HQ 560018 - Country of origin marking of disposable aerosol containers; 19 U.S.C. - United States International Trade Commision Rulings

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HQ
560018
December 4,
1996
MAR-05 RR:TC:SM 560018 BLS

CATEGORY: MARKING

David M. Murphy, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman LLP 245 Park Avenue
New York, New York 10167-0002

RE: Country of origin marking of disposable aerosol containers; 19 U.S.C.
CFR 134.36(b); HRL 734781; HRL 732740

Dear Mr. Murphy:

This is in reference to your letter dated August 5, 1996, requesting a ruling that certain disposable aerosol containers need not be marked with their country of origin upon importation into the U.S.

FACTS:

Bristol-Myers Squibb ("Squibb") markets and sells to consumers aerosol antiperspirant/deodorants. In connection with these sales, Squibb intends to import unfinished empty disposable aerosol can shells from the United Kingdom. The shell will be produced for and under the direction of Squibb. The shell will be cut from sheet metal of United Kingdom and other origins, formed into a round cylinder ("shell") and a bottom attached in the United Kingdom (England). The can shells will be printed with information concerning the product's description, directions for use, and the weight of the contents, the customer's logo, name, other product information, a statement "Dist. By: Bristol-Myers Products, A Bristol-Myers Squibb Co. 1996, NY, NY 10154."

After importation, Squibb will fill the shells with the product and seal or assemble the shells with other components (a dispensing head and pressurization device) into finished aerosol dispensers for the contents. The contents of the finished aerosol product are produced in the U.S.

The finished aerosol products are sold to distributors for ultimate resale to consumers in the same form. Upon depletion of the antiperspirant/deodorant, the consumer will dispose of the aerosol cans. Squibb does not sell empty aerosol cans or shells.

Upon importation, the outermost container for these shells (i.e., the shipping carton), will be marked with the country of origin of the shells.

ISSUE:

What are the county of origin marking requirements for the imported shells?

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 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 the exceptions of 19 U.S.C. 1304.

Subpart C of Part 134 (19 CFR 134.21 et seq), sets forth the rules for the marking of containers and holders. We are satisfied that the imported shells are of the type defined as disposable containers ("[o]rdinarily discarded after the contents have been consumed") in section 134.24(a), Customs Regulations (19 CFR 134.24(a)). Under section 134.24(c)(1) of the Regulations (19 CFR 134.24(c)(1)), persons or firms who package disposable containers with various products which they sell are the "ultimate purchasers" of these containers and the disposable containers may be excepted from individual country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(D). In the present case, we find that Squibb is the ultimate purchaser of the empty aerosol cans.

The issue next to be addressed concerns the appearance on the imported shells of the words, "Distr. by: Bristol-Myers Products, A Bristol-Myers Squibb Co. 1996, NY 10154." In this regard, section 134.36 (b) provides that an exception from marking shall not apply to an article or retail container bearing any words, letters, names, or symbols described in 19 CFR 134.46 or 134.47 which imply that an article was made
or produced in a country other than the actual country of origin.

In this case, there is no implication that the aerosol can shell is of U.S. origin; the reference plainly is to the distributor/manufacturer of its future U.S. contents. Stated another way, such marking would in no way mislead Squibb, the ultimate purchaser of the aerosol can shells, which has ample knowledge of the reasons why such marking is present. Further, the consumer of the product will not be misled by this reference, since this person is not purchasing the product for the disposable container but for the antiperspirant/deodorant ingredients. As you point out, the reference to the distributor on the can is understood by the consumer to be the distributor of the contents. See Headquarters Ruling Letter (HRL) 734240 dated December 24, 1991 (imported collapsible tubes and aerosol containers imported to be filled solely with domestic contents in the U.S. may be imported printed with U.S. addresses and the marking "Made in U.S.A.", and 19 CFR 134.36(b) does not apply); and HRL 734781 dated December 24, 1992 (aluminum shells filled with paint in the U.S. to be used in the manufacture of marking devices may be imported with the marking "Made in U.S.A." without triggering 19 134.36(b), since the U.S. reference is clearly understood to apply to the contents of the aluminum can.)

Under these circumstances, we find that 19 CFR 134.36(b) does not apply to preclude the imported aerosol can shells from being excepted from individual country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(D). Provided that the outermost container in which the aerosol can shells are imported is marked with the country of origin when the shells reach the ultimate purchaser, Squibb, the country of origin marking requirements have been satisfied.

HOLDING:

1) The imported aerosol can shells are disposable containers within the meaning of Section 134.24(a), Customs Regulations (19 CFR 134.24(a)). Accordingly, when imported to be filled, Squibb, the importer, is the ultimate purchaser of the aerosol can shells pursuant to 19 CFR 134.24(c)(1), and these articles may be excepted from individual country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(D).

2) The presence of the U.S. geographical location ("NY, NY") printed on the can shell does not trigger 19 CFR 134.36(b), since there is no implication that the aerosol can shell is of U.S. origin. Therefore, the exception to the marking requirements
applies. Provided that the outermost container in which the aerosol can shells are imported is marked with the country of origin when the shells reach the ultimate purchaser, Squibb, the country of origin marking requirements have been satisfied.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant,

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