CLA-2-21:OT:RR:NC:N2:228
Mr. Brian J. Wilding
National Health Products Directorate
Unit 6 – 1099 Wilkes Avenue
Winnipeg, Canada, R3P 2S2
RE: The tariff classification and country of origin marking of a dietary supplement from Canada, Article 509
Dear Mr. Wilding:
In your letter dated February 6, 2012 you requested a tariff classification and country of origin ruling on a dietary supplement from Canada.
A list of ingredients, sample and manufacturing flow process were submitted with your letter. The sample was examined and disposed of. The product, Abrexin™, is a human dietary supplement in tablet form. Each tablet is said to contain 300 mg lactoferrin, country of origin the United States; 5 mg BioPerine black pepper extract, country of origin India; and an unspecified amount of silicon dioxide, microcrystalline cellulose, croscarmellose sodium, dicalcium phosphate, stearic acid, magnesium stearate, sodium alginate, shellac, sucrose ester, sorbitol, dextrin, and pepper extract, country of origin the United States.
In Canada the ingredients are blended, coated, blister packaged ten tablets each, placed in cartons (of three blister packs/30 tablets) marked “Country of Origin Canada” and sealed.
The top of the carton has the lot number and expiration date, and the bottom has the UPC code. The front panel has the name of the product “Abrexin™” followed by other information about the product including the number of tablets, that it is a dietary supplement, free of caffeine & stimulant and safely activates thermogenesis. On the back panel supplement facts are shown plus ingredients, suggested use by adults, health, allergen, safety and security warnings, an FDA disclaimer, a QR code for a smartphone, and a “Product of Canada” statement with the name of the distributor, its toll-free phone number, locations in Canada and product website. On the side panels are statements about the safety and effectiveness, and unique action and absorption of the product.
The applicable subheading for the Abrexin™ 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.
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/.
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.
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.
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.
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.
The proposed marking of imported Abrexin™ , as described above, is conspicuously, legibly, indelibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is an acceptable country of origin marking for the imported dietary supplement.
Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the imported Abrexin™ tablets are goods of Canada for marking purposes.
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