MAR-2 RR:NC:SP:232 D82362
Mr. Nick Sabetti
New Wave Beverage Inc.
4500 Eastgate Parkway
Mississauga, Ontario
Canada L4W 3W6
RE: COUNTRY OF ORIGIN MARKING OF IMPORTED ARIZONA BEVERAGES;
ARTICLE 509
Dear Mr. Sabetti:
This is in response to your letter dated September 8, 1998
requesting a ruling on whether the proposed marking "Product of
Canada" is an acceptable country of origin marking for imported
beverages if other markings "Arizona" and "Manufactured for
Ferolito, Vultaggio & Sons, Lake Success, NY 11042 USA, Beverage
Marketing USA, Inc." appear on the article which are countries or
localities other than the actual country of origin of the
article. Marked samples were submitted with your letter for
review.
Samples of three products referred to as "Batch #3" were
submitted with your request. The products include Arizona Herbal
Tea, Arizona Pina Colada and Arizona Iced Tea with Lemon Flavor.
The marking "Manufactured for Ferolito, Vultaggio & Sons, Lake
Success, NY 11042 USA, Beverage Marketing USA, Inc." appears on
the back label of the bottles under the listing of the
ingredients.
The Herbal Tea is packaged in a glass bottle holding 20
ounces. The bottle has a beige background on which pictures of
various labels advertizing herbal seeds appear on three sides of
the container. The name "Arizona" is shown on the front and back
of the bottle and on the top of the cap. This item is marked
"Product of Canada" on the side of the bottle at the base of the
neck.
The Pina Colada is packaged in a glass bottle holding 20
ounces. The bottle is white with a figure wearing an Indian
headdress on the front label. The name "Arizona" appears on the
front and back of the bottle and on the top of the cap. This
item is marked "Product of Canada" on the left of the bottle at
the base of the neck.
Arizona Iced Tea with Lemon Flavor is packaged in a glass
bottle holding 16 ounces. The bottle is brown glass with a paper
label around the middle. The label is white with a geometric
design along the edges and on the center of the front. The name
"Arizona" is shown on the front, and on the side in a picture of
the product in a can. This item is marked "Product of Canada"
along the bottom edge on the side of the label.
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 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 134.45(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. 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 134.46, 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.
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.
Section 134.47, Customs Regulations (19 CFR 134.47),
provides that when the name of a place other than the country of
origin appears as part of a trademark or trade name or as part of
a souvenir marking, the name of the actual country of origin must
appear in close proximity to the place name "or in some other
conspicuous location". Whether the country of origin appears "in
close proximity" or in some other conspicuous place, the name of
the country of origin must be preceded by "Made in," "Product
of," or words of similar meaning. In other words, if the
question concerns a trademark, trade name or souvenir marking,
the country of origin marking need only meet the general standard
of conspicuousness.
For the purposes of 19 CFR 134.46, the marking of the
various products, does not satisfy the marking requirements of 19
U.S.C. 1304 and 19 CFR Part 134 and are not acceptable country of
origin markings for the imported beverages. The Herbal Tea, Pina
Colada and Iced Tea with Lemon Flavor must be marked "Product of
Canada" in close proximity to the U.S. address on the back label.
It is also noted that the marking on the Iced Tea with Lemon
Flavor along the bottom edge of the label is not conspicuous or
legible.
For the purposes of 19 CFR 134.47, if a trademark
registration or an application for a trademark registration has
been filed with the U.S. Patent and Trademark Office for the name
"Arizona", the country of origin need only appear in a
conspicuous location preceded by the words "Product of" of "Made
In". The country of origin marking which is in close proximity
to the U.S. address on the back label would satisfy this
requirement. However, if a trademark registration, or an
application for a trademark registration has not been filed for
the "Arizona" name, then the requirements of 19 CFR 134.46 are in
effect, and the products would also have to be marked "Product of
Canada" or "Made in Canada" on the front of the bottles.
This ruling is being issued under the provisions of Part 181
of the Customs Regulations (19 CFR Part 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 John
Maria at 212-466-5730.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division