In 1938, the Federal Food, Drug, and Cosmetic Act prohibited the embedding of non-nutritive items in confections. This obscure law has resulted in a ban on a popular childhood treat that is sold in over 100 countries around the world. The Ferrero Kinder Egg became a part of family tradition in 1972. Its delicious chocolate shell surrounds a sealed plastic capsule which holds a small toy or puzzle. The eggs are marketed to kids ages three and up and are as widely proliferated and recognizable to children across the world as McDonalds Happy Meals are to our kids.

In 1997, the US Consumer Product Safety Commission recalled Kinder Eggs from shelves in stores across the United States. Citing this 1938 law, Sec. 402. [21 USC 342] Adulterated Food

Note: revisions were posted to this section in December 2007.

A food shall be deemed to be adulterated

(d) Confectionery containing alcohol or nonnutritive substance. If it is confectionery, and

(1) 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;

We believe the intent of this law is to protect people from objects hidden in food of which they are not aware. Ferrero Kinder Surprise Eggs are clearly labeled and marketed as having a toy inside.  The toys are secured in a plastic capsule that is not easy to open and too large to swallow.  Parents have the responsibility to protect their children from all types of dangerous items around the house 24 hours a day. We do not believe the introduction of this treat adds any new level of threat. Since the adult who purchases the egg knows there is a toy inside, the toy can be supervised with less effort than administering a child his first solid food, preparing for losing a first tooth, or any number of parenting challenges we are able to navigate every day. In addition, each Kinder Egg is clearly marked with a label stating the toy is not intended for ages 0 to 3. The labels have the exact same image warning as other products currently sold in the United States.  This warning puts the burden of responsibility on the purchaser.

Since 1997, there have been 7 documented cases of children fatally choking on the toys inside the eggs.  If you factor in the 30 billion made since 1991, you get a .023% mortality rate.  The mortality rate for lightning strikes in the United States from 1995 to 2006 is .2%.  (http://www.bls.gov/iif/oshwc/cfoi/jeh5_05_45-50.pdf)
2011 Customs and Border Protection sent out a reminder that the eggs are illegal.  (http://www.cbp.gov/newsroom/national-media-release/2012-04-05-040000/dont-be-surprised-kinder-eggs-seizures-double)  Note that “In fiscal year 2010, CBP seized nearly 25,000 Kinder Eggs in 1,700 separate incidents. While there are some commercial-sized seizures that occur, most Kinder Eggs are seized in personal baggage or at mail and express consignment facilities.”  Ferraro sells 1.5 billion eggs worldwide each year.

In fiscal year 2011, over 60,000 Kinder eggs were confiscated.  I’m sure that our border patrol agents and postal workers have more important things to do with their time than search for chocolate eggs.  Each egg can warrant a fine of $2,500.  The fine for one ounce of marijuana is $500.  One ounce of cocaine or heroin is $1,000.  Ridiculous enough?  If not, add this in – when the postal service confiscates an egg, they send out a nine page letter to the recipient.  Nine pages of wasted paper, ink, and postage.  Another waste of time and money is the raids on stores that have been conducted on behalf of the Consumer Product Safety Commission.

The grassroots movement, Free The Egg, contacted the Consumer Product Safety Commission in 2011.  (You can read the full correspondence at http://freetheegg.wordpress.com/2011/04/27/cpsc-responds-to-my-email/)  The CPSC stated, “The CPSC staff considered the toys marketed with Ferarro Kinder Surprise Eggs to be intended for children under three years of age.”  The package marketing for the chocolate egg and toy are clearly for those over the age of three.  We question if the CPSC’s decision was within legal bounds.  They overrode a company’s clear intent.  Their complete answer defies logic.
We ask you to please look into this matter and help us restore the Ferrero Kinder Egg to shelves in the United States. This small matter can bring joy to millions of American children.  For further information and documentation of the facts above, please visit www.FreeTheEgg.com  You can also view a petition that has been signed by over 4,000 Americans at http://www.petitiononline.com/freeegg/petition.html