Internal advice request No. 07/025; Country of origin marking for cookies imported from Canada; applicability of 19 C.F.R. §134.46

HQ H019783 July 10, 2008 CLA-2 OT:RR:CTF:TCM H019783 GC CATEGORY: Marking TARIFF NO.: N/A U.S. Customs and Border Protection User Fee Airport – Pembina 112 W. Stutsman Pembina, North Dakota 58271 Attn: Port Director RE: Internal advice request No. 07/025; Country of origin marking for cookies imported from Canada; applicability of 19 C.F.R. §134.46 Dear Port Director: This is in response to your internal advice request, dated September 27, 2007, in accordance with Part 177.11(b)(3), Customs and Border Protection (CBP) Regulations (19 C.F.R. §177.11(b)(3)), in which you seek guidance on the country of origin marking requirements of two boxes of cookies from Canada. FACTS: At issue are boxes for Anna’s Ginger Thins and Orange Flavored Thins. Anna’s Ginger Thins: Anna’s Ginger Thins are packed in a box containing 2.8 pounds, net weight. The front panel identifies the product and displays the number of cookies in the upper left corner and the net weight in the upper right corner. The words “traditional Swedish cookies” appear on the bottom left corner (in English) and the bottom right corner (in Spanish) of the front panel. The back panel has the words “traditional Swedish cookies” written across the top. Below and to the left is a paragraph of text providing general information about “Anna” and the history of Swedish ginger cookies, along with an illustration of Anna and a serving of cookies and a cup of coffee. To the right is a reproduction of the royal crest and the words “by appointment to H.M. King of Sweden.” The top panel identifies the product’s name and provides the net weight of the package. In the upper left corner of the top panel, there is a reproduction of the Swedish flag with the words “Swedish recipe” below it. In the upper right corner of the top panel, there is a reproduction of the royal crest, with the words “by appointment to H.M. the King of Sweden” below it. The bottom panel provides the “Nutrition Facts” box and a listing of ingredients in English and Spanish on the right side of the panel. To the left is the following text, “These ingredients have been carefully selected to faithfully match those used at our Swedish bakery.” The text also includes a phone number to call in the event the consumer has any questions or comments concerning the product. Half of the end panel includes the text “Anna’s Traditional Swedish Cookies,” below which is a reproduction of the Swedish flag over the words “Swedish recipe,” and the words “ginger thins” on the bottom. The top half of the other end panel provides the UPC symbol, the name and address of the baker/distributor (Anna’s of North America, Calgary Ltd. / High River, Alberta, Canada), and the net weight of the container. The country of origin information, “Product of Canada”, appears on the panel just below the baker/distributor’s address, in print approximately the same size as the Canadian address. The bottom half displays another reproduction of the royal crest and the phrase “by appointment to H.M. King of Sweden”, and the words “ginger thins”. Orange Flavored Thins: The Orange Flavored Thins is packed in a box containing 5.25 ounces, net weight. The front panel identifies the product (Orange Flavored Thins) in English and in Spanish, and displays the net weight in the lower left corner and the word “Anna’s” in the lower right corner. The back panel has the nutrition information. The top panel identifies the product’s name, “Anna’s,” in capitalized letters, and provides the net weight of the package. In the upper left corner of the top panel, there is a reproduction of the Swedish flag with the words “Swedish recipe” below it. In the upper right corner of the top panel, there is a reproduction of the royal crest, with the words “by appointment to H.M. the King of Sweden” below it. The top of the bottom panel includes the following text: “These ingredients have been carefully selected to faithfully match those used at our Swedish bakery.” The text also includes a phone number to call in the event the consumer has any questions or comments concerning the product. This text is centered on the label and the lines of the text are more than single spaced. A few spaces below is a list of ingredients in English and then Spanish. At the bottom of the panel is the address of the baker/distributor (Anna’s of North America, Calgary Ltd. / High River, Alberta, Canada) and the country of origin (“Product of Canada”) written in English and Spanish, in print approximately the same size as the Canadian address. The country or origin marking and distributor information are printed in the same font and spacing as the ingredients. On one end label is the UPC symbol and bar code. The other end label identifies the product. ISSUE: What are the country of origin marking requirements for the subject merchandise? 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." United States v. Friedlander & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940). The country of origin is considered to be conspicuous if the ultimate purchaser in the United States is able to find the marking easily and read it without strain. See 19 C.F.R. §134.41(b); see also Headquarters Ruling Letter (HQ) 562832, dated October 23, 2003. When a foreign import is marked with the name of a locality other than the country in which the imported article is produced, the special marking rules of 19 C.F.R. §134.46 are triggered. Section 134.46 provides as follows: 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. (Emphasis added). To satisfy the close proximity requirement articulated in §134.46, the country of origin marking generally must appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears. See HQ 562832; HQ 73416, dated October 20, 1997 (holding that country of origin marking of a book must be on each side or surface containing a non-origin reference). In the present matter, numerous allusions to Sweden appear on the labels of the subject merchandise (i.e. textual references as well as representations of the Swedish flag, the royal crest, etc.). Specifically, with respect to the box of Anna’s Ginger Thins, references to Sweden are located on the top, bottom, front, back, and end panels, while the proper country of origin marking (“Product of Canada”) is present only on one of the box’s end panels. The box of Orange Flavor Thins contains similar references to Sweden on the top and bottom panels, while the country of origin marking (“Product of Canada”) is located on the bottom line of the bottom panel. Due to the large number of non-origin references, the country of origin (or text directing the purchaser to the location bearing the country of origin) must be marked on each section of the package in which a reference to a non-origin locality appears in order to satisfy the general marking requirements set forth in 19 C.F.R. §134.46. HOLDING: The proposed marking methods fail to satisfy the general marking requirements of 19 U.S.C. §1304 and the special marking requirements of 19 C.F.R. §134.46 in that the non-origin references may deceive the ultimate purchaser as to the actual country of origin of the subject merchandise. In accordance with 19 C.F.R. §134.46, the packages must be marked with the country of origin on the panels of the packaging in which references to the non-origin country are made, in the manner prescribed therein. You are to mail this decision to the internal advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division