaselect olive polyphenolic extract, water, caramel color powder, titanium dioxide, gelatin, and glycerine.
The lecithin, yellow beeswax, and caramel color powder are products of the United States. The gelatin is either produced in the United States or Japan. The glycerin is a product of Malaysia. The titanium dioxide and olive polyphenolic extract are sourced from Italy. The fish oil (EPAX 4020 TG) is a product of Norway. The water is assumed to be a product of Canada. In Canada, the ingredients are blended, encapsulated, and packaged for retail sale.
The “US LABEL SUBMISSION COPY” contains the product code, the product name, the principle display panel, the information/direction panel, and a “Supplement Facts” box. On the top of the page, there are the brand name “Jamieson,” a shape of rainbow atop the name, and the words “NATURAL SOURCES Since 1922” below the name. The principle display panel includes the product name, the capsule counts, and the allergen warning statement. The information/direction panel bears the health benefit declaration “Helps to support cardiovascular health.*” along with a FDA disclaimer “This [sic] statements have not been evaluated by the Food and Drug Administration. This product is not intended to treat, cure or prevent any disease,” use directions, storage suggestions, a direction to see the supplement facts box, the ingredient list, the caution and warning statements, the lot number, the expiration date, the manufacturer information containing “Manufactured by/Fabriqué par: Jamieson Laboratories[,] Windsor, Toronto[,] Canada N8W 5B5[,] www.jamiesonvitamins.com”, damage protection information, the not artificial claims, the updated date information, and a “Supplement Facts” box.
In your letter, you suggested the product may fall in subheading 1504.20.6040, Harmonized Tariff Schedule of the United States (HTSUS), the provision for fats and oils of fish, not chemically modified. Based on the product’s ingredient composition, it will be classified elsewhere.
The applicable subheading for the Omega 3 Heart will be 2106.90.9998, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or included … other … other … other. The rate of duty will be 6.4 percent ad valorem.
General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that
For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--
(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or
(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--
(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; . . . .
Based on the facts provided, the product described above qualifies for NAFTA preferential treatment, because it meets the requirements of HTSUS General Note 12(b)(ii)(A) and 12(t)/21.14. The product will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.
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.
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 fish oil capsules are products of Canada for marking purposes.
The proposed label, as described above, if attached to the retail container permanently and the manufacturer information in the label is printed in a conspicuous place as legibly, indelibly and permanently as the nature of the label will permit, will satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.
This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 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