Jharel S. asks: Is it true that Kinder Surprise are illegal in America?

For the uninitiated, Kinder Eggs are a chocolate treat widely available throughout Europe, Mexico and Canada, with the company that makes them, Ferrero (perhaps better known in the U.S. for being the makers of Nutella), selling a whopping 1.5 billion of the eggs per year. Where they don’t sell any is the United States, where the eggs are indeed illegal (though something of a blackmarket does exist for them). So why is a beloved candy the world over explicitly banned in the land of the free?

In a nut-or in this case egg-shell, Kinder Eggs are illegal in the states because they break a rule in the 1938 Food, Drug and Cosmetic Act. Regarded as a “watershed in US food policy” the act was drafted to protect the public from unscrupulous, or sometimes just negligent, manufacturers. It was made law on the back of several highly publicised cases of poisoning, most notably the deaths of 107 people (the majority of whom were children) in what became known as the The 1937 Elixir Sulfanilamide Incident.

It had long been known that the previous laws the FDA were operating under, most notably the Pure Food and Drugs Act of 1906, were woefully inadequate for protecting consumers, but the Elixir Sulfanilamide Incident sparked major public awareness of the issue. So what happened?

Although “sulfanilamide” sounds like a terrifying chemical to ingest, it’s actually a perfectly safe antibiotic when administered properly, and was used, among other things, at the time to good effect at treating streptococcal infections. (It was later massively beneficial in reducing infection and mortality rates in WWII.) However, in an attempt to create a liquid version of the drug (it normally came in either powder or tablet form), the lead chemist at S.E. Massengill Company, Harold Cole Watkins, mixed it with diethylene glycol, commonly used today in antifreeze and as a solvent.

At the time, it was known that diethylene glycol was highly poisonous to humans (most notably causing kidney failure), but this had only recently come to light, and Watkins did not know this when he decided to use it in the company’s elixir. He chose it owing to how well sulfanilamide dissolved in the substance and because diethylene glycol tastes slightly sweet.

In this case, even animal testing would not have been required to discover the substance was toxic. Watkins would have merely needed to do a surface level look into the compound, with several previous published studies noting diethylene glycol, even in relatively small doses, would cause kidney damage and potentially failure of said organ. But no such due-diligence research nor testing to determine the safety of such an elixir before putting it on the market was required at the time.

Blissfully unaware that they were about to start selling a tasty tonic of death to their customers, S.E. Massengill sent out 633 shipments of the elixir in the autumn of 1937 to pharmacists across the nation.

It didn’t take long for disturbing reports to begin coming in, including news of deaths trickling back to S.E. Massengill Co, resulting in them issuing telegrams requesting the elixir be sent back for a full refund, though not disclosing to pharmacists the seriousness of the issue if they ignored the telegram.

This all was capped by a short and truly heart wrenching letter by one Marie Nidiffer to President Franklin D. Roosevelt describing what happened in the days following administering the drug to her 6 year old daughter, who at the time was suffering from a sore throat:

The first time I ever had occasion to call in a doctor for [Joan] and she was given Elixir of Sulfanilamide. All that is left to us is the caring for her little grave. Even the memory of her is mixed with sorrow for we can see her little body tossing to and fro and hear that little voice screaming with pain and it seems as though it would drive me insane. … It is my plea that you will take steps to prevent such sales of drugs that will take little lives and leave such suffering behind and such a bleak outlook on the future as I have tonight.

As for Dr. Samual Evans Massengill, who owned S.E. Massengill Co., he responded to the many dozens of deaths caused by his company’s negligence by issuing the following statement:

My chemists and I deeply regret the fatal results, but there was no error in the manufacture of the product. We have been supplying a legitimate professional demand and no one could have foreseen the unlooked-for results. I do not feel that there was any responsibility on our part…

Needless to say, when all this came to light, the public were more than a little outraged, with S.E. Massengill’s somewhat brazen statement that his drug company wasn’t responsible for making sure their products weren’t simply poison at the recommended dose before selling them only fanning the flames.

To add to the tragedy, it appears Harold Watkins did not quite have the clear conscience of Dr. Massengill, with Watkins sadly committing suicide not long after it came to light that his error had resulted in the deaths of over 100 people.

In the end, the Elixir Sulfanilamide Incident was the final straw, spurring the 1938 Federal Food, Drug, and Cosmetic Act to hopefully prevent such a tragedy from occurring again. Among other things, the Act required that for the first time in US history, drug makers had to demonstrate to the FDA that drugs were reasonably safe before they could be marketed to the public, set standards for how different kinds of food should look and be packaged, and specified legal maximums for “certain poisonous substances” commonly added to food and drink at the time.

So what does any of this have to do with Kinder Surprise?

The Act also included a small section explicitly banning the sale of any confectionery that contains either alcohol (except in limited quantities, as an amazing number of things we all eat every day actually contain trace amounts of alcohol) and banning any consumable product that:

“has partially or completely imbedded therein any nonnutritive object, except that this subparagraph shall not apply in the case of any nonnutritive object if, in the judgment of the Secretary as provided by regulations, such object is of practical functional value to the confectionery product and would not render the product injurious or hazardous to health;”

The exceptions mentioned are things like the stick of a Tootsie Pop which is embedded in the candy item, but serves a purpose and otherwise has been deemed not to make the product dangerous.

Kinder Eggs, on the other hand, are essentially a chocolate, egg-shaped shell that contains a hard plastic egg, inside of which is a small toy. The toy does not serve a “practical functional value to the confectionery” and has been deemed by the FDA to be injurious, specifically as a choking hazard.

That said, as many critics of this banning point out, countless children choke on things like hotdogs and large hard candy items every year and nobody’s calling for it to be made illegal to sell hotdogs or gobstoppers. Or, more to the point, critics note that children are given chokeable toys all the time- and occasionally choke on them- but nobody’s calling for a banning of all toys that may get stuck in a person’s windpipe. It’s also noted by critics of this particular banning that the packaging, as with so many toys that are a potential choking hazard, have a warning on them not to give the Kinder Surprise to children under 3 because the toy inside presents a choking hazard.

Given the many billions of Kinder Surprise eggs sold since their creation in 1974, this may have you wondering if they have ever been the cause of a child’s death due to choking. The answer there is actually yes, there are a handful of such occasions- though it appears never having to do with a child eating the egg and not realizing there was a toy inside. (The size of the egg makes that scenario an unlikely proposition.)

Most recently, in 2016 there was the sad case of a 3 year-old girl in Saing-Elix-le-Château, France who choked to death on one of the toys contained in a Kinder Egg. Paramedics were able to resuscitate her, but she later died of brain damage caused by asphyxiation.

Yet another “recent” case we could find, (somewhat illustrating the rareness of this) is one in 1985 in the UK, where a 3 year old boy, Roddy John Breslin, choked to death on the wheels and axle of the toy inside the egg. (The toy was meant to be constructed by the child.) However, after investigation into whether this particular confectionery should be banned, the UK Department of Trade and Industry issued a report, among other things noting,

… the death did not occur as a result of the child biting into the egg, and it appears that eating the egg and swallowing the set of wheels were separate events… It is an unfortunate fact that the world is full of small objects which can cause the death of a child by choking. This tragic death emphasizes again the need for parental vigilance.

Needless to say, they didn’t choose to ban the Kinder Surprise.

That said, supporters of the FDA’s position on this one note that while it’s true that kids are apt to choke on little toys, whether they’re encased in a chocolate egg or not, they are perhaps more likely to do so if in the mindset of finding the toy packaged with a tasty treat- if young enough, potentially even not understanding that the toy inside is not also something to eat. Of course, nobody’s lobbying for the banning of toys in Happy Meals or non-edible birthday cake decorations on these grounds as far as we are aware.

Unsurprisingly, this law has been challenged, most notably by Nestle, who in 1997 introduced a product called Nestle Magic (essentially a not-so-subtle ripoff of the Kinder Surprise, comprising of a chocolate ball with a plastic casing inside that contained a tiny Disney character toy).

When Nestle was preparing to launch the product, the FDA explicitly notified them it was illegal under the 1938 Federal Food, Drug, and Cosmetic Act, but Nestle disagreed, noting the product was completely safe so should be considered one of the exceptions. Their position was backed by a report from the Consumer Product Safety Commission, who did their due diligence on the candy and determined it, and the non-edible item inside, were not a choking hazard.

Despite the warning from the FDA, Nestle launched the product a month after the FDA contacted them about it. A spokesman for Nestle, then vice president for corporate and brand affairs, Laurie MacDonald, stated they decided to move forward with the product “because we believe it’s legal. We believe we have an honest disagreement on a technical issue.'”

Nestle also attempted a political lobbying blitz to change the law, including trying to get Congress to embed wording in an Agricultural Appropriations bill that would have made their product legal, with Representative George Nethercutt of Washington state, whose district just so happened to include a large Nestle plant employing hundreds of voters, championing the tweak in wording.

A heated legal battle was waged, with Mars (Nestle’s chief rival in the states) leading the charge against Nestle. Although Mars ultimately claimed to be acting out of concern for the public, they initially denied having anything to do with the campaign to confirm the candy was illegal. It was only later that it emerged that Mars had, in fact, attempted to fund the case put forward by public interest groups, at first behind the scenes before their involvement was discovered. They also initiated their own lobbyist blitz to convince the appropriate politicians that Nestle Magic was dangerous (no doubt, to Mars’ bottom-line).

Ultimately Nestle was forced to take the product off the shelves, with precedents such as this making it practically guaranteed that Kinder Eggs will, at least for the foreseeable future, not be available for sale in the United States.

This has resulted in a small, but thriving black market for the candy due to the toys inside being highly collectable, as well as the fact that it makes for a great candy to put in an Easter basket particularly. In fact, United States’ customs agents note that they see a massive upswing in attempts to bring the candy into the country around Easter.

They also warn that attempting to do so, even if it’s just for your own personal use and not you trying to use the eggs for commercial purposes, can see you slapped with a massive fine. For example, in one case a couple returning to the United States from Canada was fined $12,000 dollars for trying to bring 10 Kinder Eggs into the country, to be eaten by their own school aged kids.

This said, such heavy-handed punishments are rare and in most cases the eggs will simply be confiscated by customs agents. However, according to a self-described Kinder Egg smuggler called Joe Wos, he has on at least one occasion been allowed to enter the US with the toys contained inside Kinder Eggs. In this case, the customs agents in question made him eat all of the eggs, rather than just allowing him to discard the chocolate in the trash and take the toys. Wos noted that “They wanted to see me suffer, so I had to eat 20 chocolate eggs.”

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Bonus Facts:

All is not lost for Ferrero, however, in their attempt to gain a foothold on the lucrative American confectionery market. Starting in 2018, they will be offering a variation of the Kinder Surprise in the United States. Contrary to many-a-news report, this is not actually just a Kinder Surprise with the toy packaged separately. The egg shaped packaging does indeed internally have two separated halves, one containing a toy, and the other containing the candy, but in this case, rather than a hard chocolate, the other half contains chocolate cream, a little spoon, and two wafer balls floating in the cream- so a quite different product, though still containing a toy and the packaging being roughly egg shaped. This product, of course, doesn’t get around the supposed issue of children of the particularly young persuasion misinterpreting the whole thing as something to eat, not just the chocolate part, but does get around the 1938 law. The Kinder Joy was first sold as a variation of the Kinder Surprise in markets where the chocolate egg tended to melt before finding its way into a consumer’s mouths.

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