June 6, 2007 CBP Bulletin Notice on NAFTA Marking of Sinucleanse Packets

Proposed modification of ruling; proposed revocation of treatment. CBP is proposing to modify one ruling on the NAFTA marking of Sinucleanse packets. CBP is also proposing to revoke any treatment it has previously accorded to substantially identical transactions.

CBP states that any party who has received a contrary written ruling or decision on the merchandise that is subject to the proposed ruling modification, or any party involved with a substantially identical transaction, should advise CBP by July 6, 2007, 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 this notice.

In addition, CBP states that this notice covers any rulings on the subject merchandise that may exist but have not been specifically identified.

Sinucleanse packets. The merchandise is described as SinuCleanse, a medicament consisting of two ingredients: sodium chloride and sodium bicarbonate. The product is indicated for use as a nasal wash to eliminate mucus buildup, improve nasal breathing, and obtain relief from sinus conditions. The product will be imported in granular form put up in sealed packets, each containing 700 mg of sodium bicarbonate (approximately 23% of the final product) and 2300 mg of sodium chloride (approximately 77% of the final product). The packets, in turn, will be put up packed for retail sale in sealed, paperboard containers that contain either 40 or 60 packets per container. The sodium chloride ingredient will be of U.S. origin and the sodium bicarbonate ingredient will be either of U.S. or Mexican origin. In Mexico, the two ingredients, in apportioned amounts (77/23%), will be blended together, with 3 grams of the blended mixture eventually being placed into an individual packet, which is then sealed and exported to the U.S.

CBP is proposing to issue HQ H008509 in order to modify NY N005780 and change the country of origin determination to the U.S. rather than Mexico, and to reflect the proper marking requirement for the merchandise pursuant to new analysis. In NY N005780, CBP stated that "neither the sodium chloride nor the sodium bicarbonate can be said to impart the essential character to the good" because both ingredients are listed as "active" ingredients, and both are necessary to create the cleansing rinse. CBP now proposes that statement is incorrect and that the sodium chloride imparts the essential character.

CBP cites 19 CFR 102.18(b)(2) which states: "For purposes of determining which one of two or more materials described in paragraph (b)(1) of this section imparts the essential character to a good under 19 CFR 102.11, various factors may be examined depending upon the type of good involved. These factors include, but are not limited to, the following:

(i) The nature of each material, such as its bulk, quantity, weight or value; and

(ii) The role of each material in relation to the use of the good."

The sodium chloride constitutes almost 77% by weight of the final product. Further, when the mixture is added to water by the ultimate purchaser and used as a sinus rinse, it is the sodium chloride that accounts for the sinus cleansing action. The sodium bicarbonate adjusts the pH of the resulting solution so that it does not cause pain, stinging or discomfort for the user. Therefore, CBP now finds that the sodium chloride should be determined to impart the essential character of the merchandise.

proposed country of origin: U.S.; current country of origin: Mexico

June 6, 2007, CBP Bulletin (Vol.41, No. 24) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2007/