THE COUNTRY OF ORIGIN MARKING OF CERTAIN FOOD GIVEAWAY ITEMS IMPORTED FROM CANADA; NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA); ARTICLE 509

N186129 October 12, 2011 MAR-2 OT:RR:NC:2:228 CATEGORY: MARKING Mr. Reginald Williams A.N. Deringer, Inc. 48 Customs Loop Houlton, ME 04730 RE: THE COUNTRY OF ORIGIN MARKING OF CERTAIN FOOD GIVEAWAY ITEMS IMPORTED FROM CANADA; NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA); ARTICLE 509 Dear Mr. Williams: This is in response to your letters dated September 2 and September 23, 2011 requesting a ruling on the country of origin marking requirements applicable to certain food products that will be imported for distribution, free of charge, to prospective customers in the United States. Your letters were submitted on behalf of your client, Cavendish Farms, located in Dieppe, New Brunswick, Canada and Wheatley, Ontario, Canada. Cavendish Farms produces battered, frozen vegetable products (e.g., tempura onion rings, tempura pepper rings, etc.) in Canada for sale and export to the USA. They wish to pack some small (approximately 8-ounce) giveaway plastic bags of such products into cardboard cases to be sent to their salesmen in the USA. In the United States, the bags will be presented (by the salesmen) to prospective buyers for sampling and evaluation purposes. You state that in most cases, the products will be cooked and tasted while the salesman is at the prospective customer’s premises. You have advised that no sale is involved in this scenario. Cavendish Farms’ salesman will give the item(s) to the prospective customer, free of charge. Neither the salesman nor any other party will pay fees or charges to Cavendish Farms to obtain the items. You have also stated that all of the subject products are made completely of Canadian-origin components, and that they “will qualify for NAFTA tariff status and NAFTA marking rules.” For the purposes of this ruling, we assume that the goods will in fact be products of Canada. 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. By enacting 19 U.S.C. 1304, Congress intended to ensure that the ultimate purchaser would be able to know by inspecting the marking on the imported goods the country of which the goods are 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, 302 C.A.D. 104 (1940).Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. As provided in section 134.41, Customs Regulations (19 CFR 134.41), the country of origin marking 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. With regard to country of origin marking, a prerequisite to determining the applicability of the requirements of 19 U.S.C. 1304 is ascertaining the identity of the ultimate purchaser of the imported articles. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)), provides that the ultimate purchaser of a good of a NAFTA country is the last person in the United States who purchases the good in the form in which it was imported. However, if a good of a NAFTA country is imported and distributed as a gift, the ultimate purchaser is the purchaser of the gift. (This is in contrast to a non-NAFTA-country good distributed as a gift, in which case the recipient of the gift is considered the ultimate purchaser.) See 19 CFR 134.1(d)(4). In the current scenario, it appears that the only “purchaser” of the food giveaways (gifts) is the Canadian manufacturer, Cavendish Farms, which presumably incurs all of the costs associated with the production, packing and shipping of the items. Section 134.32 of the Customs Regulations (19 CFR 134.32) sets forth general exceptions to marking requirements for specified articles or conditions. Section 134.32(h) provides an exception for “articles for which the ultimate purchaser must necessarily know, or in the case of a good of a NAFTA country, must reasonably know, the country of origin by reason of the circumstances of their importation or by reason of the character of the articles even though they are not marked to indicate their origin.” As noted above, Cavendish Farms, located in Canada, is the purchaser of the gifts, and is obviously aware of their origin. In connection with the foregoing, we also note that section 134.22(e)(1) of the regulations states that containers or holders of imported articles are not required to be marked if they are containers or holders of articles within the exceptions set forth in paragraph (f), (g) or (h) in §134.32 or they are containers of a good of a NAFTA country within the exceptions set forth in paragraph (e), (f), (g), (h), (i), (p) or (q) of §134.32. Based on the regulations cited above and the facts you have set forth, we find that neither the bags nor the cases of the subject food giveaways are required to be marked with the country of origin of their contents. This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181). 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 the National Import Specialist at (646) 733-3029. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division