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March 26 2013

The Kinder Egg Kerfuffle

The Daily Caller
Jennifer Marsico

It looks like American children will be finding a little nanny-statism in their Easter baskets this week.

Just in time for the Easter holiday, the U.S. Food and Drug Administration approved the sale of Choco Treasure, a small chocolate egg with a toy-filled plastic capsule inside. That’s great news, but it’s also a reminder of what is still not permitted in the United States: Kinder Surprise, or Kinder Eggs. Kinder Eggs are banned in the U.S. because they are deemed a choking hazard.

Much like Choco Treasure, Kinder Eggs are small eggs comprised of a thin chocolate shell with a small plastic capsule inside containing a toy. The import and sale of Kinder Eggs has been illegal in the United States since 1997, when the U.S. Consumer Product Safety Commission (CPSC) announced that the small parts in Kinder Egg toys were dangerous to children under the age of three. At the time of this recall, there had been no reports of any injuries from the eggs.

Additionally, Kinder Eggs are illegal in the U.S. by way of the Federal Food, Drug, and Cosmetic Act of 1938, which outlaws candy with any object embedded that doesn’t serve a function, unless the FDA provides a specific exception.

Hence, the functional sticks in lollipops are A-OK, but the embedded capsules in Kinder Eggs, having no functional purpose, are not. Choco Treasure is FDA-approved because its capsules are designed with a plastic seam that is visible on the outside of the chocolate shell — it is not “completely embedded” within the chocolate, as Kinder Egg capsules are.

Normal consumers may see this as an arbitrary distinction and one of those laughable, antiquated government rules. Yet the implementation of the ban is no laughing matter. Those who attempt to bring Kinder Eggs through U.S. customs, either knowingly or unwittingly, will not only have their candies confiscated, but they are subject to hefty fines. For instance, two Seattle men who tried to bring a half dozen of the eggs back from a trip in Canada last summer were told by U.S. border agents upon confiscation that each of the eggs was subject to a $2,500 fine. While the men were released without having to pay the fine, this story shows the lengths to which the U.S. government will go to keep these eggs out of the country — and this tale is only one of many. According to U.S. Customs and Border Protection, more than 60,000 Kinder Eggs were seized from baggage and international mail in fiscal year 2011.

Food and drug regulations exist for the very important reason of protecting Americans from ingesting items that could harm them. But any decisions about product safety depend on determining the delicate balance between risk and freedom. Of course, any death resulting from the misuse of a product is tragic, but banning products that pose minimal risk gives government responsibilities that used to lie in our hands.

Back in 1997, another toy-embedded-in-chocolate debate was waged in Congress over the now-discontinued Nestle Magic candy, a chocolate ball with a small toy inside. Though the chocolate was deemed safe by the CPSC, Representative Rosa DeLauro (D-CT) maintained that by selling the candy, Nestle was engaging in “an abdication of corporate responsibility.”

But what about personal responsibility? Ferrero, the parent company of Kinder, has taken great pains to ensure its eggs and the toys within are safe; for example, Ferrero no longer produces toys with magnets, or toys that resemble food products. The eggs and toys are considered safe by governments throughout the E.U., as well as in Canada and Mexico. It is difficult, then, to see how the U.S. Kinder Egg ban shows anything but a lack of government faith in the ability of parents to care for their own children.

It will be good to see a Kinder Egg-esque product on U.S. shelves, but it would be even better if the U.S. government trusted us with the real thing.

Jennifer Marsico is a visiting fellow at the Independent Women’s Forum.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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