CLA-2-33:OT:RR:NC:N2:240
Ms. Neely G. Pinnock
Mary Kay Inc.
16251 Dallas Pkwy.
Addison, TX 75001
RE: The tariff classification of Mary Kay facial cleansers from China, Brazil, Canada, and India
Dear Ms. Pinnock:
In your letter dated December 21, 2011, you requested a tariff classification ruling.
Five representative samples from the Mary Kay product line were submitted for review with your ruling request and will be retained by this office. The samples consisted of a 4.5 oz tube of Clarifying Cleanser for Acne-Prone Skin, a 4.5 oz tube of Clarifying Cleanser for Blemish-Prone Skin, a 100ml. tube of Foaming Cleanser MelaCEP™ Whitening System, a 4 oz. tube of Gentle Cleansing Cream Formula 1, and a 6.5 oz. bottle of Creamy Cleanser Formula 2.
The Clarifying Cleanser for Acne-Prone Skin and Clarifying Cleanser for Blemish-Prone Skin, containing salicylic acid, are anti-acne cleansers. The Foaming Cleanser MelaCEP™ Whitening System, the Gentle Cleansing Cream Formula 1, and the Creamy Cleanser Formula 2 are cleansers applied to the face and neck, and are removed with warm water or a wet cloth.
In your letter you suggest classification for the Clarifying Cleanser for Acne-Prone Skin and Clarifying Cleanser for Blemish-Prone Skin under subheading 3401.30.5000, HTSUS which provides for Organic surface-active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale, whether or not containing soap: Other. The Explanatory Notes to heading 3304 provide for “anti-acne preparations (other than soaps of heading 34.01) which are designed primarily to cleanse the skin and which do not contain sufficiently high levels of active ingredients to be regarded as having a primary therapeutic or prophylactic effect against acne”. The Clarifying Cleansers, containing salicylic acid, are anti-acne cleansers. The products are preparations for the care of the skin and properly classified under subheading 3304.99.5000, HTSUS.
The applicable subheading for the Clarifying Cleanser for Acne-Prone Skin and Clarifying Cleanser for Blemish-Prone Skin will be 3304.99.5000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations: Other: Other: Other: The rate of duty will be free.
The applicable subheading for the Foaming Cleanser MelaCEP™ Whitening System, the Gentle Cleansing Cream Formula 1, and the Creamy Cleanser Formula 2 will be 3401.30.5000, HTSUS, which provides for Organic surface-active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale, whether or not containing soap: Other. The rate of duty will be free.
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 World Wide Web at http://www.usitc.gov/tata/hts/.
This merchandise may be subject to the requirements of the Federal Food, Drug, and Cosmetic Act, which are administered by the U.S. Food and Drug Administration. You may contact them at 5600 Fishers Lane, Rockville, Maryland 20857, telephone number 1-888-463-6332, or by visiting their website at: www.fda.gov.
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.
Applying the Marking Rules set forth in section 304 of the Tariff Act of 1930, as amended, and section 134 of the Customs Regulations, we find that the prototype samples submitted with your ruling request were not properly marked with the country of origin. They must be legibly, conspicuously and permanently marked to show the appropriate country of origin.
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