It actually happened: Piers Morgan made a good point for once.
— Piers Morgan (@piersmorgan) October 3, 2017
America’s founding fathers, in their wisdom, never saw fit to include “the right to low-quality European chocolate with cheap toys you’ll be stepping on for weeks thereafter” in the Bill of Rights. But why can’t Kinder Surprise Eggs be sold in the United States, anyway?
As with most American stories, the answer involves a lot of corporate intrigue and legal wrangling:
Since production began in 1974, the company has sold more than 30 billion Kinder Surprise eggs around the world. But in the United States, they are prohibited by Section 402 (d)(1) of the 1938 Federal Food, Drug and Cosmetic Act, which bans any candies with non-nutritive objects “embedded” inside them.
Though the original law is nearly a century old, it came up for debate in the 1990s. In August, 1997, Kreiner Imports Inc. of Chicago said it would voluntarily recall 5,000 Kinder eggs to cooperate with the U.S. Consumer Product Safety Commission (CPSC.)
It was the same year that Nestle USA Inc and Mars Inc. went to war over a copycat product. The Nestle Magic was a hollow chocolate globe surrounding a plastic shell with a Disney toy inside.
Though the Consumer Product Safety Commission ruled the candy didn’t violate its safety regulations, the Food and Drug Administration wrote to Nestle in July 1997 saying it violated the 1938 Food and Drug Act.
Leading the charge was an elite group of consumer lobbyists known for taking on big adversaries. Soon after Carol Tucker Foreman criticized the product, supermarket chain Stop and Shop announced it would no longer sell them. Also on the team was Connecticut State Atty. Gen. Richard Blumenthal, who called on officials to address the issue “before Nestle Magic could become Nestle tragic,” according to the L.A. Times. [Interestingly, Blumenthal is now one of the Senate’s leading voices in favor of gun control. – DJP]
Though Mars Inc. representatives originally denied involvement in the effort, the company later acknowledged that it had picked up the tab, according to the Times.
In September 1997, Mars executives wrote a letter to the Food and Drug Administration saying it had joined critics because “we care about the public interest,” according to the Washington Post. A month later, Nestle announced that it would discontinue sales of its competing product, telling the L.A. Times that the company felt its candy was safe but took it off the market due to “an unresolved technical, legal problem.”
In 2013, Mars Inc. spent $1.99 million on lobbying efforts, according to data from the Senate Office of Public Records that was compiled by OpenSecrets.org. Nestle spent a total of $4.8 million in the same year, with the vast majority going toward food processing and sales.
The 1997 fight wasn’t the first time toy-filled chocolate eggs came under fire. In 1989, the candies were discussed in British Parliament after a child died from choking on a small piece.
The good news for American children, if not their parents, is that a similar Kinder product will soon be available in their country:
In 2018, Ferrero International will release the “Kinder Joy” in America. Unlike the Kinder Surprise it has two distinct, sealed halves. One half contains the mystery toy, and the other half is filled with chocolate, milk-crème, and chocolate wafer bites. This tweak of having the toy and chocolate packaged in separate sections makes this version of the Kinder egg adhere to the FDA regulation.
The Kinder Joy was originally developed to sell the chocolate treats in warm-weather markets (such as India, China and Korea) where the traditional exposed chocolate egg melted.
It’s better than nothing, I guess, but if President Trump wants to get rid of allegedly useless and outdated regulations, I know where he can start.