Country of origin marking requirements for return mailers

HQ 731543 May 17, 1989 MAR-2-05 CO:R:C:V 731543 KG CATEGORY: Marking David M. K. Foster Vancouver Business Forms Ltd. 8650 Barnard Street Vancouver, B.C. V6P 5G5 Canada RE: Country of origin marking requirements for return mailers Dear Mr. Foster: This is in response to your letter of June 16, 1988, requesting a ruling on whether return mailers manufactured and printed by your company in Canada for an American client are exempt from the country of origin marking requirements of section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304). FACTS: You manufacture and print return mailers in Canada for an American client. The sample return mailers submitted for examination advertise various products and services such as a dating service, discount coupons and a catalog for collectors. These mailers are conspicuously marked "Printed in Canada". The American client would like the country of origin marking removed from the mailers and printed only on the boxes in which they receive the mailers. ISSUE: Whether a return mailer advertising various products and services may be exempted from country of origin marking requirements under the exceptions to marking set forth in 19 U.S.C. 1304. 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 U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or 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. 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." United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302 (1940). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. The ultimate purchaser is defined in section 134.1(d), Customs Regulations (19 CFR 134.1(d)), as "generally the last person in the U.S. who will receive the article in the form in which it was imported." If the imported article is distributed as a gift, section 134.1(d)(4), Customs Regulations (19 CFR 134.1(d)(4)), provides that the recipient is the ultimate purchaser. Customs has held in a ruling on this point that imported advertising brochures and flyers, to be distributed without charge by the importer to prospective customers of the importer's business, are subject to country of origin marking requirements under 19 U.S.C. 1304. HQ 723488 (October 31, 1983). In that ruling, Customs rejected the importer's argument that the importer was the ultimate purchaser. Also see HQ 728335 (August 2, 1985), in which Customs held that recipients of a brochure used for self-promotion were the ultimate purchaser and therefore, the brochure would have to be individually marked with the country of origin marking. Imported return mailers are not distinguishable from imported advertising brochures and flyers; in fact return mailers are a form of advertising brochures that are used by businesses for the same purpose as standard advertising brochures and flyers. Even though the purpose of the importer in distributing advertising brochures and return mailers is to increase the business of the advertiser, the effect of accepting the brochure or return mailer is to enhance the business of the foreign company printing the item. The recipient of the printed material ought to be able to make an informed choice as to whether or not the recipient chooses to enhance the business of the foreign printer. Therefore, it is also within the legislative intent of 19 U.S.C. 1304 to require country of origin markings on return mailers printed in a foreign country. For all the above reasons, return mailers are not exempted from 19 U.S.C. 1304. HOLDING: Return mailers printed in Canada are required by 19 U.S.C. 1304 to have country of origin markings on them. The recipient of the return mailer is the ultimate purchaser for the purposes of 19 U.S.C. 1304 and 19 CFR Part 134. Sincerely, Marvin M. Amernick, Chief, Value, Special Programs and Admissibility