HQ 0732332 - Country of origin marking requirements for imported tampons - United States International Trade Commision Rulings

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HQ 732332
June 14, 1989

MAR-2-05 CO:R:C:V 732332 KG

CATEGORY: MARKING

Mr. Lewis Stein
Office of General Counsel
Johnson & Johnson, Inc.
One Johnson & Johnson Plaza
New Brunswick, N.J. 08933-7002

RE: Country of origin marking requirements for imported tampons

Dear Mr. Stein:

This is in response to your letter of April 11, 1989, requesting an exception from country of origin marking requirements for tampons to be imported from Austria.

FACTS:

Due to a back order problem, the Personal Products Company, a wholly owned subsidiary of Johnson & Johnson ("the importer") plans to import tampons manufactured in Austria which are identical to the product it makes in the U.S. The tampons manufactured abroad will either be imported in bulk or prepackaged in small boxes with eight tampons in each box. If tampons are imported in bulk, they will be packaged into the boxes in the U.S.

On the sample submitted, the box is overwrapped in printed transparent cellophane. Below the printed material, a sticker is attached with the legend "Made in Austria" in tiny print less than 1/16th of an inch.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or 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. Congressional intent in enacting 19 U.S.C. 1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940).

Part 134, Customs Regulations (19 CFR 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Pursuant to 19 U.S.C. 1304(a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR 134.32(d)), Customs excepts from individual marking requirements imported articles for which the marking of the containers will reasonably indicate the origin of the articles.

The exception set forth in 19 U.S.C. 1304(a)(3)(D) and 19 CFR 134.32(d) applies in cases where the article is imported in a properly marked container and Customs officials at the port of entry are satisfied that the ultimate purchaser will receive it in its original unopened marked container. See HQ 731768 (December 8, 1988). In this case, the imported article is never sold on an individual basis and it is clear that the ultimate purchaser would receive the tampons in the sealed box.

However, the container must be properly marked. In this instance, the marking is in very small print which is difficult to read and not conspicuous as required by both 19 U.S.C. 1304 and section 134.41, Customs Regulations (19 CFR 134.41), which requires that whatever method and manner of marking is used, the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Further, on the sample submitted, the sticker on the overwrapping is not firmly attached. It is required by 19 CFR 134.41 that the degree of permanency of the marking should be at least sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article or its container until it reaches the ultimate purchaser unless it is deliberately removed. Therefore, the imported article will be exempted from individual country of origin marking requirements only if the size of the marking is printed in a size large enough to read without strain and if the sticker is firmly attached to the box.

HOLDING:

Tampons that are packaged and sold in sealed boxes containing a sticker with the legend "Made in Austria" placed below the U.S. address of the importer are excepted from individual country of origin marking pursuant to 19 U.S.C. 1304 (a)(3)(D) and 19 CFR 134.32(d) if the size of the marking is printed in a size large enough to read without strain and if the sticker is firmly attached to the box.

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs

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