June 30, 2004 CBP Bulletin Notices on Certain Gas Barbecue Grills and Grant of Lever-Rule Protection to Frito-Lay
In the June 30, 2004 issue of the U.S. Customs and Border Protection Bulletin (CBP Bulletin) (Vol. 38, No. 27), CBP issued notices (a) proposing to revoke a classification ruling on certain gas barbecue grills, and (b) granting Lever-Rule protection to Recot Inc./Frito-Lay, Inc. (Frito-Lay). CBP states that it is also proposing to revoke any treatment it has previously accorded to substantially identical transactions that are contrary to its position in the proposed revocation notice.
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CBP states that any party who has received a contrary ruling or decision on the merchandise that is subject to the proposed revocation, or any party involved with a substantially identical transaction, should advise CBP by July 30, 2004, the date that written comments on the proposed ruling are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in the notice.
CBP also states that the proposed revocation notice covers any rulings on the subject merchandise that may exist but have not been specifically identified.
Proposed Revocation of Classification Ruling
Certain Gas Barbecue Grills. At issue are the BonzaTM 2, BonzaTM 3, and BonzaTM 4 (Bonza Grills), which are heavy-duty propane gas grills. BonzaTM 2 measures approximately 49 x 25 x 43 inches, weighs 120 lbs, and has two burners. BonzaTM 3 measures approximately 59 x 26 x 43 inches, weighs 147 lbs, and has three burners. BonzaTM 4 measures approximately 64 x 26 x 43 inches, weighs 174 lbs, and has four burners. Among other things, the Bonza Grills feature a porcelain-coated steel hood and bowl, cast iron grids and burners, a matchless ignition system, a built-in heat indicator, an easyclean drip pan, and a polyurethane-coated hardwood cart with wheels.
CBP is proposing to issue HQ 967090 in order to revoke NY G85307 and reclassify the Bonza Grills under HTS 7321.11.6000 as "other cooking appliances and plate warmers for gas fuel or for both gas and other fuels" rather than under HTS 7321.11.1060 which provides for "other portable cooking appliances and plate warmers for gas fuel or for both gas and other fuels."
CBP states that the Bonza Grills are not considered by the industry to be portable and are designed for relatively fixed patio use. While the grills' hardwood cart with wheels may enable the grill to be rolled around the patio or yard, the wheels were not designed to and do not make the grills portable. CBP also finds that the Bonza Grills are too big and heavy to be carried by hand and are not designed to be transported for away-from-home activities. Furthermore, the grills have considerably more features than grills normally considered to be portable, including hardwood carts, ignition systems, built-in heat indicators, etc.
Therefore, CBP states that the Bonza Grills should be classified in HTS 7321.11.6000.
proposed: 7321.11.6000, duty-free; current: 7321.11.1060, 5.7%.
Grant of "Lever-Rule" Protection to Frito-Lay for Certain Snack Foods
CBP has issued a notice announcing that it has granted "Lever-Rule" protection to Frito-Lay for the following gray market snack foods: Cheetos, Sabritones, Doritos, Sabritas, and Churrumais.
CBP has determined that the gray market Cheetos, Sabritones, Doritos, Sabritas, and Churrumais differ physically and materially from their correlating snack foods authorized for sale in the U.S. in the following respects: the ingredients used, the absence of allergy warnings (in the case of Cheetos and Churrumais), the lack of quality control, the bag size and the measurement system used, the non-compliance with the labeling requirements of the Food and Drug Administration (FDA), and the use of Spanish rather than English on the packaging.
According to CBP, importation of the subject snack foods is restricted, unless the labeling requirements of 19 CFR 133.23(b) are satisfied.
(See ITT's Online Archives or 06/09/03 news, 03060950, for BP summary of CBP's notice announcing receipt of Frito-Lay's application for Lever-Rule protection.)
(In light of the 1993 court decision in Lever Bros. Co. v. U.S., CBP issued a final rule (T.D. 99-21) in February 1999 that, upon application by the U.S. trademark owner, restricts the importation of certain gray market articles that bear genuine trademarks identical to or substantially indistinguishable from those appearing on articles authorized by the U.S. trademark owner for importation or sale in the U.S., and that thereby create a likelihood of consumer confusion, in circumstances where the gray market articles and those bearing the authorized U.S. trademark are physically and materially different. Such restricted gray market articles are denied entry and subject to detention unless labeled as provided in 19 CFR 133.23(b). See ITT's 02/24/99 news, 99022325, for BP summary of T.D. 99-21.)
June 30, 2004 CBP Bulletin (Vol. 38, No. 27) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2004/vol38_06302004_no27/