COUNTRY OF ORIGIN MARKING OF IMPORTED INSTANT COFFEE

NY 816079 November 2, 1995 MAR-2 R:N2:232 816079 CATEGORY: MARKING Mr. James S. O'Kelly Barnes, Richardson & Colburn 475 Park Avenue South New York, N.Y. 10016 RE: COUNTRY OF ORIGIN MARKING OF IMPORTED INSTANT COFFEE Dear Mr. O'Kelly: This is in response to your letter dated October 10, 1995, on behalf of Fine Foods International (New York) Inc., requesting a ruling on whether the proposed marking "Made From Coffees of Brazil, Ecuador, Kenya, Colombia, El Salvador" is an acceptable country of origin marking for imported instant coffee if another marking such as the name and address of the distributor appears on the article which is a country or locality other than the actual country of origin of the article. Your request also asks permission to mark the retail jars of instant coffee after importation. A marked sample was not submitted with your letter for review. Fine Foods imports instant coffee which has been blended and agglomerated in Europe from instant coffees produced in Brazil, Ecuador, Kenya, Columbia and El Salvador. After blending and agglomeration, the coffee is packaged in retail jars and then packed into cases holding either 12 or 24 jars. The outer cases are marked to show the source countries as the countries of origin. The jars will be imported without any labels. Fine Foods requests permission to label the jars in a warehouse after entry and release by Customs. Samples of the labels for four different customers were included with this request. The labels include "White Rose", "Java Gold", "Eight O'Clock" and "Farm Fresh". All of the labels are marked "Made From Coffees Of Brazil, Ecuador, Kenya, Columbia, El Salvador" either directly above or directly below the name and address of the United States distributor. For example, the "White Rose" label shows the following directly below the origin marking: Distributed By White Rose Food A Division Of Di Giorgio Corporation Somerset, NJ 00873 The same size lettering is used for the origin marking and the distributor information. 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), 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 coffee labels , 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 instant coffee. 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 instant coffee 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. However, since the instant coffee is not imported in its marked retail container, whether the subject articles are excepted from individual marking under 19 CFR 134.32(d) is for the district director to decide. In this regard section 134.34, Customs Regulations (19 CFR 134.34), provides that an exception may be authorized in the discretion of the district 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. In this case, assuming that the district director is satisfied that the imported instant coffee will be repacked in the manner described above, and that the other conditions set forth in 19 CFR 134.34 are met, the district director may authorize an exception under 19 CFR 134.32(d), in which case marking of the imported instant coffee will not be required. 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. Sincerely, Roger J. Silvestri Director, National Commodity Specialist Division