THE COUNTRY OF ORIGIN MARKING OF CANNED PET FOOD FROM CANADA; ARTICLE 509

N245714 September 23, 2013 MAR-2 OT:RR:NC:N2:231 CATEGORY: MARKING Mr. Scott Hoffman Trans American CHB 4902 North America Drive Buffalo, NY 14224 RE: THE COUNTRY OF ORIGIN MARKING OF CANNED PET FOOD FROM CANADA; ARTICLE 509 Dear Mr. Hoffman: This is in response to your letter dated August 29, 2013 requesting a ruling on whether certain proposed marking represents acceptable country of origin marking for imported cans of pet food. Your letter was submitted on behalf of your client, Menu Foods (aka Simmons Pet Food Inc.) of Streetsville, Ontario, Canada. Images of a proposed printed label and of a printed metal can end were submitted with your letter for review. Statements and information accompanying your inquiry suggest that the canned pet food at issue is manufactured in Canada, and that its country of origin under the “NAFTA Marking Rules” (19 CFR Part 102) is Canada. For the purposes of this ruling, that is assumed to be the case. The label in question is meant to encircle a 3-ounce can of “Go! Natural” cat food for individual retail sale. In pertinent part, the label bears a statement indicating that “Go! Natural” is “distributed under license by” a named firm, whose address is then shown to be in “Abbotsford, British Columbia, Canada.” That Canadian address is followed by a telephone number, Web address, and the words “See can end for Country of origin.” (All of the foregoing is printed in a very small, un-bolded font, and in our opinion cannot be read without strain. Some of the product information and use instructions printed in other sections of the label are in larger and/or bolded fonts.) The can end, in turn, is printed in a reasonably legible manner with the words “PACKAGED IN CANADA.” 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. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. The country of origin marking requirements for a “good of a NAFTA country” are also determined in accordance with Annex 311 of the North American Free Trade Agreement (“NAFTA”), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations. Section 134.45(a)(2) of the regulations, provides that “a good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish.” Section 134.1(g) of the regulations, defines a “good of a NAFTA country” as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain. With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable. Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases 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, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, 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. Your client appears to be arguing that since the proposed marking contains no references to countries or locales outside of Canada, 19 CFR 134.46 does not apply, and that phrases such as “Made in Canada” or “Product of Canada” are therefore not required in the present case. However, your client’s conclusion seems to disregard the general requirement, per 19 U.S.C. 1304, of clearly conveying country-of-origin information to the ultimate purchaser, regardless of whether the particular situation invokes §134.46. The inapplicability of §134.46 in a given scenario in no way absolves importers/exporters from that requirement, nor does it allow or excuse the use of language that is silent on the country of origin, impedes knowledge of it, and/or raises doubts about it. After examining the submitted images, we find that the proposed marking fails to unmistakably inform the ultimate purchaser of the country of origin. The phrase “distributed by” generally relates to the identity/location of the seller or marketer of a good. The phrase “packaged in” generally relates to the place where a good was put into its container. Neither phrase signifies a place of manufacture, production or growth. And although the purchaser is directed to “see can end for country of origin,” upon doing so he/she is then advised only that the product was packaged in Canada, thereby leaving open (in the reader’s mind) the possibility that the cat food might have been produced in some unspecified country and merely canned in Canada. The net effect is one of ambiguity. The proposed marking of imported canned pet food, as described above, is not conspicuously, legibly and permanently marked in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not an acceptable country of origin marking for the imported merchandise. 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 National Import Specialist Nathan Rosenstein at (646) 733-3030. Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to U.S. Customs and Border Protection, Office of International Trade, Regulations and Rulings, Trade and Commercial Regulations Branch, 10th Floor, 90 K St., NE, Washington, D.C. 20229-1177. Sincerely, Myles B. Harmon Acting Director National Commodity Specialist Division