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NY N009130

April 23, 2007

MAR-2 RR:NC:N2:228


Mr. James Sawyer
Drinker Biddle Gardner Carton
191 North Wacker Drive
Suite 3700
Chicago, IL 60606-1698


Dear Mr. Sawyer:

This is in response to your letters dated March 30, 2007 and April 17, 2007, and an email transmission dated April 18, 2007, on behalf of Gerber Products Company, Parsippany, NJ (Gerber), requesting a ruling on the country of origin marking for children’s fruit or vegetable products.

Descriptive literature and a digital image of the proposed marking was provided with your March letter, information concerning the condition of the fruits and vegetables, when imported, and the manner of processing in the United States was submitted with your April letter, and the email transmission provided additional information, including an illustration, of the retail package. Gerber’s Graduates for Toddlers: mini-fruits and mini veggies (Graduates) are composed of diced and freeze-dried fruit or vegetable pieces, single or in combination, packaged for retail sale in heat-sealed film containers. The fruit and/or vegetable ingredients in the Graduates may be products of the United States or of foreign origin. When of foreign origin the fruits or vegetables will be imported into the United States in frozen or aseptic packaging, and in some instances may have been peeled or reduced in size prior to export. After importation, some ingredients may be further reduced in size, and all fruits and vegetables, whether of United States or foreign origin, will be freeze dried in the United States prior to packaging.

As noted above, Gerber’s Graduates will be composed of either a single fruit or vegetable or a mixture of two such ingredients. Gerber’s current sourcing pattern anticipates the origin of one ingredient in the Graduates will be constant (i.e., bananas imported from Ecuador, apples grown in the United States), while the origin of the second ingredient in a mixed Graduates product (e.g., strawberries) may be a good of domestic or foreign origin. That pattern, however, may change in the future. To allow flexibility in their sourcing operations and minimize the economic burden of preparing new packages whenever a new source country is found, Gerber proposes to mark the retail packages in a manner that specifically identifies the country of origin of one ingredient and directs the purchaser to another location on the package for the country of origin of the second ingredient. The latter mark would be applied by the copacker at the time of packaging when the source country of the second ingredient is known.

The image of a prototype package, provided with your March letter, illustrates the proposed marking. Country of origin information appears on the back panel of the two-sided retail package. In vertical alignment on the left side of the panel appears the Nutrition Facts box, a statement of the ingredients (“freeze dried bananas and freeze dried strawberries”), the distributor’s name and address (Gerber Products Co., Fremont, MI 49413, USA), the statement “bananas from Ecuador, see below for strawberry origin”, and the UPC symbol. The ingredients, distributor name and address, and origin statement are printed in upper case type, the origin information in a type slightly larger than the distributor information. At the bottom of the package, slightly off-center, appear three ink-jet printed lines: the “use by” freshness date, the product lot number, and the words “strawberries from Spain.” The ink-jet print is in upper case letters and in larger size type than was used for the ingredients, distributor, or origin information noted above.

Your March letter requested approval of the marking as it appears on the prototype, i.e., “bananas from Ecuador, see below for strawberry origin”, “strawberries from Spain.” In your April letter, you proposed alternative language, suggesting the initial mark read “Fruit A [i.e., name of fruit] Product of COUNTRY X [name of country]. See Below for FRUIT B [name of second fruit] Origin”, and the relevant ink-jet mark read “FRUIT B [name of fruit] Product of COUNTRY Y [name of country]”.

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.

Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases 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, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, 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.

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. 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. 19 CFR 134.1(d)(1) states that if an imported article will be used in manufacture, the manufacturer may be the ultimate purchaser if he subjects the imported article to a process which results in a substantial transformation of the article.

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.

In this case, the imported fruits and vegetables are not substantially transformed as a result of the U.S. processing. They will remain goods of their respective countries of origin.

The proposed marking of Graduates products, described in your March letter and illustrated on the submitted digital image, does not satisfy the marking requirements of 10 U.S.C. 1304 and 19 CFR Part 134. Specifically, the word “from” is not a “word[ ] of similar meaning” to “made in” or “product of”, as required by Section 134.46, Customs Regulations (19 CFR 134.46).

The alternative proposed marking of the Graduates products, described in your April letter, viz., “Fruit A Product of COUNTRY X. See Below for FRUIT B Origin”, “FRUIT B Product of COUNTRY Y”, where the fruits are named and identified as a “product of” the specific countries, satisfies the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134. It is conspicuous, legible, and permanent, and is an acceptable country of origin marking for the Graduates food products.

If a good is determined to be an article of U.S. origin, it is not subject to the country of origin marking requirements of 19 U.S.C. §1304. Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580 on the propriety of proposed markings indicating that an article is made in the U.S.

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 Stanley Hopard at 646-733-3029.


Robert B. Swierupski

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