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NY B85452

May 22, 1997

MAR-2 RR:NC:SP:232 B85452


Mr. Peter J. Miller
99 F Main Street, #184
Stoneham, MA 02180


Dear Mr. Miller:

This is in response to your letter dated May 5, 1997 requesting a ruling on whether the proposed method of marking the container in which the candy is imported with the country of origin in lieu of marking the article itself is an acceptable country of origin marking for the imported candy. A marked sample container was not submitted with your letter for review.

The subject merchandise consists of five gram (0.18 ounce) pieces of hard candy individually wrapped in cellophane imported loose in eleven pound cases. Samples of the candy and of the case labels were included with your request. The case labels include two white labels with black lettering glued to a piece of the cardboard box. The top label, below the list of ingredients, is marked "Distributed by The Import Dep.,Inc.,99F,main St.,184 Stoneham,MA 02180." The next line shows "Call(617)622-2890 for nutritional information". Below this are the words "MADE IN SLOVAKIA." The bottom label is marked "MADE IN SLOVAKIA P.0.MRC 0002,THE IMPORT DEPT.,INS."

You indicate that most of your customers are bulk candy stores or candy distributors. Attachment #2 to your inquiry is a statement from your company to resellers advising them that if the candy is repackaged for resale, the packaging must be marked "Made in Slovakia" in a clear and conspicuous manner. If the candy is sold from bins, the country of origin must be stated on the bin in a clear and conspicuous manner.

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 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 exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. If an imported article is to be sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. In this case, the ultimate purchaser of the candy is the consumer who purchases the product at retail.

An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article. Accordingly, if Customs is satisfied that the article will remain in its container until it reaches the ultimate purchaser and if the ultimate purchaser can tell the country of origin of the candy by viewing the container in which it is packaged, the individual candy would be excepted from marking under this provision. Since the candy is not imported in containers which will reach the ultimate purchaser, this exception does not apply.

However, for articles that are to be repacked after importation, section 13.34, Customs Regulations (19 CFR 134.34), allows the port director to grant an exception from individual marking requirements under specified conditions. In this regard an exception may be authorized at the discretion of the port director under 19 CFR 134.32(d) for imported articles which are to be repacked after release from Customs custody under the following conditions: (1) The containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.; (2) The importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to the liquidation of the entry. Since you sell the imported candy to customers who place it in bulk bins, it would be impossible for you to arrange the necessary supervision or for you to certify that the retailers would properly display the country of origin at the bulk bins. As such, this exception from individual marking does not apply.

Since the imported candy does not qualify for the above exceptions, the individual candy wrappers must be marked conspicuously in accordance with the requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b). Headquarters' ruling 732226 dated April 7, 1989 determined that the country of origin marking that appears at the edge of the wrapper and is obscured by the folded wrapper is not sufficiently conspicuous; it must appear in the center of the wrapper to be in compliance with the requirements of 19 U.S.C. 1304 and 19 CFR 134.41(b).

Regarding the marking that appears on the submitted labels for the cases of the loose candy, section 134.46, Customs Regulations (19 CFR 134.46), requires that 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 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, 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.

The proposed marking of the imported cases, as described above, satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is an acceptable country of origin marking for the imported cases of the loose candy.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).

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.


Gwenn Klein Kirschner
Chief, Special Products Branch

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