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Why Can’t You Buy Kinder Surprise In America?

It’s a treat that’s instantly familiar to anyone who spent time outside the US as a child: a foil-covered egg about the size of a real chicken’s egg, with a fragile shell made from layers of milk and white chocolate surrounding a small, yellow plastic oval. Pop open that fake yolk, and you’ll find a series of tiny plastic parts, designed to be assembled into an ingenious toy with bright colors and moving parts.

Cross the border into America, and the Kinder Surprise becomes contraband: the Federal Food, Drug, and Cosmetic act banned “the sale of any candy that has embedded in it a toy or trinket” back in 1938. Despite the legal limitations, the treat has been so sought after in the U.S. that armed officials have seized tens of thousands of the eggs at the U.S.-Canada border and federal agents have raided stores suspected of selling illicit candy. 

Seattleites have made headlines after being busted at the border; many visitors to Canada don’t realize that smuggling these candy products carries a fine of up to $2,500 per egg. The eggs’ illicit status is so legendary that the Moms Demand Action campaign against gun violence posed a child holding a Kinder egg next to a child holding an assault rifle, telling viewers that only one of the two items had been banned in America for the purpose of protecting children.

Was The Food And Drug Administration Right To Ban Kinder Eggs?

Various attempts to work with the Food and Drug Administration to create an egg that meets U.S. Safety standards have been less than successful, in part because of the act’s confusing rules and in part because U.S. companies have struggled to replicate Kinder’s combination of high-quality chocolate, well-designed toys, and the nostalgia factor of parents who pass the tradition of eating Kinder Eggs on to their children.

A study of the European Registry of Foreign Bodies Injuries found that only 6 percent of parents believed it was appropriate to give Kinder Eggs to children below the suggested age and the majority were sufficiently aware of the dangers of leaving their children unattended around small objects like toys, staples, and coins. 

Have There Been Deaths Due To Kinder Eggs?

French police have now confirmed that a 3-year-old girl died near Toulouse after suffering from airway obstruction after putting a “toy with wheels” in her mouth. The eggs come with warnings to parents against giving the eggs to children under three; they are typically marketed at children aged five to ten. This is not the first time that a child has died after choking on a small part of a Kinder Surprise toy.

In this case, since the child choked on the toy within the plastic “yolk” and not on the container itself, the legal battle may revolve around whether the toy was too small for a child of that age or whether the fact that the toy came encased in chocolate led the child to believe that it was safe to eat.

The author of this article still has her collection of metal soldiers from Kinder Eggs—which were purchased and consumed legally in a European country.

Chris Davis
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Chris Davis is the founder of Davis Law Group, P.S. in Seattle, WA.