HQ 560709 - Country of origin marking; 19 U.S.C. ?1304; 19 CFR 134.46. - United States International Trade Commision Rulings

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HQ 560709

March 12, 1998

RR:CR:SM 560709 JML

CATEGORY: MARKING

Ms. Norma Schaefer, RA specialist
Tecnol, Inc.
7201 Industrial Park Boulevard
Fort Worth, TX 76180

RE: Country of origin marking; 19 U.S.C. ?1304; 19 CFR 134.46.

Dear Ms. Schaefer:

This is in response to your letter of October 20, 1997, requesting a binding ruling concerning the country of origin marking requirements for medical and clean room products assembled in Mexico.

FACTS:

The facts provided indicate that Tecnol, Inc. ("Tecnol") manufactures a wide variety of medical and clean room products such as shoe covers, masks, orthopedic splints and braces, slings and surgical room accessories. Most of these products are or will be assembled in Mexico from U.S. fabricated components under heading 9802, Harmonized Tariff Schedule of the United States

You state that most of Tecnol's products are subject to the rules of the Food and Drug Administration, which require Tecnol's name and address to be on the labels and/or packaging. Moreover, in cases where Tecnol exports products to Europe, the European representative's name and address must also appear on the label or packaging.

Tecnol has received conflicting information, however, regarding the country of origin marking requirements for its products upon importation from Mexico. You submitted examples of both the current and proposed manner of the product marking. You further state that the country of origin marking on all products is essentially the same design, with the same information.

EXAMPLE #1

In the first example (#1), you submit a copy of a package for an arm sling. In the lower left corner of the packaging appears in bold-type:

Manufactured by
TECNOL, INC.
7201 Industrial Park Blvd.
Forth Worth, Texas 76180
Telephone: 817-581-6424

In the lower center of the packaging, in smaller, non-bold-type appears:

Assembled in Mexico

You state that Dallas-Fort Worth Customs has indicated that the above manner of marking is confusing -- and therefore not acceptable-- because of the "Manufactured by" language appearing above Tecnol's name. However, you state that Customs Del Rio has accepted this manner of marking.

EXAMPLES #2 and #3

In the second example (#2), you submit a copy of the back packaging for a tracheostomy tube holder. In the lower right corner of the packaging appears, in normal type:

T.I.E., BAFIL, Centre d' Affairs ACTIMART, 1140, Rue Ampere
13795 AIX EN PROVENCE CEDEX 03, FRANCE

Manufactured by Tecnol, Inc., Fort Worth, TX 76180, Tecnol, Soft n' Sure and EverGreen are trademarks of Tecnol Medical Products, Inc. or Tecnol, Inc. Velcro is a registered trademark for fasteners made by Velcro companies. 1997 Tecnol Medical Products, Inc. Assembled in Mexico.

You state that although Customs Los Indios has indicated that the above marking is not conspicuous, it has been accepted by Customs Del Rio.

In the third example (#3), you submit copies of the side panels of the tracheostomy tube holder packaging. At the top of center of the first panel appears:

Tecnol, Soft n' Sure and EverGreen are trademarks of Tecnol Medical Products, Inc. or its wholly-owned subsidiaries. 1997 Tecnol Medical Products, Inc. Assembled in Mexico.

At the bottom right corner of that packaging appears in the same size lettering:

Manufactured by Tecnol, Inc.
Fort Worth, TX 76180

At the bottom left side of the opposite side panel appears the name and address of a French representative, in approximately the same size lettering, and about 1 inch from a UPC bar code. EXAMPLES #4 and #5

In the fourth and fifth examples (#4, #5), you submit proposed new label designs, which show the required country of origin statement in capital letters located in the same sentence as various non-origin references. Specifically, example #4 appears in the bottom left corner of the packaging as:

Tecnol, Inc. Fort Worth, TX 76180. ASSEMBLED IN MEXICO. T.I.E., BAFIL, Centre d' Affairs ACTIMART, 1140, Rue Ampere 13795 AIX EN PROVENCE CEDEX 03, FRANCE

Example #5 appears in the bottom left corner of the packaging as:

Tecnol, Inc. Fort Worth, TX 76180. ASSEMBLED IN MEXICO. Tecnol and EverGreen are trademarks of Tecnol Medical Products, Inc. or its wholly-owned subsidiaries. 1995,1997 Tecnol Medical Products, Inc. T.I.E., BAFIL, Centre d' Affairs ACTIMART, 1140, Rue Ampere 13795 AIX EN PROVENCE CEDEX 03, FRANCE

ISSUE:

Whether the country of origin markings shown in examples #1 through #5 are acceptable under 19 U.S.C. 1304.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930 (19 U.S.C. ?1304), provides that unless excepted, every article of foreign origin imported into the United States 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 United States 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 of 19 U.S.C. ?1304.

In that regard, section 134.43(e), Customs Regulations (19 CFR 134.43(e)), provides that:

Where an article is produced as a result of an assembly operation and the country of origin of such article is determined under this chapter to be the country in which the article was finally assembled, such article may be marked, as appropriate, in a manner such as the following:

(1) Assembled in (country of final assembly);

(2) Assembled in (country of final assembly) from components of (name of country or countries of origin of all components); or

(3) Made in, or product of, (country of final assembly).

Thus, from the language of 19 CFR 134.43(e), where appropriate, the terms "Made in," "Product of," and "Assembled in" are words of similar meaning. See Treasury Decision ("T.D.") 96-48, dated June 6, 1996. For purposes of this ruling we will assume that Tecnol's products otherwise qualify to be marked as products of Mexico.

Section 134.46, Customs Regulations (19 CFR 134.46) provides:

In any case 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 location 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 appear 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 of the article, 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 T.D. 97-72, dated September 19, 1997, Customs listed examples of proposed markings which may mislead or deceive the ultimate purchaser as to the actual country of origin of the imported article. Among the examples cited in T.D. 97-72 which Customs has consistently ruled to be misleading or deceiving to an ultimate purchaser, thus triggering the requirements of 19 CFR 134.46, are the words "Manufactured by" followed by a U.S. geographical reference. Lastly, Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears. See HRL 708994, dated April 24, 1978.

EXAMPLE #1

Example #1 contains the capitalized, bold-type words "Manufactured by," followed by Tecnol's U.S. address. Thus, following the cited examples in T.D. 97-72, the special marking requirements of section 134.46, Customs Regulations are triggered. We further note that the presence of the "Assembled in Mexico" in comparable size lettering at the bottom center of the same side of the packaging, approximately 1 1/2 inches from the triggering language, satisfies the requirements of section 134.46, Customs Regulations.

EXAMPLES #2 AND #3

With respect to examples #2 and #3, copies of the tracheostomy tube holder packaging, Customs is of the opinion that the special marking requirements of section 134.46, Customs Regulations are triggered by the words "Manufactured by Tecnol." We are of the opinion, however, that the presence of the "Assembled in Mexico" language on the back panel and one side panel does satisfy the requirements of section 134.46, Customs Regulations. That is, the required "Assembled in Mexico" language as it appears on the back panel and one side panel is in "close proximity" to the triggering language. Moreover, considering the proper country of origin marking on those panels, we are of the opinion that the presence of the French representative's address (without any country of origin statement) on the opposite side panel does not trigger the special marking requirements of 19 CFR 134.46. Therefore, the marking as it exists on examples #2 and #3 is in accordance with the requirements of 19 U.S.C. ?1304.

EXAMPLES #4 AND #5

In our view, the proposed markings submitted in examples #4 and #5, do appear to be acceptable. We further note the absence of any language cited in T.D. 97-72 which Customs has consistently ruled to be misleading or deceiving to an ultimate purchaser, thus triggering the requirements of 19 CFR 134.46.

HOLDING:

In light of the requirements of 19 U.S.C. ?1304 and section 134.46, Customs Regulations, the country of origin markings in examples #1 through #5 are acceptable.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are 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, Director
Commercial Rulings Division

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