CLA-2-19:OT:RR:NC:N2:228
Mr. Alberto Pettinato
Panna & Pomodoro S.L.
E1 Trillo 11, E1 Matorral
Puerto del Rosario
Canary Islands 35600
Spain
RE: The tariff classification and country of origin marking of pizza products from Spain
Dear Mr. Pettinato:
In your letter dated May 11, 2015, you requested a tariff classification and country of origin marking ruling. A marked sample was not submitted with your letter for review.
Ingredients information, descriptive literature, an image of one product, and the front pictures of the packaging boxes of two other products were provided with your letter. Pizzarella is said to be a ready-to-use pizza kit containing a partially baked pizza base described in the ruling N262947 and a bag of one serving of Mozzarella cheese packed in the same sealed packaging box. Users will add the cheese with the toppings of their choice to the base and finish baking the pizza. Pizza Base Integrale is said to be identical to the pizza base described in the ruling N262947. The only difference between the two products is that the Pizza Base Integrale is made with whole wheat flour instead of regular wheat flour. Calzone is made from a pizza dough folded in the typical shape. A topping is placed on the top of the shaped dough, then a tomato sauce is added to the topping. The Calzone is baked to approximately 70 percent, measuring approximately 30 centimeters (12 inches) in length, 18 centimeters (7 inches) in width, and weighing 480 grams (16.9 ounces). The product is packed by means of a Modified Atmosphere Packaging process. The ingredients of the pizza crust are wheat flour, water, vegetable oil, milk, animal fat, sugar, salt, yeast, and spices. The topping is composed of 25 grams of cooked ham “Jamon York,” 25 grams of dehydrated onions, and 100 grams of Mozzarella cheese. All three foregoing products will be sold on the wholesale market with the final destination at retail shops or food service providers (restaurants, hotels, and catering).
The applicable subheading for the Pizzarella, the Pizza Base Integrale, and the Calzone will be 1905.90.9060, Harmonized Tariff Schedule of the United States, HTSUS, which provides for bread, pastry cakes, biscuits and other bakers’ wares, whether or not containing cocoa ... other . . . other . . . pizza and quiche. The general rate of duty will be 4.5 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov/tata/hts/.
In your letter you also raised some questions on country of origin marking. Specifically, you stated that once you included “Distributed by Panna & Pomodoro Corp., 1400 Key Boulevard, Arlington, VA 22209” on the single package, you were in compliance with the Food and Drug Administration (FDA) regulations. On the package, there would also have the website address, where anyone could find any contact information needed. You asked whether you had to specify the country of origin on the single package, whether the country of origin was needed only on the boxes and/or pallets in which the products were imported, and whether “Product of the European Union” met the compliance requirements of U.S. Customs and Border Protection.
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.
Section 134.1(d), Customs Regulations (19 CFR 134.1(d)), defines the ultimate purchaser as “generally the last person in the U.S. who will receive the article in the form in which it was imported. ... It is not feasible to state who will be the ‘ultimate purchaser’ in every circumstance.” If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this case, when the three products are sold at retail shops in their imported form, the ultimate purchasers of the three products are the consumers who purchase the products at retail. When the three products are sold to food service providers (restaurants, hotels, and catering), the food service providers are the ultimate purchasers.
Pursuant to 19 U.S.C. §1304(a)(3)(D) and 19 CFR 134.32(d), an exception from individual marking is applicable where the marking of the container of an imported article will reasonably indicate the origin of the article. This exception is normally applied in cases where the imported article(s) is imported in a properly marked container and the ultimate purchaser in the U.S. will receive it in its original marked container. Accordingly, provided the port director is satisfied that the Pizzarella, the Pizza Base Integrale, and the Calzone will remain in their marked containers until they reach the ultimate purchasers, marking on the individual packaging of each product with the country of origin of its content will reasonably indicate the origin of the articles when sold to retail purchasers. Marking on the outermost boxes or pallets with the country of origin of their contents will be an acceptable country of origin marking for the products when sold to food service providers provided that the port director is satisfied that the ultimate purchasers (in this case, food service providers) will receive the articles in their original, unopened and properly marked containers.
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.
In section 134.1(k), Customs Regulations (19 C.F.R. 134.1(k)), “Conspicuous” means capable of being easily seen with normal handling of the article or container.
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.
Regarding the permissibility of the marking “Product of the European Union” on the containers, U.S. Customs and Border Protection does not accept marking merchandise as a product of the European Union because the European Union is not a country. Accordingly, the products should be marked with “Product of Spain,” “Made in Spain,” or words of similar meaning.
In addition, because a U.S. reference (Distributed by Panna & Pomodoro Corp., 1400 Key Boulevard, Arlington, VA 22209) appears on the imported products when they are imported into the U.S., it is necessary to consider the necessity for additional marking. Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases 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 locality in which the article was manufactured or produced, appears 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. In such a case, 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. The purpose of this requirement is to prevent the possibility of misleading or deceiving the ultimate purchaser of an article as to the actual origin of the imported good.
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 other than the actual country of origin appears.
In this case, we find that the words " Distributed by Panna & Pomodoro Corp., 1400 Key Boulevard, Arlington, VA 22209" on the packaging, without any reference on this panel to the actual country of origin, may mislead an ultimate purchaser of the products into believing that the country of origin of the product is a location in the U.S., thereby triggering the requirements of 19 CFR 134.46. Therefore, country of origin marking, preceded by the words "Made in" or "Product of" or other similar words, must appear in close proximity to these words denoting a U.S. geographical location. Such marking must be in at least the same size print as the words indicating the U.S. location.
For questions related to the particular marking requirements governed by the FDA regulations, please contact the agency directly.
Importations of the Calzone may be subject to regulations administered by the agencies indicated below. You may direct any requests for information regarding their applicable requirements to the following locations:
USDA
APHIS, VS, NCIE
Products Program
4700 River Road, Unit 40
Riverdale, MD 20737-1231
Tel: (301) 851-3300
Email: [email protected]
Food Safety & Inspection Service (FSIS)
U.S. Department of Agriculture
Washington, D.C. 20250-3700
Tel.: 1-888-MPHotline or (202) 720-6240
Email: [email protected]
Website: www.fsis.usda.gov
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 FDA. Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site ww.fda.gov/oc/bioterrorism/bioact.html.
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 Bruce N. Hadley, Jr. at [email protected].
Sincerely,
Gwenn Klein Kirschner
Director
National Commodity Specialist Division