OT:RR:NC:N:3:140
Ms. Errina Ramadhani Tendean
Intercosmetic Asia Pacific
2A, Jalan TSB 1, Taman Industri Sungai Buloh
Sungai Buloh, 47000
RE: The country of origin of Elianto Lumino White Intensive Essence and Elianto Lumino White Advanced Night Cream.
Dear Ms Tendean:
In your letter dated October 11, 2019, you requested a country of origin ruling determination on Elianto Lumino White Intensive Essence and Elianto Lumino White Advanced Night Cream,
on behalf of your client, MOIRA Cosmetics, Inc. Both products are indicated for use in skin care applications.
In your request letter you provide the following pertinent information:
The Elianto Lumino White Intensive Essence directions for use indicate “Two pumps of this is sufficient for the whole face. Pat gently onto the face.” It is indicated to soothe and protect the skin, and to increase and restore elasticity and suppleness to the skin. It is also stated to whiten the skin by lightening blemishes.
You indicated that it contains: aqua (water), butylene glycol, niacinamide, glycerin, phenoxyethanol, ethylhexylglycerin, panthenol, ppg-26-buteth-26, sodium hyaluronate, carbomer, peg-40 hydrogenated castor oil, parfum (fragrance), sodium hydroxide, chondrus crispus powder (carrageenan), limonene, linalool, biosaccharide gum-1, pancratium maritimum extract.
The Elianto Lumino White Advanced Night Cream directions for use indicate to “dot the night cream over face and neck, massage gently into the skin from the neck upwards. To be used after cleansing and toning details of the components.” It is stated to moisturize, nourish and brighten the skin while you sleep.
You indicated that it contains (in part): carprylic/capric triglyceride, niacinamide, glycerin, butylene glycol, sweet almond oil, shea butter, peppermint extact, and various other natural extracts, emulsifiers and other ingredients.
You provided the following description of the manufacturing process for both products:
The bulk is entirely produced in Switzerland and then exported to Malaysia. The filling process is done in Malaysia without any substantial changes in the bulk. The bulk is filled into “a respective container/packaging without changing the bulk nature.” After filling is done, then the finished goods are assembled for packing before shipping to customers.
You indicate that packaging materials are of Chinese origin. You also state that all filling and assembling occurrs in Malaysia. You state that no substantial changes, additions or alterations to the bulk occurs in Malaysia. You also indicate that according ASEAN regulatory, “the claim for this Finished goods will be Made in Switzerland.” You are seeking verification of the Country of Origin of the instant products for importation into the United States.
The "country of origin" is defined in 19 CFR 134.1(b) as "the country of manufacture, production, or growth of any article of foreign origin entering the United States. 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 the meaning of this part.
The courts have held that a substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98 (1940); National Hand Tool Corp. v. United States, 16 CIT 308 (1992), aff’d, 989 F. 2d 1201 (Fed. Cir. 1993); Anheuser Busch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982). However, if the manufacturing or combining process is merely a minor one that leaves the identity of the article intact, a substantial transformation has not occurred. Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026, 1029 (1982), aff’d, 702 F.2d 1022 (Fed. Cir. 1983). Substantial transformation determinations are based on the totality of the evidence. See Headquarters Ruling (HQ) W968434, date January 17, 2007, citing Ferrostaal Metals Corp. v. United States, 11 CIT 470, 478, 664 F. Supp. 535, 541 (1987).
It is our opinion that, as the bulk cosmetic for each product is not subtantially transformed in the filling or packaging processes in Malaysia, both products remain a product of Switzerland. We agree that the Country of Origin for both Elianto Lumino White Intensive Essence and Elianto Lumino White Advanced Night Cream under the manufacturing scenario presented above will be Switzerland for purposes of Country of Origin Marking.
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 Paul Hodgkiss at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division