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HQ 735085

June 4, 1993

MAR-2-05 CO:R:C:V 735085 RC/NL


Mr. Robert F. Ruyak
Howrey & Simon
1299 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2402

RE: Country of Origin Marking of Imported Frozen Produce; Substantial Transformation; Conspicuous Location; 19 CFR 134.47; 19 CFR 134.46.

Dear Mr. Ruyak:

This is in response to your letter of April 5, 1993, on behalf of Pillsbury, requesting a ruling on the country of origin marking requirements for a line of products containing both domestic and foreign frozen vegetables. The request was prompted by a letter to you from this office dated March 2, 1993, in which it was stated that the marking of the products was in apparent violation of Customs requirements.


Pillsbury markets a line of frozen vegetable products under its "Green Giant" "American Mixtures" brand. The five products in the "American Mixtures" line which contain foreign as well as domestically grown produce are the subject of this ruling. Each of the five products consists of a different vegetable combination sold under one of the following recipe names:

(1) Manhattan Style tm;
(2) San Francisco Style tm;
(3) California Style tm;
(4) Seattle Style tm;
(5) Heartland Style tm.

For purposes of this ruling, we have examined principally the sample packaging for the "San Francisco Style" "American Mixtures" recipe.

Broccoli and cauliflower are imported in bulk from Green Giant's facility in Irapuato, Mexico, already cut and frozen. Water chestnuts and peas are imported from China and Guatemala, respectively, raw in bulk. They are cleaned, cut, peeled and frozen domestically. Carrots, yellow peppers, and asparagus are grown domestically and sized, cleaned, peeled or trimmed, cut and frozen at domestic plants. Green Giant combines the foreign and domestic bulk vegetables in the U.S. with unspecified non- vegetable ingredients from an unknown source and packages them in 16 oz. polyurethane bags for retail sale under the five names indicated above as part of the "American Mixtures" line. Beyond bagging, there is no processing of the combined frozen vegetables, such as cooking or adding sauces.

In total, we have counted at least 20 references to America or a U.S. location on the "San Francisco Style" product packaging. Most prominently, each bag bears the words "American Mixtures" in approximately 63 points printed across the top front side. (A point is a unit of type measurement equal to 0.01384 inch or nearly 1/72 inch, and all type sizes are multiples of this unit.) These words are followed by a registered trademark symbol, the letter "R" in a circle. The same words and trademark appear again near the bottom of the front side, in approximately 36 points. Under the words "American Mixtures", depending upon the contents, the names "MANHATTAN" or "SAN FRANCISCO" or "CALIFORNIA" or "SEATTLE" or "HEARTLAND" appear in approximately 27 points, followed by the word "STYLE" in approximately 9 points. These location references appear twice on the front side of the packaging, both in 27 points. The second location is adjacent to a second reference to "American Mixtures".

On the back side of the package, the name "San Francisco" appears in lettering of approximately 18 points in one location and approximately 6 points in four locations. The name "American Mixtures" appears again on the back side in lettering of approximately 6 points in three additional locations. A country of origin marking stating "PRODUCT OF MEXICO" appears also on the back side in lettering of approximately 6 points. It appears as the fifth out of six lines in a block of text indicating ingredients, distribution information, and dietary fiber content, in black ink on a dark green background.

Your submission argues, in reply to the position stated in this office's letter to you of March 2, 1993, that the foreign origin constituents of the mixed vegetables recipes are not subject to marking under section 304 of the Tariff Act, as mixing them into the retail product effects a substantial transformation of the foreign articles. Second, you contend that even if marking is required, the existing marking, or that marking with some modifications, would be sufficient to satisfy Customs requirements.


(1) Whether the foreign-grown produce undergoes a substantial transformation in the U.S. as a result of the domestic mixing and processing;

(2) Whether the country of origin marking on the packaging is in a conspicuous place and otherwise satisfies the marking requirements.


Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), requires that articles of foreign origin or their containers be marked in a conspicuous place legibly, indelibly, and permanently to indicate to the ultimate purchaser 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 for marking purposes is defined at section 134.1(b), Customs Regulations (19 CFR 134.1(b)), to mean 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 the meaning of Part 134. Section 134.35, Customs Regulations (19 CFR 134.35), provides, in relevant part, that:

[a]n article used in the U.S. in manufacture which results in an article having a name, character, or use differing from that of the imported article, will be within the principle of the decision in the case of United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267 (1940). Under this principle, the manufacturer or processor in the U.S. who converts or combines the imported article into the different article will be considered the "ultimate purchaser" of the imported article within the contemplation of [the marking statute], and the article shall be excepted from marking.

The "ultimate purchaser" is generally defined, in section 134.1(d), (19 CFR 134.1(d)), as the last person in the United States who will receive the article in the form in which it was imported. The question of when a substantial transformation occurs for marking purposes is a question of fact, to be addressed on a case by case basis. Uniroyal Inc. v. United States, 3 CIT 220, 542 F.Supp. 1026 (1982), aff'd, 1 Fed.Cir. 21, 702 F.2d 1022 (1983).

Substantial Transformation

It is your position as set forth in your submission that mixing foreign-grown produce in the U.S. with U.S. grown produce effects a substantial transformation, such that the foreign constituents of the resulting "American Mixtures" product would be excepted from marking pursuant to 19 CFR 134.35. We do not agree.

As a preliminary matter, we note that in C.S.D. 86-28 (June 25, 1986), Customs ruled that fresh broccoli imported from Mexico in bulk form and cut, blanched, frozen, and packaged in the U.S. is not substantially transformed in the U.S. into a new and different article. Foreign origin broccoli processed in this manner must be marked with the name of the country in which the fresh broccoli is produced. Moreover, in HRL 731722 (September 28, 1988), Customs advised that if vegetables are imported frozen in bulk containers and commingled with U.S. frozen vegetables of the same type (i.e. imported frozen broccoli is mixed with U.S. broccoli), the imported product is not substantially transformed and is subject to the requirements of 19 CFR 134.25 that the importer certify to Customs that repacked material will be marked in accordance with section 304 and Part 134, Customs Regulations.

This office has not ruled previously whether a substantial transformation of foreign produce of one type results when it is combined or mixed with domestic produce of another type to yield a mixed vegetable product.

To support your claim of substantial transformation, you cite T.D. 89-29, a duty drawback case. You state that the test for "manufacturing" in duty drawback cases is basically the same as the test for "substantial transformation" and that as a matter of consistency and fairness, Customs should, because of similarities of these tests, rule that no origin marking is required on "American Mixtures" products. The test is not, however, the same. In construing substantial transformation for purposes of country of origin marking, the key question is who is the ultimate purchaser, i.e., the last person in the U.S. to receive the article in the form in which is was imported. We do not believe, therefore, that following the result in a drawback case is a guarantee of consistency or fairness, or that the kind of marking envisaged by Congress in enacting section 304 would be the likely result.

You cite HRL 555519 (March 12, 1990), a classification ruling. There, U.S. long grain white rice, wild rice, dehydrated vegetables, and seasonings were specially packaged in Canada. Only approximately .67 percent of the seasonings mix was of Canadian origin to be combined with the U.S. components. The rice dish underwent three processing operations in Canada. Firstly, two types of rices were combined and packaged in pouches. Secondly, dehydrated vegetables and seasonings were blended and likewise packaged. Thirdly, the two pouches were together packaged in a retail box. The basis for the Customs ruling was that the ingredients were "advanced in value and improved in condition". This is not the test for "substantial transformation". It is true Customs did not allow the rice product to be classified as "American Goods Returned" for duty purposes. However, Customs did not make a determination in that ruling that the goods needed to indicate "Product of Canada" for country of origin marking purposes. In the cited ruling, the importer appears to have been doing more extensive processing than that done by Green Giant, yet there was no finding of substantial transformation. Thus, we do not believe that the cited ruling is persuasive authority for your position.

Another classification ruling you cite is HRL 555524 (April 11, 1990). There, Customs found that the mixing of eleven different ingredients with water, boiling the mixture until the desired consistency was achieved, packaging the soup for retail sale, and quickly freezing the product resulted in a substantial transformation of those ingredients into a new and different article of commerce which is different in name, character, and use from the separate ingredients: soup. You believe the combining of broccoli with two or three other frozen vegetables is analogous to the soup in that a new and different article of commerce results: salad. We are not convinced. Manufacturing the soup required boiling all eleven ingredients to blend the flavors. The resulting product was clearly a new article in which the constituents had lost their separate identities. With regard to the Green Giant vegetable mixtures, the individual vegetables retain their identities. The manufacturing of soup is clearly distinguishable from the mixing process which creates the Green Giant product.

You also cite HQ 733207 (November 21, 1990), a marking case. There, Customs ruled that imported potpourri components underwent a substantial transformation when blended in the U.S. and were not required to indicate their countries of origin. Customs emphasized in the ruling that the process involved more than mere blending or chopping and that the mere packaging of an article does not result in a change in the country of origin. The manufacture of the potpourri resulted in a new and different article. Despite the fact that botanical items remained recognizable as parts of flowers and plants, their character and use became entirely different. They were blended to achieve a single pleasant aroma. We do not believe that the combining of the vegetables achieves the creation of a new article in the same sense or to the same degree as in the potpourri ruling.

The authorities you cite do not, therefore, persuade us that a finding of substantial transformation is indicated here. Having considered these precedents, we find that the ultimate purchaser of the Mexican broccoli and cauliflower is the retail purchaser in the U.S. of the "American Mixtures" mixed vegetable recipes. That purchaser receives the foreign produce in virtually the same form in which it was imported, albeit accompanied by other vegetables. It is evident that the Mexican processing of the broccoli and cauliflower is more extensive than the post-importation combining operation. The post-importation processing of the broccoli and cauliflower does not result in notable changes in the name, character, or use of the imported produce. They remain clearly identifiable within the mixtures and is evidently the largest (or among the largest) constituents by volume. The character of the resulting mixtures does not suggest a different kind of food article, or one which would be used differently from the broccoli or cauliflower alone.

In sum, we are satisfied that the processing of the imported broccoli and cauliflower to make "American Mixtures" recipes does not relieve Green Giant of the obligation under section 304 of the Tariff Act to indicate to the ultimate purchaser in the U.S. that the mixtures contain produce of foreign origin. The extent of the marking obligation is addressed in T.D. 91-7, which provides that materials of foreign origin which comprise mixtures must be marked unless substantially transformed. To the extent such foreign materials are insignificant, or would have no influence on the purchasing decision, Customs applies a "common sense" approach to require marking only of those articles which are of more than de minimis significance. Here, however, the Mexican broccoli and cauliflower are sufficiently important constituents of the mixtures to be subject to marking. At this time, we also shall require, in the absence of more precise information, that the packaging indicate the Guatemalan origin of the peas and the Chinese origin of the water chestnuts to the extent either is included in a particular recipe.

Required Placement of Marking

Section 134.46, Customs Regulations (19 CFR 134.46), provides in relevant part that when letters or words indicating the name of a country or locality other than the country of origin appear on an article, the name of the country of origin must appear "in at least comparable size" and "in close proximity" to such letters or words. emphasis added.

Under section 134.47, Customs Regulations (19 CFR 134.47), when a trademark or trade name marking indicates the name of a country or locality other than the country of origin, the country of origin shall be indicated either "in close proximity or in some other conspicuous location" preceded by "Made in", "Product of", or similar words. emphases added.

As you have acknowledged, the appearance of the "American Mixtures" trademark on the front of the frozen produce packaging triggers the requirements of 19 CFR 134.47. Thus, the marking of country of origin must appear in "close proximity" to the name "American Mixtures" or at least in some other conspicuous location.

In our letter to you of March 2, 1993, we stated that the existing marking (on the back side of the package, in the context described above) was not in a conspicuous location. Upon review of your submission we adhere to that conclusion, and find that in this instance 19 CFR 134.47 requires the marking to appear on the front side of the packaging. The prominence of the "American Mixtures" name is such that country of origin marking on this packaging is not in a conspicuous location unless it appears on the front side of the retail package. This requirement is consistent with previous determinations in which we have found that marking which might otherwise have been in a conspicuous place is inadequate because of the appearance of words and symbols which might, in their context, suggest to the ultimate purchaser a country of origin other than the actual country of origin of the foreign article.

This office has stated previously that the back side of a package of frozen produce can be an acceptable location for country of origin marking. See HRL 731830 (November 21, 1988) (marking appearing on the back of a retail box of frozen imported produce in close proximity to nutritional data is acceptable). See also Norcal/Crosetti Foods, Inc. v. United States, 790 F.Supp. 302, reversed and remanded, 963 F.2nd 356 (Cir. 1992). However, our rulings also have followed the principle that in determining what is a conspicuous location for country of origin marking, it is necessary to consider the context in which it appears. This, indeed, is the basis for the additional, more comprehensive specifications for marking set forth in sections 134.46 and 134.47.

Thus, for instance, in HRL 729096 (January 2, 1986), Customs ruled that although athletic shoes made in Korea would normally have been considered acceptably marked, the presence of prominent words and symbols referring to the U.S. and the U.K. dictated that additional marking appear on the box and on the size labels. The references to the U.S. and the U.K. had rendered the existing marking on the tongue and heel of the shoe inconspicuous, such that "...it would take a very determined consumer to ascertain ...the country of origin..." Under these circumstances a more expansive construction of the term "conspicuous" was considered necessary to give effect to the purposes for which section 304 was enacted.

Another instructive ruling was issued as HQ 734245 (February 18, 1992), and concerned the required marking for toy cars sold under the trademark "American Muscle". The New York Seaport had ruled that marking on the bottom side of the box alone was insufficient and further, that in each instance where the name "American Muscle" appeared, the country of origin was required to be indicated. This office concurred that the marking on the bottom of the box was insufficient. However, instead of requiring repetitive marking of the country of origin (in "close proximity" pursuant to 19 CFR 134.46), we applied 19 CFR 134.47 and found to be conspicuous a marking appearing on the front side of the box in 1/2" white lettering against a black background. We considered this location sufficient to eliminate any question which might have been created whether the "American Muscle" product was of U.S. or Chinese origin. See also HQ 733046 (May 4, 1990)(marking is conspicuous under 19 CFR 134.47 if it appears on two of the four box panels upon which appear the name "TCA Toy Corporation of America".)

We find that the same considerations apply here to require that the marking appear on the front side of the package of the "American Mixtures" product in order to be in a conspicuous place. The "American Mixtures" product, which contains significant quantities of foreign produce, is not adequately marked by placing the marking in the "usual" location, i.e., the back side of the bag as authorized under HRL 731830. The circumstances and context dictate that the marking appear on the front side of the packaging, rendered in such a manner as to satisfy the standard requirements of permanence and legibility. This location is necessary to give effect to the purpose of 19 CFR 134.47 to assure that the ultimate purchaser is not misled or deceived as to the origin of the products which he purchases.

Our determination regarding what is required under 19 CFR 134.47 makes it unnecessary to address in detail the considerations arising under 19 CFR 134.46 with respect to the recipe names "San Francisco", "Manhattan", etc. If the packages are marked on the front as required above, and the marking on the back side remains, with some enhancement of its contrast, the requirements of 19 CFR 134.46 will have been satisfied, as the marking of origin will be visible on the same surface or side of the package as the triggering references.

With respect to your claim that the recipe names are not triggering names for purposes of 19 CFR 134.46, because they have appended to them the word "Style", we disagree and find that as used the names are potentially confusing. Their use differs from the uses in the rulings cited, as they are not merely decorative or fanciful. Nor could we agree that the recipe names are generic, or have become so well known as a Green Giant Brand name that they are generally understood by consumers to mean a product of Green Giant in particular. It seems evident to us that the names have been selected by Green Giant by reason of their association with the U.S. As such, the marking regulations require appropriate clarification. This consideration does not apply, obviously, to the "Heartland" recipe, which does not refer to a specific place. As to your proposal that the size of the word "Style" be increased to match the size of geographic recipe names, we respectfully decline to address it, as our disposition of the other issues makes it unnecessary.

The submission concludes by presenting several proposals for methods of marking. As stated above, marking which appears on the front of the package is required. Changing the lettering on both the front and the back to white so as to provide a contrast with the green background is necessary to assure legibility. The suggested new wording, "Product of Mexico and United States/Prepared and Packaged by Green Giant in the United States" is acceptable under section 304 of the Tariff Act, provided it is accurate. However, the acceptability of the wording "prepared and packaged ... in the United States" is a matter to be decided under section 5 of the Federal Trade Commission Act (15 U.S.C. 45), and the Federal Trade Commission is the agency with the primary responsibility for determining whether, for example, it is accurate and non-deceptive to describe the product as "prepared" in the U.S. Where included in a recipe, vegetables which are products of other countries also must be indicated on the packaging by the name(s) of their countries of origin.


Packages of mixed frozen produce sold under the "American Mixtures" trademark are required to be marked as set forth above to show that they contain produce of foreign origin.


John Durant, Director

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