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NY N008578

April 16, 2007

MAR-2 RR:NC:2:240


Mr. Graham Summerfield
Jackel Inc.
259 Homestead Road
Hillsborough, NJ 08844


Dear Mr. Summerfield:

This is in response to your letter dated March 14, 2007 requesting a ruling on whether the proposed marking "Made in France" is an acceptable country of origin marking for imported lipsticks packaged in China from bulk lipstick mass of French origin. A marked sample was not submitted with your letter for review.

You state that bulk lipstick mass manufactured in France will be sent to China for processing and retail packaging. The lipstick mass, which contains all the essential ingredients of a finished lipstick, is warmed to obtain a consistency that can be poured. The lipstick mass is poured into tubular molds and cooled to its original consistency to form the "stick" or "bullet" shape of the lipstick. Each lipstick bullet is inserted into the base of a retail tube applicator. A plastic cap is placed over the applicator. The applicator and cap are manufactured in China. You propose that a label will be applied to the base of the applicator, which will designate “Made in France” as the country of origin of the lipsticks. The lipsticks will be packed in a master carton with the marking “Made in France”.

The bulk lipstick mass formulations exported from France can only be used to make lipsticks in tube applicators for retail sale; therefore, there is no viable commercial use of the exported bulk lipstick mass until it undergoes further processing operations in China. In order for this bulk lipstick mass to be put into a form suitable for its intended use as lipstick by consumers, it must first be shaped into "bullet" or “stick” configurations, and then inserted into applicators. The foreign operations consisting of heating the mass until it can be poured, forming it into stick or bullet shapes in molds, cooling the stick shapes, and inserting the sticks into individual applicator tubes constitute necessary finishing steps in the total manufacturing process of the finished article, which is begun in France. Not until these processes occur can a consumer effectively apply this lipstick. The bulk lipstick mass manufactured in France is not substantially transformed when further processed into lipstick bullets and repackaged into the lipstick applicators in China. Although the French origin lipstick mass must be heated to achieve a change in shape (lipstick bullet), the essential physical and chemical characteristics of the lipstick mass has not changed when compared to the finished lipstick in that it still has the same name and use as lipstick. The bulk lipstick mass imparts the essential character to the lipstick albeit it is now named lipstick and not bulk lipstick mass. Therefore, the bulk lipstick mass of French origin is not substantially transformed by being further processed and repackaged in China and the country of origin of the finished lipstick is France. The completed lipsticks in tube applicators remain products of France.

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.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

The proposed marking “Made in France, as described above, is marked in satisfaction of 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 lipsticks.

Perfumery, cosmetic and toiletry products are subject to the requirements of the Federal Food, Drug, and Cosmetic Act, which are administered by the U.S. Food and Drug Administration. You may contact them at U.S. Food and Drug Administration, Office of Cosmetics and Colors 5100 Paint Branch Parkway, College Park, MD 20740-3835 (202) 418 3412.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 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 Stephanie Joseph at 646-733-3268 Sincerely,

Robert B. Swierupski

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