The 1938 Federal Food, Drug, and Cosmetic Act contains a section highlighting that a confectionery product with a non-nutritive object, partially or totally imbedded within it, cannot be sold within the United States, unless the FDA issues a regulation that the non-nutritive object has functional value. Essentially, the 1938 Act bans “the sale of any candy that has imbedded in it a toy or trinket.”
In 2012 the FDA re-issued their import alert stating “The imbedded non-nutritive objects in these confectionery products may pose a public health risk as the consumer may unknowingly choke on the object.”
In 1997, the staff of the CPSC, the Consumer Product Safety Commission, examined and issued a recall for some Kinder Surprise illegally brought into the US with foreign labels. The staff determined that the toys within the eggs had small parts. The staff presumed that Kinder Surprise, being a chocolate product, was intended for children of all ages, including those under three years of age. On this basis, the staff took the position that Kinder Surprise was in violation of the small parts regulation and banned from importation into the US.
Kinder Surprise bears warnings advising the consumer that the toy is “not suitable for children under three years, due to the presence of small parts” and that “adult supervision is recommended.”
In June 2012 the potential fine per egg was quoted as US$2,500. The rationale against a ban of the product also takes the form that deaths have been too few for it to be considered a serious danger. Additionally, the argument is made that there should be a consistent standard in place, as several worse dangers are not regulated.
On December 26, 2012, a petition was created on the White House website through the “We The People” campaign to end the ban on the import and sale of Kinder Surprise Eggs in the United States. However the petition failed to meet the required number of signatures by January 26, 2013 and was therefore declined.