I received the following responses to my article, The Ultimate Bull: Country of Origin Marking. It's amazing how a tiny black stress bull can generate such an outpouring. I thank in particular two authors (who will remain anonymous) for keeping the flame of interest burning and for demonstrating that all of us, including the Government, have a little bull inside of us.
Here's their comments:
Re: The Ultimate Bull: Country of Origin Marking
At the risk of adding to your stress, may I point out another special marking concern. From the picture, it appears that the bull's back is stamped with the marking: "USDA APHIS PPQ, Dallas, Texas." This might lead one to mistakenly believe that this is just local bull.
Section 134.46 of the Marking Regulations provides that "[i]n any case 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 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.
CBP would likely have a beef with this imported bull.
Oscar, I enjoyed your article on the PPQ tiny black stress bull, and I’ve been presented with give-aways by CBP itself at the Trade Support Network plenary sessions that were not legally marked, but in this case the transgression is much worse than you indicated. The goods do not fall into the category of NLM, but rather are deceptively marked. See 19 CFR 134.46. You also forgot in your article to indicate in which title your citation applied.
Everybody imports, especially the federal government. Or so that is the lesson that I decided to take away from a tiny black stress bull handed me by another lawyer in my firm. Funny, “stress” and “bull” seem to naturally go well together, don’t they? The USDA is using these diminutive, plasticine bovine to promote its Plant Protection and Quarantine (PPQ) program. It’s pretty cool when a federal government agency hands out promotional products, but I don’t get why it’s doing it. Why promote? Why the carrot? It’s not as if importers and exporters have a choice to participate in PPQ. Everyone's shipments are screened under PPQ. It’s as if the TSA handed out t-shirts to promote its x-ray screening at the airport or your local police department gave out tote bags to promote its use of laser speed guns.
Maybe the USDA is using tiny black stress bulls to liven up the drab sameness of just another bureaucratic hurdle. Maybe it is just having fun. You have to agree, the tiny black stress bull is cute, in a sort of menacing way. Or maybe the agency sensed that a terrible dread is building up within the trade community in anticipation of the PPQ program, and the only answer is to hand out these babies in the hope of breaking up the anxiety. The USDA, like many others, wrongly and tragically thought that stress balls or stress toys reduce stress, when they, in fact, induce stress in otherwise tranquil humans. Take me for example; I freaked when I squeezed my tiny black stress bull and it’s leg almost fell off. I don’t need that kind of aggravation to compound my already pressurized day.
Other than my being bothered by an unseemly fragility of such a macho animal, I have additional issues with my tiny black stress bull (I apologize that I keep repeating myself, but I may never again get an opportunity to say tiny black stress bull).
PPQ is about, in part, import and export enforcement, is it not? USDA imposes strict requirements on importers and exporters, does it not? You should expect the agency, therefore, to be sensitive to and comply with those very regulations, would you not? [Here I will assume that you answered all questions in the affirmative; if not, please secure your own tiny black stress bull from the USDA and ignore the rest of my commentary].
Ladies and gentlemen of the jury, I show you Plaintiff’s exhibit 1, a picture of the country of origin marking for the tiny black stress bull.
We will not deal for the moment with the ethical implications of a federal enforcement agency's failure to purchase domestic products and thereby piling on the nation’s trade deficit. Instead, I focus your attention on the label with China on it. Are you having a hard time seeing it? Exactly! The manufacturer or perhaps the importer placed the label in, ahem, that region that is the most sensitive and pronounced for any bull (other than its horns, a clue in itself), just south of its belly button, if bulls had belly buttons. If you have not yet found it, look to the upper right hand side of the photo. In most bulls, you would be able to see the label easily, but not our tiny black stress bulls. More alarming still, the label is the flimsiest of stickers, just waiting for the slightest moisture or pressure to peel it away from the product it limply identifies.
Section 134.11 of the US Code of Federal Regulations requires that imported items be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article will permit. Does our tiny black stress bull meet all, or any, of these elements? Is the China label conspicuous and legible? Yes, but only if you discount the intense squinting and the magnifying glass that are required to find it. Is the label indelible and permanent? This one is harder to judge since I’ve had the tiny black stress bull only for about seven hours, but I would be surprised if the label was still there in the morning, especially not if the cat finds my tiny black stress bull. Perhaps the “as the nature of the article will permit” language of the regulation will save this label from violating the law, but what is the nature of a polymer stress ball? How can an artificial construct, an offspring of the BP oil spill, if you will, even have a nature? Suddenly we find ourselves in the arena of philosophy, a discipline well beyond my expertise or taste, and an activity that makes my head hurt and my heart palpitate.
Quick, where’s my tiny black stress bull!
Principal and a founding member of GRVR Attorneys.