CLA-2-21:S:N:N7:228 804679
Ms. Elena Ruiz
Spain 3000
6767 Collins Avenue Suite 1506
Miami Beach, FL 33141
RE: The tariff classification and country of origin marking of a
food product from Spain
Dear Ms. Ruiz:
In your letters dated October 14, 1994 and November 21,
1994, you requested a tariff classification and country of origin
marking ruling. Ingredients breakdowns and a description of the
manufacturing process accompanied your November letter. A sample
of the packaging and labelling was submitted with your October
correspondence.
The product is a frozen food called a "Spanish Tortilla,"
which you further describe as "basically a potato and egg
omelette." The article will be produced in four different sizes
- family, traditional, baguette, and burger - each composed of
the same ingredients, in almost identical proportions: 45
percent fried potatoes, 35 or 38 percent pasteurized eggs, 9 or
10 percent fried onions, 7 or 9 percent olive oil, and one
percent salt. The omelettes are prepared by frying sliced
potatoes and onions, combining them with the remaining
ingredients, frying on both sides in a circular-shaped pan,
freezing, and packing in polyethylene bags in sealed cartons or
boxes for non-retail purchasers.
The applicable subheading for this product will be
2106.90.6995, Harmonized Tariff Schedule of the United States
(HTS), which provides for food preparations not elsewhere
specified or included...other...other...frozen. The rate of duty
will be 10 percent ad valorem.
The sample package you have submitted is a printed,
corrugated cardboard box. The two larger panels provide the logo
and identify the size of omelette contained in the package. One
of the smaller panels bears a check-off list of the possible
tortilla varieties that may be in the package, and the other
small panel contains the logo, producer's name and address, net
weight, storage information, and lot number. All of the
information printed on the box is in Spanish. On one of the
larger panels, a prototype "Nutrition Facts" label is glued over
some of the printed information. With one exception, all of the
data on this label is in English. The exception is the
information following the words "manufactured by:" The
producer's name and the country of origin are written in Spanish.
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.
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 locality 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 other than
the actual country of origin appears.
The proposed marking for the package of imported "Spanish
tortillas" or omelettes, as described above, is not
conspicuously, legibly and permanently marked in satisfaction of
the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.
Other than the prototype label, there is no indication of the
country of origin on the printed box. In addition, "Espana," the
Spanish name for the country of origin, appearing on the
prototype label, is not acceptable for marking purposes.
"Spain," the English name, must be used. The label, as
presented, must either delete "Espana" and replace it with
"Spain," or add the word "Spain" immediately following "Espana,"
in the same size type. Alternately, the phrase "product of
Spain" or "made in Spain" may be added to the label, in close
proximity to, and in the same size type as the "distributed by"
line.
This ruling is being issued under the provisions of Section
177 of the Customs Regulations (19 C.F.R. 177).
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.
Sincerely,
Jean F. Maguire
Area Director
New York Seaport