Country of Origin Marking of Band-Aid® Brand Adhesive Bandages; “Our Veteran Heroes” design

HQ H247824 November 21, 2013 CLA-2: OT:RR:CTF:TCM H247824 ERB Category: Marking Mr. Robert J. Leo, Esq. Meeks, Sheppard, Leo & Pillsbury 570 Lexington Avenue 44th Floor New York, NY 10022 RE: Country of Origin Marking of Band-Aid® Brand Adhesive Bandages; “Our Veteran Heroes” design Dear Mr. Leo: This is in reply to your request dated on November 6, 2013, on behalf of your client, Johnson & Johnson Consumer Products Company, of Skillman, New Jersey (“Johnson & Johnson”), to U.S. Customs and Border Protection (CBP), seeking a binding ruling concerning the country of origin marking of “Our Veteran Heroes” Band-Aid® Brand Adhesive Bandages. FACTS The merchandise at issue consists of boxes containing 20 sterile adhesive bandages, of assorted sizes, and assorted designs. The front, back, and side panels feature a trademarked banner that states “Our Veteran Heroes.” The front panel depicts stars and stripes in red, white and blue, representing the American flag. It contains the origin statement “MADE IN BRAZIL,” in all capital letters, in 5.65 point sized font, in the lower right corner. The back panel depicts a digital camouflage pattern and also contains the origin statement “MADE IN BRAZIL,” in all capital letters, in 5.65 point sized font, in the lower right corner. On one side panel, the origin marking “MADE IN BRAZIL” appears in the middle of the panel, in all capital letters, in 5.65 point sized font, directly under the size listings of the adhesive bandages contained in each package, and superimposed on top of visual depictions of the adhesive bandages. These include a torpedo, a blue digital camouflage pattern, red stripes with one blue star, and a portion of an American flag. On the other side panel the origin statement “Made in Brazil,” is in standard typeface, appears under Johnson & Johnson’s corporate address in a 5 point sized font. ISSUE What are the country of origin marking requirements of the subject adhesive bandage boxes that depict the American flag, but are manufactured in Brazil? LAW AND ANALYSIS The marking statute, § 304 of the 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 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. Friedlaender & Co. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940). Section 134, CBP Regulations, (19 CFR § 134) implements the country or origin marking requirements and exceptions of 19 U.S.C. § 1304. Section 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. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the “country of origin” within the meaning of this part;… Further analysis shows 19 CFR § 134.46 to be instructive here as well. This clause regards a marking when the name of a country or locality other than the country of origin appears. Specifically § 134.46 states: in any case in which the words “United States,” or “American,” the letters “U.S.A.,” or 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. The purpose of 19 CFR § 134.46 is to prevent the ultimate purchaser from being misled or deceived when the name of a country or place other than the country of origin appears on an imported article or its container. In this case, the descriptor words “United States” or “U.S.A.” aren’t present on any side of the exterior packaging. Rather, § 134.46 is triggered because of the stars and stripes on the exterior packaging representing the American flag. CBP has read this section to cover situations where an American flag or references thereof appear on a product or its packaging. Upon examination of the exterior of the Band-Aid® Brand Adhesive Bandages box, the origin marking is printed directly onto the packaging, on each of the four panels. The origin marking is in white and is clearly legibly on the dark backgrounds of each of the panels that depict the American flag or other similar references to the United States or America. The origin marking is in close proximity to, or super-imposed on, the depictions of the American flag. As such, CBP agrees that the origin marking “MADE IN BRAZIL” text appears conspicuously, permanently, and legibly on each side of the exterior packaging, thus satisfying U.S. Customs Regulations § 134.46 and § 304 of the Tariff Act of 1930, 19 U.S.C. § 1304. HOLDING On the basis of the information and sample submitted, we find that the “Our Veteran Heroes” Band-Aid® Brand Adhesive Bandage packaging satisfies the marking requirements of 19 CFR § 134.46. A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transactions. Sincerely, Ieva K. O’Rourke, Chief Tariff Classification & Marking Branch