H316586

HQ H316586 May 5, 2021 OT:RR:CTF:FTM H316586 TSM CATEGORY: Marking Port Director, Port of San Juan U.S. Customs and Border Protection City View Plaza II #48 Carr 165 OFC 3000 Guaynabo, PR 00968-8046 Attn: Jose A. Montalvo, Import Specialist RE: Internal Advice Request; Country of Origin Marking of Condensed Milk Dear Port Director: This is in response to the request for internal advice, initiated on December 8, 2020, by attorney Peter S. Herrick, on behalf of his client, Plaza Provision Company, concerning country of origin marking of certain imported cans of sweetened condensed milk. Images of the merchandise at issue, submitted by Mr. Herrick, were reviewed by this office. FACTS: The merchandise at issue is canned sweetened condensed milk manufactured in Ukraine and imported into the United States. The condensed milk cans at issue are marked as follows: (1) the top/front section of each can contains the words “Indulac® Industria Lechera de Puerto Rico, Inc”; and (2) the bottom/side section of each can contains the words “Distribuido por y Manufacturado para/Distributed by and Manufactured for: Plaza Provision Comp. Lic. ORIL #7 San Juan, Puerto Rico 00936 Manufacturado por/Manufactured by: 4 Vishnevaya St, Ichnya City Chernigiv Region, Ukraine 16703.” Images of the canned condensed milk at issue are displayed below: 
 
 
 ISSUE: Whether the country of origin marking on the canned sweetened condensed milk under consideration is in compliance with the requirements set forth in 19 U.S.C. § 1304 and 19 C.F.R. Part 134. 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 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. Congressional intent in enacting 19 U.S.C. § 1304 was “that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.” See United States v. Friedlander & Co., 27 C.C.P.A. 297, 302 (1940). Part 134 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 C.F.R. § 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. Section 134.1(b), CBP Regulations (19 C.F.R. § 134.1(b)), defines “country of origin” as “the country of manufacture, production, or growth of any article of foreign origin entering the United States. 19 C.F.R. § 134.1(d) defines the “ultimate purchaser” generally as the last person in the U.S. who will receive the article in the form in which it was imported. 19 C.F.R. § 134.41(b) states that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain. The degree of permanence of the marking should be at least sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article (or its container) until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling. With respect to the images of the country of origin marking on the imported canned condensed milk, we note that the marking on all the images bear potentially misleading or deceptive references on the back of the can by listing a distribution company followed by an address in Puerto Rico. CBP has consistently held that non-origin geographical references made in the context of a statement relating to any aspect of the production or distribution of the product are misleading to the ultimate purchaser. See Treasury Decision (“T.D.”) 97-72, published in the Federal Register (62 FR 44221) on August 20, 1997.  Therefore, we find that the special marking requirements of 19 C.F.R. § 134.46 are triggered. 19 C.F.R. § 134.46, states the following: 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. Upon review we note that the country of origin of the condensed milk (Ukraine) is not in dispute. At issue is whether the individual condensed milk cans are properly marked with their country of origin. More specifically, at issue are the requirements of 19 C.F.R. § 134.46, that the country of origin marking must be preceded by “Made in,” “Product of,” or other words of similar meaning, and that the country of origin marking must appear in close proximity to the non-origin marking referencing any location in the United States or any foreign country, in at least a comparable size. Concerning the “close proximity” requirement of 19 C.F.R. § 134.46, CBP has found that the country of origin marking generally must appear on the same sides or surfaces on which the name other than the actual country of origin appears. See Headquarters Ruling Letter (“HQ”) H105329, dated August 12, 2010 (finding that the country of origin marking and the non-origin reference appearing three lines apart on the same panel of the Children’s Benadryl medicine box, satisfied the “close proximity” requirement of 19 C.F.R. § 134.46); see also HQ 73416, dated October 20, 1997 (finding that country of origin marking of a book must be on each side or surface containing a non-origin reference). With regard to cylindrical containers, CBP has found that both the country of origin marking and the non-origin reference must be positioned so as to be seen in the same viewing without having to turn the container. See HQ 734036, dated May 20, 1991 (finding that the marking “Product of Canada” on the water bottle cap and a reference to Los Angeles, CA, on the side of the bottle, could be seen in the same viewing without turning the bottle, and therefore satisfied the “close proximity” requirement of 19 C.F.R. § 134.46). See also HQ H007883, dated April 3, 2007 (finding that the markings “Distributed by/par Safeway Inc., P.O. Box 99, Pleasanton, CA 94566-0009. See bottom of can for country of origin” on the side and “MADE IN CANADA” on the bottom of individually labeled for retail sale cans of cat food satisfied the “close proximity” requirement of 19 C.F.R. § 134.46). Concerning the “comparable size” requirement of 19 C.F.R. § 134.46, CBP has interpreted the word “comparable” to mean “sufficiently similar” rather than “identical.” See HQ 734148, dated February 13, 1992 (finding that the country of origin markings on the hang tags did not comply with the marking requirements of 19 C.F.R. § 134.46, because the print size and type used to denote the country of origin marking was not comparable to that used to denote the non-origin reference marking). See also New York Ruling Letter (“NY”) D81567, dated September 9, 1998 (finding that a sewn in label featuring the non-origin marking, along with a hang tag affixed to the label, featuring both the country of origin marking on one side and the non-origin marking on the other side, printed in capitalized letters of different font size and style, did 

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 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. Congressional intent in enacting 19 U.S.C. § 1304 was “that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will.” See United States v. Friedlander & Co., 27 C.C.P.A. 297, 302 (1940). Part 134 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 C.F.R. § 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. § 1304. Section 134.1(b), CBP Regulations (19 C.F.R. § 134.1(b)), defines “country of origin” as “the country of manufacture, production, or growth of any article of foreign origin entering the United States. 19 C.F.R. § 134.1(d) defines the “ultimate purchaser” generally as the last person in the U.S. who will receive the article in the form in which it was imported. 19 C.F.R. § 134.41(b) states that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain. The degree of permanence of the marking should be at least sufficient to insure that in any reasonably foreseeable circumstance, the marking shall remain on the article (or its container) until it reaches the ultimate purchaser unless it is deliberately removed. The marking must survive normal distribution and store handling. With respect to the images of the country