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Why are Kinder Surprise Eggs illegal in the USA?



Announcing the arrival of Valued Associate #679: Cesar Manara
Planned maintenance scheduled April 17/18, 2019 at 00:00UTC (8:00pm US/Eastern)The assault weapon ban recently expired in the USA, what did it ban?Do any countries beside the US prohibit the sale of Kinder Surprise eggs?Why do the USA and the European Union treat GMOs so differently?How can one not be able to resign?Is it illegal to be a communist in South Korea?Why is the US still in a state of emergency?how are governments approaching the “bathroom laws” globally?Why hasn't the USA and EU lifted the arms export ban on China?Why the USA wants to risk a conflict with Russia by preparing military interventions in SyriaWhy are drinking laws so strict in the USA?












24















In the USA, Kinder Surprise Eggs are banned by the government. What is the reason?










share|improve this question




















  • 10





    en.wikipedia.org/wiki/Kinder_Surprise#United_States

    – Martin Tournoij
    22 hours ago






  • 19





    Huh, I was always taught to open the egg first, take the plastic holder out and then eat the chocolate only. Must be a generation thing.

    – Joseph
    17 hours ago






  • 9





    How is this a question about politics?

    – David Richerby
    17 hours ago






  • 22





    @DavidRicherby - asking about why a law is the way it is can be considered about politics.

    – Alexei
    16 hours ago






  • 3





    given the new interest in regulating "loot box" gambling, I suspect they may be regulated in even more countries soon.

    – Erin B
    11 hours ago


















24















In the USA, Kinder Surprise Eggs are banned by the government. What is the reason?










share|improve this question




















  • 10





    en.wikipedia.org/wiki/Kinder_Surprise#United_States

    – Martin Tournoij
    22 hours ago






  • 19





    Huh, I was always taught to open the egg first, take the plastic holder out and then eat the chocolate only. Must be a generation thing.

    – Joseph
    17 hours ago






  • 9





    How is this a question about politics?

    – David Richerby
    17 hours ago






  • 22





    @DavidRicherby - asking about why a law is the way it is can be considered about politics.

    – Alexei
    16 hours ago






  • 3





    given the new interest in regulating "loot box" gambling, I suspect they may be regulated in even more countries soon.

    – Erin B
    11 hours ago
















24












24








24


2






In the USA, Kinder Surprise Eggs are banned by the government. What is the reason?










share|improve this question
















In the USA, Kinder Surprise Eggs are banned by the government. What is the reason?







united-states law government policy






share|improve this question















share|improve this question













share|improve this question




share|improve this question








edited 22 hours ago









Martin Tournoij

6,32333968




6,32333968










asked yesterday









Maika SakuranomiyaMaika Sakuranomiya

353215




353215








  • 10





    en.wikipedia.org/wiki/Kinder_Surprise#United_States

    – Martin Tournoij
    22 hours ago






  • 19





    Huh, I was always taught to open the egg first, take the plastic holder out and then eat the chocolate only. Must be a generation thing.

    – Joseph
    17 hours ago






  • 9





    How is this a question about politics?

    – David Richerby
    17 hours ago






  • 22





    @DavidRicherby - asking about why a law is the way it is can be considered about politics.

    – Alexei
    16 hours ago






  • 3





    given the new interest in regulating "loot box" gambling, I suspect they may be regulated in even more countries soon.

    – Erin B
    11 hours ago
















  • 10





    en.wikipedia.org/wiki/Kinder_Surprise#United_States

    – Martin Tournoij
    22 hours ago






  • 19





    Huh, I was always taught to open the egg first, take the plastic holder out and then eat the chocolate only. Must be a generation thing.

    – Joseph
    17 hours ago






  • 9





    How is this a question about politics?

    – David Richerby
    17 hours ago






  • 22





    @DavidRicherby - asking about why a law is the way it is can be considered about politics.

    – Alexei
    16 hours ago






  • 3





    given the new interest in regulating "loot box" gambling, I suspect they may be regulated in even more countries soon.

    – Erin B
    11 hours ago










10




10





en.wikipedia.org/wiki/Kinder_Surprise#United_States

– Martin Tournoij
22 hours ago





en.wikipedia.org/wiki/Kinder_Surprise#United_States

– Martin Tournoij
22 hours ago




19




19





Huh, I was always taught to open the egg first, take the plastic holder out and then eat the chocolate only. Must be a generation thing.

– Joseph
17 hours ago





Huh, I was always taught to open the egg first, take the plastic holder out and then eat the chocolate only. Must be a generation thing.

– Joseph
17 hours ago




9




9





How is this a question about politics?

– David Richerby
17 hours ago





How is this a question about politics?

– David Richerby
17 hours ago




22




22





@DavidRicherby - asking about why a law is the way it is can be considered about politics.

– Alexei
16 hours ago





@DavidRicherby - asking about why a law is the way it is can be considered about politics.

– Alexei
16 hours ago




3




3





given the new interest in regulating "loot box" gambling, I suspect they may be regulated in even more countries soon.

– Erin B
11 hours ago







given the new interest in regulating "loot box" gambling, I suspect they may be regulated in even more countries soon.

– Erin B
11 hours ago












4 Answers
4






active

oldest

votes


















38














They have tiny pieces that are considered to be a choking hazard. There have been some high profile and tragic deaths among children due to choking on toys with small pieces. So the United States is especially stringent in regulating children's toys. The Kinder Surprise Eggs are considered especially dangerous as they are embedded in a food product. So a young child might think the toy is edible as well. Wikipedia.






share|improve this answer



















  • 39





    ...especially dangerous as they are embedded in a food product. - better start banning Avocados and Peaches, too.

    – Ian
    17 hours ago






  • 49





    I suppose young kids are smarter in the rest of the world... :)

    – Alessandro
    17 hours ago






  • 19





    @Ian If your Avocados and peaches have stones the size of the smallest Kinder surprise parts then you need to find a new supplier :-), || In New Zealand, where I live, we had a recentish high profile case where a child suffered mental impairment form asphyxia due to choking on sliced apple. Child deaths from apple is sadly well enough known world wide.

    – Russell McMahon
    16 hours ago






  • 24





    @DavidRicherby Not sure why you, as a Brit, laugh at the idea that the US has stringent regulations on anything. On the contrary, the US is full of regulations that seem insanely overbearing by UK standards, from California's "stick a lengthy cancer warning on virtually every object that exists" law to occupational licensing laws mandating (often expensive and time-consuming) qualification courses for low-skill working-class jobs like bartending or hairdressing. The US is no libertarian paradise; the idea of them restricting businesses in a way that we don't should not be shocking at all.

    – Mark Amery
    16 hours ago








  • 11





    The US is not alone in this - different countries prioritise different food safety issues, and some of those issues can be framed as having a protectionist angle. For instance EU vs US on chlorinated chicken.

    – Neil Slater
    15 hours ago



















32














Note that the manufacturer has worked around this ban by introducing the Kinder Joy




It has plastic egg-shaped packaging that splits into two, one half contains layers of cocoa and milk cream and the other half contains a toy.




Because the edible and non-edible parts are separated, this can and is sold in the US.



And since someone suggested in a comment protectionism might have been at play... That's unlikely in this case because the US law enacting this generic prohibition goes back to 1938; it was part of the Food, Drug, and Cosmetic Act enacted in the wake of the "Elixir" sulfanilamide scandal.
The Kinder Surprise was introduced in the late 1960s.



The law as summarized in a paper on this topic, authored by an FDA employee:




The regulations in the Federal Food, Drug, and Cosmetic
Act on the hazards of nonnutritive objects found in confectionary
products have been in effect since 1938. Specifically,
Section 342(d) (1) of the Act states, “If it is confectionery, and
has partially or completely imbedded therein any nonnutritive
object: Provided, That this clause 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.”




On the other hand, Nestle did lobby to have the US law changed in the 1990s when they introduced their "clone" Magic Ball product.




Nestle also attempted a political lobbying blitz to change the law, including trying to get Congress to embed wording in an Agricultural Appropriations bill that would have made their product legal, with Representative George Nethercutt of Washington state, whose district just so happened to include a large Nestle plant employing hundreds of voters, championing the tweak in wording.




They did not prevail though.



And since another answer brought up choking hazard: that is a somewhat different issue. Despite FDA's opposition, the Magic Balls were actually sold in the US for approximately two months (in 1997) because Nestle's product managed to pass the explicit choking tube test (16 CFR § 1501) of the U.S. Consumer Product Safety Commission. Mars (a competitor of Nestle) engaged however in counter lobbying through Carol Tucker Foreman, an former Assistant Secretary of Agriculture in the Carter Administration who argued that the Nestle product barely passed the CPSC choking test. Following her arguments numerous state attorney generals issued warnings against the Magic Balls, and the lobbying effort that would have explicitly allowed it floundered.



The mingling prohibition in the 1938 law is not absolute:




The Federal Food, Drug and Cosmetic Act of 1938 prohibited the marketing of any candy if it had imbedded in it a ''non-nutritive object'' unless the object had a purpose. The F.D.A. has interpreted that exception to apply to items like the sticks in lollypops. Boxes of Cracker Jack, which have long had small toys next to the snack, are governed by a different regulation because the toy is not imbedded in the food product, but is ''commingled.''




Nestle argued that the FDA's interpretation of the law was too strict. When this failed to convince the FDA directly, Nestle tried to have Nethercutt's bill amendment force the FDA to change its interpretation. (As I already mentioned, this effort failed too.)



So the ban on Kinder Surprise is combination of law and its interpretation by the FDA. The agency actually has a fairly long import ban list of similar candy products it considers illegal under the 1938 law. The preamble to the actual list does say it was prompted by the Kinder Surprise (and some unnamed "similar articles") brought to their attention in this respect.



Also, in the 1950s and 60s the FDA was battling vending machines that were mixing candy with "trinkets":




A seizure was instituted against a lot of gum and candy intermingled with trinkets. It was alleged that the mingling of trinkets with candy resulted in adulteration in violation of Section 402(a)(1) of the Federal Food, Drug, and Cosmetic Act which provides that food shall be deemed adulterated "if it bears or contains any poisonous or deleterious substance which may render it injurious to health". The seizure was contested. The U.S. District Court upheld the seizure, but on July 24, 1951 the 4th Circuit Court of Appeals reversed this decision, holding that the trinkets were not contained within the gum or candy. (Cavalier Vending Corporation v. United States, 190 F. 2nd 386 (4th Cir. 1951) (reversing United States v. A Quantity of Candy Containing Trinkets, et al., 95 F. Supp. 490 (E.D. Va 1951).)"



In 1964, HEW and FDA initiated legislation intended to clearly outlaw the practice of vending confectionery mingled with trinkets through an amendment to Section 402(d) of the Act. Section 402(d)(1) was amended to provide that confectionery shall be deemed to be adulterated if it has partially or completely imbedded therein any non-nutritive object.



Considering the amendment, both the House and Senate Reports mentioned the Cavalier case, and both mentioned that FDA had asked for legislation to put a stop to the intermingling of trinkets with candy unless the trinkets were wrapped in cellophane or otherwise separated from the candy. Both the House and Senate said that such legislation should not be allowed, because the vending machine operators had one of the lowest liability insurance rates in the food industry, indicating a low incidence of injuries.



[...]



because of the decision of appellate court in Cavalier Vending Corp. v. U.S., and the legislative history of P.L. 89-477, amending Section 402(d)(1), the Administration is not in a position to take regulatory action because of the intermingling of trinkets with confectionery, so long as the trinkets are not completely or partially imbedded in candy or gum.




This was also well before the Kinder Surprise was even commercialized (1968, if Wikipedia is correct on that.) So the FDA hard line on "trinkets" wasn't something specifically targeting Kinder Surprise. Also the FDA accepted "commingling" (at least in the case of vending machines) after losing some court cases as noted above.






share|improve this answer





















  • 1





    How could the US have passed a ban in 1938 on a product that was only introduced in the 1960s? Was a time machine involved?

    – Henning Makholm
    8 hours ago






  • 4





    @HenningMakholm: I was referring to the law which banned such products in principle. When I actually wrote that first bit I wasn't aware that the FDA's interpretation thereof was also significant.

    – Fizz
    8 hours ago






  • 1





    @HenningMakholm The answer states that the ban is not on the product itself but rather is on a type of product, and it even links to the cause of the ban... and this particular product just happens to be of the type that was banned long before. Analogy: If people stab with pointy knives and so a law is made that says "no stabbing with pointy objects", and later on a pointy fork is invented the pointy fork is still illegal to stab with since it is still a pointy object - no time machine was involved.

    – Aaron
    8 hours ago






  • 1





    Not sure if it's intentional or accidental, but the start of this answer makes it sound like you're saying they created the Kinder Joy in order to work around this law and sell in the US, when the linked wiki says it was not sold in the US until 16 years after its 2001 launch.

    – user568458
    7 hours ago






  • 1





    Now this is the kind of extended answer I was looking for when I posted my comment, digging into the politics around the issue. In this case showing that safety issues came first - supporting the accepted answer, but a more thorough proof of it.

    – Neil Slater
    7 hours ago



















12














Apologies for the poor quality, but this photo of a poster from the FDA History Office gets the point across.



A poor photo of a poster from the FDA history office



The text reads:




During the Great Depression, candy with a "prize" inside -- usually a coin or lead trinket -- was very popular. However, they could be deadly when swallowed by small children. These photos taken by Dr. Chevalier Jackson, a pioneering laryngologist, helped convince Congress to approve a provision in the 1938 Food, Drug and Cosmetic Act and still in force today, which prohibits the sale of trinkets embedded in confections.







share|improve this answer










New contributor




Frank is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
















  • 2





    Please attribute your image and explain why it's relevant.

    – JJJ
    12 hours ago






  • 1





    @JJJ, ...I've transcribed the text (in what is presently a still-pending edit), which should make the relevance of the rest of the image clear.

    – Charles Duffy
    12 hours ago





















8














Even though a different answer was already accepted, I believe it might be wrong. In a video by Youtube channel "Today I found out" it's explained that this isn't so much because of the choking hazard, but because of a law that forbids non-edible elements in food as long as they don't serve a practical purpose (e.g. the stick in lollipops serves to hold it, so it's allowed, but the egg containing the present in a kinder surprise doesn't have a purpose which is why the eggs are illegal).
It looks like the video was already made some time ago, so I don't know if the answer has been disproved since, but here's the link: https://www.youtube.com/watch?v=ffzbfO0c5Qs






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New contributor




IceKing1982 is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
















  • 6





    I suspect this is a case of two sources essentially saying the same thing in different ways. Section 401(4) of the Federal Food, Drug, and Cosmetic Act bans imbedded non-nutritive objects in confectionary, but the rational for that law is potential health risks, viz " the consumer may unknowingly choke on the object" (to quote an FDA circular accessdata.fda.gov/cms_ia/importalert_107.html

    – origimbo
    15 hours ago








  • 1





    If that were A Thing, wouldn't King Cakes be banned too?

    – T.E.D.
    14 hours ago








  • 3





    @T.E.D. I could easily see this being an issue for Kinder, and not king cakes, because king cakes are not expressly marketed to children.

    – Machavity
    12 hours ago











  • @T.E.D. From what I am reading, I'm finding that the FDA does indeed ban King Cakes, for the same reason as Kinder Eggs, but that the FDA does not actively enforce it. Being a cultural symbol has its perks.

    – Cort Ammon
    1 hour ago












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4 Answers
4






active

oldest

votes








4 Answers
4






active

oldest

votes









active

oldest

votes






active

oldest

votes









38














They have tiny pieces that are considered to be a choking hazard. There have been some high profile and tragic deaths among children due to choking on toys with small pieces. So the United States is especially stringent in regulating children's toys. The Kinder Surprise Eggs are considered especially dangerous as they are embedded in a food product. So a young child might think the toy is edible as well. Wikipedia.






share|improve this answer



















  • 39





    ...especially dangerous as they are embedded in a food product. - better start banning Avocados and Peaches, too.

    – Ian
    17 hours ago






  • 49





    I suppose young kids are smarter in the rest of the world... :)

    – Alessandro
    17 hours ago






  • 19





    @Ian If your Avocados and peaches have stones the size of the smallest Kinder surprise parts then you need to find a new supplier :-), || In New Zealand, where I live, we had a recentish high profile case where a child suffered mental impairment form asphyxia due to choking on sliced apple. Child deaths from apple is sadly well enough known world wide.

    – Russell McMahon
    16 hours ago






  • 24





    @DavidRicherby Not sure why you, as a Brit, laugh at the idea that the US has stringent regulations on anything. On the contrary, the US is full of regulations that seem insanely overbearing by UK standards, from California's "stick a lengthy cancer warning on virtually every object that exists" law to occupational licensing laws mandating (often expensive and time-consuming) qualification courses for low-skill working-class jobs like bartending or hairdressing. The US is no libertarian paradise; the idea of them restricting businesses in a way that we don't should not be shocking at all.

    – Mark Amery
    16 hours ago








  • 11





    The US is not alone in this - different countries prioritise different food safety issues, and some of those issues can be framed as having a protectionist angle. For instance EU vs US on chlorinated chicken.

    – Neil Slater
    15 hours ago
















38














They have tiny pieces that are considered to be a choking hazard. There have been some high profile and tragic deaths among children due to choking on toys with small pieces. So the United States is especially stringent in regulating children's toys. The Kinder Surprise Eggs are considered especially dangerous as they are embedded in a food product. So a young child might think the toy is edible as well. Wikipedia.






share|improve this answer



















  • 39





    ...especially dangerous as they are embedded in a food product. - better start banning Avocados and Peaches, too.

    – Ian
    17 hours ago






  • 49





    I suppose young kids are smarter in the rest of the world... :)

    – Alessandro
    17 hours ago






  • 19





    @Ian If your Avocados and peaches have stones the size of the smallest Kinder surprise parts then you need to find a new supplier :-), || In New Zealand, where I live, we had a recentish high profile case where a child suffered mental impairment form asphyxia due to choking on sliced apple. Child deaths from apple is sadly well enough known world wide.

    – Russell McMahon
    16 hours ago






  • 24





    @DavidRicherby Not sure why you, as a Brit, laugh at the idea that the US has stringent regulations on anything. On the contrary, the US is full of regulations that seem insanely overbearing by UK standards, from California's "stick a lengthy cancer warning on virtually every object that exists" law to occupational licensing laws mandating (often expensive and time-consuming) qualification courses for low-skill working-class jobs like bartending or hairdressing. The US is no libertarian paradise; the idea of them restricting businesses in a way that we don't should not be shocking at all.

    – Mark Amery
    16 hours ago








  • 11





    The US is not alone in this - different countries prioritise different food safety issues, and some of those issues can be framed as having a protectionist angle. For instance EU vs US on chlorinated chicken.

    – Neil Slater
    15 hours ago














38












38








38







They have tiny pieces that are considered to be a choking hazard. There have been some high profile and tragic deaths among children due to choking on toys with small pieces. So the United States is especially stringent in regulating children's toys. The Kinder Surprise Eggs are considered especially dangerous as they are embedded in a food product. So a young child might think the toy is edible as well. Wikipedia.






share|improve this answer













They have tiny pieces that are considered to be a choking hazard. There have been some high profile and tragic deaths among children due to choking on toys with small pieces. So the United States is especially stringent in regulating children's toys. The Kinder Surprise Eggs are considered especially dangerous as they are embedded in a food product. So a young child might think the toy is edible as well. Wikipedia.







share|improve this answer












share|improve this answer



share|improve this answer










answered yesterday









BrythanBrythan

70.7k8149239




70.7k8149239








  • 39





    ...especially dangerous as they are embedded in a food product. - better start banning Avocados and Peaches, too.

    – Ian
    17 hours ago






  • 49





    I suppose young kids are smarter in the rest of the world... :)

    – Alessandro
    17 hours ago






  • 19





    @Ian If your Avocados and peaches have stones the size of the smallest Kinder surprise parts then you need to find a new supplier :-), || In New Zealand, where I live, we had a recentish high profile case where a child suffered mental impairment form asphyxia due to choking on sliced apple. Child deaths from apple is sadly well enough known world wide.

    – Russell McMahon
    16 hours ago






  • 24





    @DavidRicherby Not sure why you, as a Brit, laugh at the idea that the US has stringent regulations on anything. On the contrary, the US is full of regulations that seem insanely overbearing by UK standards, from California's "stick a lengthy cancer warning on virtually every object that exists" law to occupational licensing laws mandating (often expensive and time-consuming) qualification courses for low-skill working-class jobs like bartending or hairdressing. The US is no libertarian paradise; the idea of them restricting businesses in a way that we don't should not be shocking at all.

    – Mark Amery
    16 hours ago








  • 11





    The US is not alone in this - different countries prioritise different food safety issues, and some of those issues can be framed as having a protectionist angle. For instance EU vs US on chlorinated chicken.

    – Neil Slater
    15 hours ago














  • 39





    ...especially dangerous as they are embedded in a food product. - better start banning Avocados and Peaches, too.

    – Ian
    17 hours ago






  • 49





    I suppose young kids are smarter in the rest of the world... :)

    – Alessandro
    17 hours ago






  • 19





    @Ian If your Avocados and peaches have stones the size of the smallest Kinder surprise parts then you need to find a new supplier :-), || In New Zealand, where I live, we had a recentish high profile case where a child suffered mental impairment form asphyxia due to choking on sliced apple. Child deaths from apple is sadly well enough known world wide.

    – Russell McMahon
    16 hours ago






  • 24





    @DavidRicherby Not sure why you, as a Brit, laugh at the idea that the US has stringent regulations on anything. On the contrary, the US is full of regulations that seem insanely overbearing by UK standards, from California's "stick a lengthy cancer warning on virtually every object that exists" law to occupational licensing laws mandating (often expensive and time-consuming) qualification courses for low-skill working-class jobs like bartending or hairdressing. The US is no libertarian paradise; the idea of them restricting businesses in a way that we don't should not be shocking at all.

    – Mark Amery
    16 hours ago








  • 11





    The US is not alone in this - different countries prioritise different food safety issues, and some of those issues can be framed as having a protectionist angle. For instance EU vs US on chlorinated chicken.

    – Neil Slater
    15 hours ago








39




39





...especially dangerous as they are embedded in a food product. - better start banning Avocados and Peaches, too.

– Ian
17 hours ago





...especially dangerous as they are embedded in a food product. - better start banning Avocados and Peaches, too.

– Ian
17 hours ago




49




49





I suppose young kids are smarter in the rest of the world... :)

– Alessandro
17 hours ago





I suppose young kids are smarter in the rest of the world... :)

– Alessandro
17 hours ago




19




19





@Ian If your Avocados and peaches have stones the size of the smallest Kinder surprise parts then you need to find a new supplier :-), || In New Zealand, where I live, we had a recentish high profile case where a child suffered mental impairment form asphyxia due to choking on sliced apple. Child deaths from apple is sadly well enough known world wide.

– Russell McMahon
16 hours ago





@Ian If your Avocados and peaches have stones the size of the smallest Kinder surprise parts then you need to find a new supplier :-), || In New Zealand, where I live, we had a recentish high profile case where a child suffered mental impairment form asphyxia due to choking on sliced apple. Child deaths from apple is sadly well enough known world wide.

– Russell McMahon
16 hours ago




24




24





@DavidRicherby Not sure why you, as a Brit, laugh at the idea that the US has stringent regulations on anything. On the contrary, the US is full of regulations that seem insanely overbearing by UK standards, from California's "stick a lengthy cancer warning on virtually every object that exists" law to occupational licensing laws mandating (often expensive and time-consuming) qualification courses for low-skill working-class jobs like bartending or hairdressing. The US is no libertarian paradise; the idea of them restricting businesses in a way that we don't should not be shocking at all.

– Mark Amery
16 hours ago







@DavidRicherby Not sure why you, as a Brit, laugh at the idea that the US has stringent regulations on anything. On the contrary, the US is full of regulations that seem insanely overbearing by UK standards, from California's "stick a lengthy cancer warning on virtually every object that exists" law to occupational licensing laws mandating (often expensive and time-consuming) qualification courses for low-skill working-class jobs like bartending or hairdressing. The US is no libertarian paradise; the idea of them restricting businesses in a way that we don't should not be shocking at all.

– Mark Amery
16 hours ago






11




11





The US is not alone in this - different countries prioritise different food safety issues, and some of those issues can be framed as having a protectionist angle. For instance EU vs US on chlorinated chicken.

– Neil Slater
15 hours ago





The US is not alone in this - different countries prioritise different food safety issues, and some of those issues can be framed as having a protectionist angle. For instance EU vs US on chlorinated chicken.

– Neil Slater
15 hours ago











32














Note that the manufacturer has worked around this ban by introducing the Kinder Joy




It has plastic egg-shaped packaging that splits into two, one half contains layers of cocoa and milk cream and the other half contains a toy.




Because the edible and non-edible parts are separated, this can and is sold in the US.



And since someone suggested in a comment protectionism might have been at play... That's unlikely in this case because the US law enacting this generic prohibition goes back to 1938; it was part of the Food, Drug, and Cosmetic Act enacted in the wake of the "Elixir" sulfanilamide scandal.
The Kinder Surprise was introduced in the late 1960s.



The law as summarized in a paper on this topic, authored by an FDA employee:




The regulations in the Federal Food, Drug, and Cosmetic
Act on the hazards of nonnutritive objects found in confectionary
products have been in effect since 1938. Specifically,
Section 342(d) (1) of the Act states, “If it is confectionery, and
has partially or completely imbedded therein any nonnutritive
object: Provided, That this clause 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.”




On the other hand, Nestle did lobby to have the US law changed in the 1990s when they introduced their "clone" Magic Ball product.




Nestle also attempted a political lobbying blitz to change the law, including trying to get Congress to embed wording in an Agricultural Appropriations bill that would have made their product legal, with Representative George Nethercutt of Washington state, whose district just so happened to include a large Nestle plant employing hundreds of voters, championing the tweak in wording.




They did not prevail though.



And since another answer brought up choking hazard: that is a somewhat different issue. Despite FDA's opposition, the Magic Balls were actually sold in the US for approximately two months (in 1997) because Nestle's product managed to pass the explicit choking tube test (16 CFR § 1501) of the U.S. Consumer Product Safety Commission. Mars (a competitor of Nestle) engaged however in counter lobbying through Carol Tucker Foreman, an former Assistant Secretary of Agriculture in the Carter Administration who argued that the Nestle product barely passed the CPSC choking test. Following her arguments numerous state attorney generals issued warnings against the Magic Balls, and the lobbying effort that would have explicitly allowed it floundered.



The mingling prohibition in the 1938 law is not absolute:




The Federal Food, Drug and Cosmetic Act of 1938 prohibited the marketing of any candy if it had imbedded in it a ''non-nutritive object'' unless the object had a purpose. The F.D.A. has interpreted that exception to apply to items like the sticks in lollypops. Boxes of Cracker Jack, which have long had small toys next to the snack, are governed by a different regulation because the toy is not imbedded in the food product, but is ''commingled.''




Nestle argued that the FDA's interpretation of the law was too strict. When this failed to convince the FDA directly, Nestle tried to have Nethercutt's bill amendment force the FDA to change its interpretation. (As I already mentioned, this effort failed too.)



So the ban on Kinder Surprise is combination of law and its interpretation by the FDA. The agency actually has a fairly long import ban list of similar candy products it considers illegal under the 1938 law. The preamble to the actual list does say it was prompted by the Kinder Surprise (and some unnamed "similar articles") brought to their attention in this respect.



Also, in the 1950s and 60s the FDA was battling vending machines that were mixing candy with "trinkets":




A seizure was instituted against a lot of gum and candy intermingled with trinkets. It was alleged that the mingling of trinkets with candy resulted in adulteration in violation of Section 402(a)(1) of the Federal Food, Drug, and Cosmetic Act which provides that food shall be deemed adulterated "if it bears or contains any poisonous or deleterious substance which may render it injurious to health". The seizure was contested. The U.S. District Court upheld the seizure, but on July 24, 1951 the 4th Circuit Court of Appeals reversed this decision, holding that the trinkets were not contained within the gum or candy. (Cavalier Vending Corporation v. United States, 190 F. 2nd 386 (4th Cir. 1951) (reversing United States v. A Quantity of Candy Containing Trinkets, et al., 95 F. Supp. 490 (E.D. Va 1951).)"



In 1964, HEW and FDA initiated legislation intended to clearly outlaw the practice of vending confectionery mingled with trinkets through an amendment to Section 402(d) of the Act. Section 402(d)(1) was amended to provide that confectionery shall be deemed to be adulterated if it has partially or completely imbedded therein any non-nutritive object.



Considering the amendment, both the House and Senate Reports mentioned the Cavalier case, and both mentioned that FDA had asked for legislation to put a stop to the intermingling of trinkets with candy unless the trinkets were wrapped in cellophane or otherwise separated from the candy. Both the House and Senate said that such legislation should not be allowed, because the vending machine operators had one of the lowest liability insurance rates in the food industry, indicating a low incidence of injuries.



[...]



because of the decision of appellate court in Cavalier Vending Corp. v. U.S., and the legislative history of P.L. 89-477, amending Section 402(d)(1), the Administration is not in a position to take regulatory action because of the intermingling of trinkets with confectionery, so long as the trinkets are not completely or partially imbedded in candy or gum.




This was also well before the Kinder Surprise was even commercialized (1968, if Wikipedia is correct on that.) So the FDA hard line on "trinkets" wasn't something specifically targeting Kinder Surprise. Also the FDA accepted "commingling" (at least in the case of vending machines) after losing some court cases as noted above.






share|improve this answer





















  • 1





    How could the US have passed a ban in 1938 on a product that was only introduced in the 1960s? Was a time machine involved?

    – Henning Makholm
    8 hours ago






  • 4





    @HenningMakholm: I was referring to the law which banned such products in principle. When I actually wrote that first bit I wasn't aware that the FDA's interpretation thereof was also significant.

    – Fizz
    8 hours ago






  • 1





    @HenningMakholm The answer states that the ban is not on the product itself but rather is on a type of product, and it even links to the cause of the ban... and this particular product just happens to be of the type that was banned long before. Analogy: If people stab with pointy knives and so a law is made that says "no stabbing with pointy objects", and later on a pointy fork is invented the pointy fork is still illegal to stab with since it is still a pointy object - no time machine was involved.

    – Aaron
    8 hours ago






  • 1





    Not sure if it's intentional or accidental, but the start of this answer makes it sound like you're saying they created the Kinder Joy in order to work around this law and sell in the US, when the linked wiki says it was not sold in the US until 16 years after its 2001 launch.

    – user568458
    7 hours ago






  • 1





    Now this is the kind of extended answer I was looking for when I posted my comment, digging into the politics around the issue. In this case showing that safety issues came first - supporting the accepted answer, but a more thorough proof of it.

    – Neil Slater
    7 hours ago
















32














Note that the manufacturer has worked around this ban by introducing the Kinder Joy




It has plastic egg-shaped packaging that splits into two, one half contains layers of cocoa and milk cream and the other half contains a toy.




Because the edible and non-edible parts are separated, this can and is sold in the US.



And since someone suggested in a comment protectionism might have been at play... That's unlikely in this case because the US law enacting this generic prohibition goes back to 1938; it was part of the Food, Drug, and Cosmetic Act enacted in the wake of the "Elixir" sulfanilamide scandal.
The Kinder Surprise was introduced in the late 1960s.



The law as summarized in a paper on this topic, authored by an FDA employee:




The regulations in the Federal Food, Drug, and Cosmetic
Act on the hazards of nonnutritive objects found in confectionary
products have been in effect since 1938. Specifically,
Section 342(d) (1) of the Act states, “If it is confectionery, and
has partially or completely imbedded therein any nonnutritive
object: Provided, That this clause 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.”




On the other hand, Nestle did lobby to have the US law changed in the 1990s when they introduced their "clone" Magic Ball product.




Nestle also attempted a political lobbying blitz to change the law, including trying to get Congress to embed wording in an Agricultural Appropriations bill that would have made their product legal, with Representative George Nethercutt of Washington state, whose district just so happened to include a large Nestle plant employing hundreds of voters, championing the tweak in wording.




They did not prevail though.



And since another answer brought up choking hazard: that is a somewhat different issue. Despite FDA's opposition, the Magic Balls were actually sold in the US for approximately two months (in 1997) because Nestle's product managed to pass the explicit choking tube test (16 CFR § 1501) of the U.S. Consumer Product Safety Commission. Mars (a competitor of Nestle) engaged however in counter lobbying through Carol Tucker Foreman, an former Assistant Secretary of Agriculture in the Carter Administration who argued that the Nestle product barely passed the CPSC choking test. Following her arguments numerous state attorney generals issued warnings against the Magic Balls, and the lobbying effort that would have explicitly allowed it floundered.



The mingling prohibition in the 1938 law is not absolute:




The Federal Food, Drug and Cosmetic Act of 1938 prohibited the marketing of any candy if it had imbedded in it a ''non-nutritive object'' unless the object had a purpose. The F.D.A. has interpreted that exception to apply to items like the sticks in lollypops. Boxes of Cracker Jack, which have long had small toys next to the snack, are governed by a different regulation because the toy is not imbedded in the food product, but is ''commingled.''




Nestle argued that the FDA's interpretation of the law was too strict. When this failed to convince the FDA directly, Nestle tried to have Nethercutt's bill amendment force the FDA to change its interpretation. (As I already mentioned, this effort failed too.)



So the ban on Kinder Surprise is combination of law and its interpretation by the FDA. The agency actually has a fairly long import ban list of similar candy products it considers illegal under the 1938 law. The preamble to the actual list does say it was prompted by the Kinder Surprise (and some unnamed "similar articles") brought to their attention in this respect.



Also, in the 1950s and 60s the FDA was battling vending machines that were mixing candy with "trinkets":




A seizure was instituted against a lot of gum and candy intermingled with trinkets. It was alleged that the mingling of trinkets with candy resulted in adulteration in violation of Section 402(a)(1) of the Federal Food, Drug, and Cosmetic Act which provides that food shall be deemed adulterated "if it bears or contains any poisonous or deleterious substance which may render it injurious to health". The seizure was contested. The U.S. District Court upheld the seizure, but on July 24, 1951 the 4th Circuit Court of Appeals reversed this decision, holding that the trinkets were not contained within the gum or candy. (Cavalier Vending Corporation v. United States, 190 F. 2nd 386 (4th Cir. 1951) (reversing United States v. A Quantity of Candy Containing Trinkets, et al., 95 F. Supp. 490 (E.D. Va 1951).)"



In 1964, HEW and FDA initiated legislation intended to clearly outlaw the practice of vending confectionery mingled with trinkets through an amendment to Section 402(d) of the Act. Section 402(d)(1) was amended to provide that confectionery shall be deemed to be adulterated if it has partially or completely imbedded therein any non-nutritive object.



Considering the amendment, both the House and Senate Reports mentioned the Cavalier case, and both mentioned that FDA had asked for legislation to put a stop to the intermingling of trinkets with candy unless the trinkets were wrapped in cellophane or otherwise separated from the candy. Both the House and Senate said that such legislation should not be allowed, because the vending machine operators had one of the lowest liability insurance rates in the food industry, indicating a low incidence of injuries.



[...]



because of the decision of appellate court in Cavalier Vending Corp. v. U.S., and the legislative history of P.L. 89-477, amending Section 402(d)(1), the Administration is not in a position to take regulatory action because of the intermingling of trinkets with confectionery, so long as the trinkets are not completely or partially imbedded in candy or gum.




This was also well before the Kinder Surprise was even commercialized (1968, if Wikipedia is correct on that.) So the FDA hard line on "trinkets" wasn't something specifically targeting Kinder Surprise. Also the FDA accepted "commingling" (at least in the case of vending machines) after losing some court cases as noted above.






share|improve this answer





















  • 1





    How could the US have passed a ban in 1938 on a product that was only introduced in the 1960s? Was a time machine involved?

    – Henning Makholm
    8 hours ago






  • 4





    @HenningMakholm: I was referring to the law which banned such products in principle. When I actually wrote that first bit I wasn't aware that the FDA's interpretation thereof was also significant.

    – Fizz
    8 hours ago






  • 1





    @HenningMakholm The answer states that the ban is not on the product itself but rather is on a type of product, and it even links to the cause of the ban... and this particular product just happens to be of the type that was banned long before. Analogy: If people stab with pointy knives and so a law is made that says "no stabbing with pointy objects", and later on a pointy fork is invented the pointy fork is still illegal to stab with since it is still a pointy object - no time machine was involved.

    – Aaron
    8 hours ago






  • 1





    Not sure if it's intentional or accidental, but the start of this answer makes it sound like you're saying they created the Kinder Joy in order to work around this law and sell in the US, when the linked wiki says it was not sold in the US until 16 years after its 2001 launch.

    – user568458
    7 hours ago






  • 1





    Now this is the kind of extended answer I was looking for when I posted my comment, digging into the politics around the issue. In this case showing that safety issues came first - supporting the accepted answer, but a more thorough proof of it.

    – Neil Slater
    7 hours ago














32












32








32







Note that the manufacturer has worked around this ban by introducing the Kinder Joy




It has plastic egg-shaped packaging that splits into two, one half contains layers of cocoa and milk cream and the other half contains a toy.




Because the edible and non-edible parts are separated, this can and is sold in the US.



And since someone suggested in a comment protectionism might have been at play... That's unlikely in this case because the US law enacting this generic prohibition goes back to 1938; it was part of the Food, Drug, and Cosmetic Act enacted in the wake of the "Elixir" sulfanilamide scandal.
The Kinder Surprise was introduced in the late 1960s.



The law as summarized in a paper on this topic, authored by an FDA employee:




The regulations in the Federal Food, Drug, and Cosmetic
Act on the hazards of nonnutritive objects found in confectionary
products have been in effect since 1938. Specifically,
Section 342(d) (1) of the Act states, “If it is confectionery, and
has partially or completely imbedded therein any nonnutritive
object: Provided, That this clause 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.”




On the other hand, Nestle did lobby to have the US law changed in the 1990s when they introduced their "clone" Magic Ball product.




Nestle also attempted a political lobbying blitz to change the law, including trying to get Congress to embed wording in an Agricultural Appropriations bill that would have made their product legal, with Representative George Nethercutt of Washington state, whose district just so happened to include a large Nestle plant employing hundreds of voters, championing the tweak in wording.




They did not prevail though.



And since another answer brought up choking hazard: that is a somewhat different issue. Despite FDA's opposition, the Magic Balls were actually sold in the US for approximately two months (in 1997) because Nestle's product managed to pass the explicit choking tube test (16 CFR § 1501) of the U.S. Consumer Product Safety Commission. Mars (a competitor of Nestle) engaged however in counter lobbying through Carol Tucker Foreman, an former Assistant Secretary of Agriculture in the Carter Administration who argued that the Nestle product barely passed the CPSC choking test. Following her arguments numerous state attorney generals issued warnings against the Magic Balls, and the lobbying effort that would have explicitly allowed it floundered.



The mingling prohibition in the 1938 law is not absolute:




The Federal Food, Drug and Cosmetic Act of 1938 prohibited the marketing of any candy if it had imbedded in it a ''non-nutritive object'' unless the object had a purpose. The F.D.A. has interpreted that exception to apply to items like the sticks in lollypops. Boxes of Cracker Jack, which have long had small toys next to the snack, are governed by a different regulation because the toy is not imbedded in the food product, but is ''commingled.''




Nestle argued that the FDA's interpretation of the law was too strict. When this failed to convince the FDA directly, Nestle tried to have Nethercutt's bill amendment force the FDA to change its interpretation. (As I already mentioned, this effort failed too.)



So the ban on Kinder Surprise is combination of law and its interpretation by the FDA. The agency actually has a fairly long import ban list of similar candy products it considers illegal under the 1938 law. The preamble to the actual list does say it was prompted by the Kinder Surprise (and some unnamed "similar articles") brought to their attention in this respect.



Also, in the 1950s and 60s the FDA was battling vending machines that were mixing candy with "trinkets":




A seizure was instituted against a lot of gum and candy intermingled with trinkets. It was alleged that the mingling of trinkets with candy resulted in adulteration in violation of Section 402(a)(1) of the Federal Food, Drug, and Cosmetic Act which provides that food shall be deemed adulterated "if it bears or contains any poisonous or deleterious substance which may render it injurious to health". The seizure was contested. The U.S. District Court upheld the seizure, but on July 24, 1951 the 4th Circuit Court of Appeals reversed this decision, holding that the trinkets were not contained within the gum or candy. (Cavalier Vending Corporation v. United States, 190 F. 2nd 386 (4th Cir. 1951) (reversing United States v. A Quantity of Candy Containing Trinkets, et al., 95 F. Supp. 490 (E.D. Va 1951).)"



In 1964, HEW and FDA initiated legislation intended to clearly outlaw the practice of vending confectionery mingled with trinkets through an amendment to Section 402(d) of the Act. Section 402(d)(1) was amended to provide that confectionery shall be deemed to be adulterated if it has partially or completely imbedded therein any non-nutritive object.



Considering the amendment, both the House and Senate Reports mentioned the Cavalier case, and both mentioned that FDA had asked for legislation to put a stop to the intermingling of trinkets with candy unless the trinkets were wrapped in cellophane or otherwise separated from the candy. Both the House and Senate said that such legislation should not be allowed, because the vending machine operators had one of the lowest liability insurance rates in the food industry, indicating a low incidence of injuries.



[...]



because of the decision of appellate court in Cavalier Vending Corp. v. U.S., and the legislative history of P.L. 89-477, amending Section 402(d)(1), the Administration is not in a position to take regulatory action because of the intermingling of trinkets with confectionery, so long as the trinkets are not completely or partially imbedded in candy or gum.




This was also well before the Kinder Surprise was even commercialized (1968, if Wikipedia is correct on that.) So the FDA hard line on "trinkets" wasn't something specifically targeting Kinder Surprise. Also the FDA accepted "commingling" (at least in the case of vending machines) after losing some court cases as noted above.






share|improve this answer















Note that the manufacturer has worked around this ban by introducing the Kinder Joy




It has plastic egg-shaped packaging that splits into two, one half contains layers of cocoa and milk cream and the other half contains a toy.




Because the edible and non-edible parts are separated, this can and is sold in the US.



And since someone suggested in a comment protectionism might have been at play... That's unlikely in this case because the US law enacting this generic prohibition goes back to 1938; it was part of the Food, Drug, and Cosmetic Act enacted in the wake of the "Elixir" sulfanilamide scandal.
The Kinder Surprise was introduced in the late 1960s.



The law as summarized in a paper on this topic, authored by an FDA employee:




The regulations in the Federal Food, Drug, and Cosmetic
Act on the hazards of nonnutritive objects found in confectionary
products have been in effect since 1938. Specifically,
Section 342(d) (1) of the Act states, “If it is confectionery, and
has partially or completely imbedded therein any nonnutritive
object: Provided, That this clause 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.”




On the other hand, Nestle did lobby to have the US law changed in the 1990s when they introduced their "clone" Magic Ball product.




Nestle also attempted a political lobbying blitz to change the law, including trying to get Congress to embed wording in an Agricultural Appropriations bill that would have made their product legal, with Representative George Nethercutt of Washington state, whose district just so happened to include a large Nestle plant employing hundreds of voters, championing the tweak in wording.




They did not prevail though.



And since another answer brought up choking hazard: that is a somewhat different issue. Despite FDA's opposition, the Magic Balls were actually sold in the US for approximately two months (in 1997) because Nestle's product managed to pass the explicit choking tube test (16 CFR § 1501) of the U.S. Consumer Product Safety Commission. Mars (a competitor of Nestle) engaged however in counter lobbying through Carol Tucker Foreman, an former Assistant Secretary of Agriculture in the Carter Administration who argued that the Nestle product barely passed the CPSC choking test. Following her arguments numerous state attorney generals issued warnings against the Magic Balls, and the lobbying effort that would have explicitly allowed it floundered.



The mingling prohibition in the 1938 law is not absolute:




The Federal Food, Drug and Cosmetic Act of 1938 prohibited the marketing of any candy if it had imbedded in it a ''non-nutritive object'' unless the object had a purpose. The F.D.A. has interpreted that exception to apply to items like the sticks in lollypops. Boxes of Cracker Jack, which have long had small toys next to the snack, are governed by a different regulation because the toy is not imbedded in the food product, but is ''commingled.''




Nestle argued that the FDA's interpretation of the law was too strict. When this failed to convince the FDA directly, Nestle tried to have Nethercutt's bill amendment force the FDA to change its interpretation. (As I already mentioned, this effort failed too.)



So the ban on Kinder Surprise is combination of law and its interpretation by the FDA. The agency actually has a fairly long import ban list of similar candy products it considers illegal under the 1938 law. The preamble to the actual list does say it was prompted by the Kinder Surprise (and some unnamed "similar articles") brought to their attention in this respect.



Also, in the 1950s and 60s the FDA was battling vending machines that were mixing candy with "trinkets":




A seizure was instituted against a lot of gum and candy intermingled with trinkets. It was alleged that the mingling of trinkets with candy resulted in adulteration in violation of Section 402(a)(1) of the Federal Food, Drug, and Cosmetic Act which provides that food shall be deemed adulterated "if it bears or contains any poisonous or deleterious substance which may render it injurious to health". The seizure was contested. The U.S. District Court upheld the seizure, but on July 24, 1951 the 4th Circuit Court of Appeals reversed this decision, holding that the trinkets were not contained within the gum or candy. (Cavalier Vending Corporation v. United States, 190 F. 2nd 386 (4th Cir. 1951) (reversing United States v. A Quantity of Candy Containing Trinkets, et al., 95 F. Supp. 490 (E.D. Va 1951).)"



In 1964, HEW and FDA initiated legislation intended to clearly outlaw the practice of vending confectionery mingled with trinkets through an amendment to Section 402(d) of the Act. Section 402(d)(1) was amended to provide that confectionery shall be deemed to be adulterated if it has partially or completely imbedded therein any non-nutritive object.



Considering the amendment, both the House and Senate Reports mentioned the Cavalier case, and both mentioned that FDA had asked for legislation to put a stop to the intermingling of trinkets with candy unless the trinkets were wrapped in cellophane or otherwise separated from the candy. Both the House and Senate said that such legislation should not be allowed, because the vending machine operators had one of the lowest liability insurance rates in the food industry, indicating a low incidence of injuries.



[...]



because of the decision of appellate court in Cavalier Vending Corp. v. U.S., and the legislative history of P.L. 89-477, amending Section 402(d)(1), the Administration is not in a position to take regulatory action because of the intermingling of trinkets with confectionery, so long as the trinkets are not completely or partially imbedded in candy or gum.




This was also well before the Kinder Surprise was even commercialized (1968, if Wikipedia is correct on that.) So the FDA hard line on "trinkets" wasn't something specifically targeting Kinder Surprise. Also the FDA accepted "commingling" (at least in the case of vending machines) after losing some court cases as noted above.







share|improve this answer














share|improve this answer



share|improve this answer








edited 8 hours ago

























answered 15 hours ago









FizzFizz

15.7k241103




15.7k241103








  • 1





    How could the US have passed a ban in 1938 on a product that was only introduced in the 1960s? Was a time machine involved?

    – Henning Makholm
    8 hours ago






  • 4





    @HenningMakholm: I was referring to the law which banned such products in principle. When I actually wrote that first bit I wasn't aware that the FDA's interpretation thereof was also significant.

    – Fizz
    8 hours ago






  • 1





    @HenningMakholm The answer states that the ban is not on the product itself but rather is on a type of product, and it even links to the cause of the ban... and this particular product just happens to be of the type that was banned long before. Analogy: If people stab with pointy knives and so a law is made that says "no stabbing with pointy objects", and later on a pointy fork is invented the pointy fork is still illegal to stab with since it is still a pointy object - no time machine was involved.

    – Aaron
    8 hours ago






  • 1





    Not sure if it's intentional or accidental, but the start of this answer makes it sound like you're saying they created the Kinder Joy in order to work around this law and sell in the US, when the linked wiki says it was not sold in the US until 16 years after its 2001 launch.

    – user568458
    7 hours ago






  • 1





    Now this is the kind of extended answer I was looking for when I posted my comment, digging into the politics around the issue. In this case showing that safety issues came first - supporting the accepted answer, but a more thorough proof of it.

    – Neil Slater
    7 hours ago














  • 1





    How could the US have passed a ban in 1938 on a product that was only introduced in the 1960s? Was a time machine involved?

    – Henning Makholm
    8 hours ago






  • 4





    @HenningMakholm: I was referring to the law which banned such products in principle. When I actually wrote that first bit I wasn't aware that the FDA's interpretation thereof was also significant.

    – Fizz
    8 hours ago






  • 1





    @HenningMakholm The answer states that the ban is not on the product itself but rather is on a type of product, and it even links to the cause of the ban... and this particular product just happens to be of the type that was banned long before. Analogy: If people stab with pointy knives and so a law is made that says "no stabbing with pointy objects", and later on a pointy fork is invented the pointy fork is still illegal to stab with since it is still a pointy object - no time machine was involved.

    – Aaron
    8 hours ago






  • 1





    Not sure if it's intentional or accidental, but the start of this answer makes it sound like you're saying they created the Kinder Joy in order to work around this law and sell in the US, when the linked wiki says it was not sold in the US until 16 years after its 2001 launch.

    – user568458
    7 hours ago






  • 1





    Now this is the kind of extended answer I was looking for when I posted my comment, digging into the politics around the issue. In this case showing that safety issues came first - supporting the accepted answer, but a more thorough proof of it.

    – Neil Slater
    7 hours ago








1




1





How could the US have passed a ban in 1938 on a product that was only introduced in the 1960s? Was a time machine involved?

– Henning Makholm
8 hours ago





How could the US have passed a ban in 1938 on a product that was only introduced in the 1960s? Was a time machine involved?

– Henning Makholm
8 hours ago




4




4





@HenningMakholm: I was referring to the law which banned such products in principle. When I actually wrote that first bit I wasn't aware that the FDA's interpretation thereof was also significant.

– Fizz
8 hours ago





@HenningMakholm: I was referring to the law which banned such products in principle. When I actually wrote that first bit I wasn't aware that the FDA's interpretation thereof was also significant.

– Fizz
8 hours ago




1




1





@HenningMakholm The answer states that the ban is not on the product itself but rather is on a type of product, and it even links to the cause of the ban... and this particular product just happens to be of the type that was banned long before. Analogy: If people stab with pointy knives and so a law is made that says "no stabbing with pointy objects", and later on a pointy fork is invented the pointy fork is still illegal to stab with since it is still a pointy object - no time machine was involved.

– Aaron
8 hours ago





@HenningMakholm The answer states that the ban is not on the product itself but rather is on a type of product, and it even links to the cause of the ban... and this particular product just happens to be of the type that was banned long before. Analogy: If people stab with pointy knives and so a law is made that says "no stabbing with pointy objects", and later on a pointy fork is invented the pointy fork is still illegal to stab with since it is still a pointy object - no time machine was involved.

– Aaron
8 hours ago




1




1





Not sure if it's intentional or accidental, but the start of this answer makes it sound like you're saying they created the Kinder Joy in order to work around this law and sell in the US, when the linked wiki says it was not sold in the US until 16 years after its 2001 launch.

– user568458
7 hours ago





Not sure if it's intentional or accidental, but the start of this answer makes it sound like you're saying they created the Kinder Joy in order to work around this law and sell in the US, when the linked wiki says it was not sold in the US until 16 years after its 2001 launch.

– user568458
7 hours ago




1




1





Now this is the kind of extended answer I was looking for when I posted my comment, digging into the politics around the issue. In this case showing that safety issues came first - supporting the accepted answer, but a more thorough proof of it.

– Neil Slater
7 hours ago





Now this is the kind of extended answer I was looking for when I posted my comment, digging into the politics around the issue. In this case showing that safety issues came first - supporting the accepted answer, but a more thorough proof of it.

– Neil Slater
7 hours ago











12














Apologies for the poor quality, but this photo of a poster from the FDA History Office gets the point across.



A poor photo of a poster from the FDA history office



The text reads:




During the Great Depression, candy with a "prize" inside -- usually a coin or lead trinket -- was very popular. However, they could be deadly when swallowed by small children. These photos taken by Dr. Chevalier Jackson, a pioneering laryngologist, helped convince Congress to approve a provision in the 1938 Food, Drug and Cosmetic Act and still in force today, which prohibits the sale of trinkets embedded in confections.







share|improve this answer










New contributor




Frank is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
















  • 2





    Please attribute your image and explain why it's relevant.

    – JJJ
    12 hours ago






  • 1





    @JJJ, ...I've transcribed the text (in what is presently a still-pending edit), which should make the relevance of the rest of the image clear.

    – Charles Duffy
    12 hours ago


















12














Apologies for the poor quality, but this photo of a poster from the FDA History Office gets the point across.



A poor photo of a poster from the FDA history office



The text reads:




During the Great Depression, candy with a "prize" inside -- usually a coin or lead trinket -- was very popular. However, they could be deadly when swallowed by small children. These photos taken by Dr. Chevalier Jackson, a pioneering laryngologist, helped convince Congress to approve a provision in the 1938 Food, Drug and Cosmetic Act and still in force today, which prohibits the sale of trinkets embedded in confections.







share|improve this answer










New contributor




Frank is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
















  • 2





    Please attribute your image and explain why it's relevant.

    – JJJ
    12 hours ago






  • 1





    @JJJ, ...I've transcribed the text (in what is presently a still-pending edit), which should make the relevance of the rest of the image clear.

    – Charles Duffy
    12 hours ago
















12












12








12







Apologies for the poor quality, but this photo of a poster from the FDA History Office gets the point across.



A poor photo of a poster from the FDA history office



The text reads:




During the Great Depression, candy with a "prize" inside -- usually a coin or lead trinket -- was very popular. However, they could be deadly when swallowed by small children. These photos taken by Dr. Chevalier Jackson, a pioneering laryngologist, helped convince Congress to approve a provision in the 1938 Food, Drug and Cosmetic Act and still in force today, which prohibits the sale of trinkets embedded in confections.







share|improve this answer










New contributor




Frank is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.










Apologies for the poor quality, but this photo of a poster from the FDA History Office gets the point across.



A poor photo of a poster from the FDA history office



The text reads:




During the Great Depression, candy with a "prize" inside -- usually a coin or lead trinket -- was very popular. However, they could be deadly when swallowed by small children. These photos taken by Dr. Chevalier Jackson, a pioneering laryngologist, helped convince Congress to approve a provision in the 1938 Food, Drug and Cosmetic Act and still in force today, which prohibits the sale of trinkets embedded in confections.








share|improve this answer










New contributor




Frank is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.









share|improve this answer



share|improve this answer








edited 12 hours ago









Charles Duffy

1034




1034






New contributor




Frank is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.









answered 12 hours ago









FrankFrank

1212




1212




New contributor




Frank is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.





New contributor





Frank is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.






Frank is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.








  • 2





    Please attribute your image and explain why it's relevant.

    – JJJ
    12 hours ago






  • 1





    @JJJ, ...I've transcribed the text (in what is presently a still-pending edit), which should make the relevance of the rest of the image clear.

    – Charles Duffy
    12 hours ago
















  • 2





    Please attribute your image and explain why it's relevant.

    – JJJ
    12 hours ago






  • 1





    @JJJ, ...I've transcribed the text (in what is presently a still-pending edit), which should make the relevance of the rest of the image clear.

    – Charles Duffy
    12 hours ago










2




2





Please attribute your image and explain why it's relevant.

– JJJ
12 hours ago





Please attribute your image and explain why it's relevant.

– JJJ
12 hours ago




1




1





@JJJ, ...I've transcribed the text (in what is presently a still-pending edit), which should make the relevance of the rest of the image clear.

– Charles Duffy
12 hours ago







@JJJ, ...I've transcribed the text (in what is presently a still-pending edit), which should make the relevance of the rest of the image clear.

– Charles Duffy
12 hours ago













8














Even though a different answer was already accepted, I believe it might be wrong. In a video by Youtube channel "Today I found out" it's explained that this isn't so much because of the choking hazard, but because of a law that forbids non-edible elements in food as long as they don't serve a practical purpose (e.g. the stick in lollipops serves to hold it, so it's allowed, but the egg containing the present in a kinder surprise doesn't have a purpose which is why the eggs are illegal).
It looks like the video was already made some time ago, so I don't know if the answer has been disproved since, but here's the link: https://www.youtube.com/watch?v=ffzbfO0c5Qs






share|improve this answer








New contributor




IceKing1982 is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
















  • 6





    I suspect this is a case of two sources essentially saying the same thing in different ways. Section 401(4) of the Federal Food, Drug, and Cosmetic Act bans imbedded non-nutritive objects in confectionary, but the rational for that law is potential health risks, viz " the consumer may unknowingly choke on the object" (to quote an FDA circular accessdata.fda.gov/cms_ia/importalert_107.html

    – origimbo
    15 hours ago








  • 1





    If that were A Thing, wouldn't King Cakes be banned too?

    – T.E.D.
    14 hours ago








  • 3





    @T.E.D. I could easily see this being an issue for Kinder, and not king cakes, because king cakes are not expressly marketed to children.

    – Machavity
    12 hours ago











  • @T.E.D. From what I am reading, I'm finding that the FDA does indeed ban King Cakes, for the same reason as Kinder Eggs, but that the FDA does not actively enforce it. Being a cultural symbol has its perks.

    – Cort Ammon
    1 hour ago
















8














Even though a different answer was already accepted, I believe it might be wrong. In a video by Youtube channel "Today I found out" it's explained that this isn't so much because of the choking hazard, but because of a law that forbids non-edible elements in food as long as they don't serve a practical purpose (e.g. the stick in lollipops serves to hold it, so it's allowed, but the egg containing the present in a kinder surprise doesn't have a purpose which is why the eggs are illegal).
It looks like the video was already made some time ago, so I don't know if the answer has been disproved since, but here's the link: https://www.youtube.com/watch?v=ffzbfO0c5Qs






share|improve this answer








New contributor




IceKing1982 is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.
















  • 6





    I suspect this is a case of two sources essentially saying the same thing in different ways. Section 401(4) of the Federal Food, Drug, and Cosmetic Act bans imbedded non-nutritive objects in confectionary, but the rational for that law is potential health risks, viz " the consumer may unknowingly choke on the object" (to quote an FDA circular accessdata.fda.gov/cms_ia/importalert_107.html

    – origimbo
    15 hours ago








  • 1





    If that were A Thing, wouldn't King Cakes be banned too?

    – T.E.D.
    14 hours ago








  • 3





    @T.E.D. I could easily see this being an issue for Kinder, and not king cakes, because king cakes are not expressly marketed to children.

    – Machavity
    12 hours ago











  • @T.E.D. From what I am reading, I'm finding that the FDA does indeed ban King Cakes, for the same reason as Kinder Eggs, but that the FDA does not actively enforce it. Being a cultural symbol has its perks.

    – Cort Ammon
    1 hour ago














8












8








8







Even though a different answer was already accepted, I believe it might be wrong. In a video by Youtube channel "Today I found out" it's explained that this isn't so much because of the choking hazard, but because of a law that forbids non-edible elements in food as long as they don't serve a practical purpose (e.g. the stick in lollipops serves to hold it, so it's allowed, but the egg containing the present in a kinder surprise doesn't have a purpose which is why the eggs are illegal).
It looks like the video was already made some time ago, so I don't know if the answer has been disproved since, but here's the link: https://www.youtube.com/watch?v=ffzbfO0c5Qs






share|improve this answer








New contributor




IceKing1982 is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.










Even though a different answer was already accepted, I believe it might be wrong. In a video by Youtube channel "Today I found out" it's explained that this isn't so much because of the choking hazard, but because of a law that forbids non-edible elements in food as long as they don't serve a practical purpose (e.g. the stick in lollipops serves to hold it, so it's allowed, but the egg containing the present in a kinder surprise doesn't have a purpose which is why the eggs are illegal).
It looks like the video was already made some time ago, so I don't know if the answer has been disproved since, but here's the link: https://www.youtube.com/watch?v=ffzbfO0c5Qs







share|improve this answer








New contributor




IceKing1982 is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.









share|improve this answer



share|improve this answer






New contributor




IceKing1982 is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.









answered 15 hours ago









IceKing1982IceKing1982

811




811




New contributor




IceKing1982 is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.





New contributor





IceKing1982 is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.






IceKing1982 is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.








  • 6





    I suspect this is a case of two sources essentially saying the same thing in different ways. Section 401(4) of the Federal Food, Drug, and Cosmetic Act bans imbedded non-nutritive objects in confectionary, but the rational for that law is potential health risks, viz " the consumer may unknowingly choke on the object" (to quote an FDA circular accessdata.fda.gov/cms_ia/importalert_107.html

    – origimbo
    15 hours ago








  • 1





    If that were A Thing, wouldn't King Cakes be banned too?

    – T.E.D.
    14 hours ago








  • 3





    @T.E.D. I could easily see this being an issue for Kinder, and not king cakes, because king cakes are not expressly marketed to children.

    – Machavity
    12 hours ago











  • @T.E.D. From what I am reading, I'm finding that the FDA does indeed ban King Cakes, for the same reason as Kinder Eggs, but that the FDA does not actively enforce it. Being a cultural symbol has its perks.

    – Cort Ammon
    1 hour ago














  • 6





    I suspect this is a case of two sources essentially saying the same thing in different ways. Section 401(4) of the Federal Food, Drug, and Cosmetic Act bans imbedded non-nutritive objects in confectionary, but the rational for that law is potential health risks, viz " the consumer may unknowingly choke on the object" (to quote an FDA circular accessdata.fda.gov/cms_ia/importalert_107.html

    – origimbo
    15 hours ago








  • 1





    If that were A Thing, wouldn't King Cakes be banned too?

    – T.E.D.
    14 hours ago








  • 3





    @T.E.D. I could easily see this being an issue for Kinder, and not king cakes, because king cakes are not expressly marketed to children.

    – Machavity
    12 hours ago











  • @T.E.D. From what I am reading, I'm finding that the FDA does indeed ban King Cakes, for the same reason as Kinder Eggs, but that the FDA does not actively enforce it. Being a cultural symbol has its perks.

    – Cort Ammon
    1 hour ago








6




6





I suspect this is a case of two sources essentially saying the same thing in different ways. Section 401(4) of the Federal Food, Drug, and Cosmetic Act bans imbedded non-nutritive objects in confectionary, but the rational for that law is potential health risks, viz " the consumer may unknowingly choke on the object" (to quote an FDA circular accessdata.fda.gov/cms_ia/importalert_107.html

– origimbo
15 hours ago







I suspect this is a case of two sources essentially saying the same thing in different ways. Section 401(4) of the Federal Food, Drug, and Cosmetic Act bans imbedded non-nutritive objects in confectionary, but the rational for that law is potential health risks, viz " the consumer may unknowingly choke on the object" (to quote an FDA circular accessdata.fda.gov/cms_ia/importalert_107.html

– origimbo
15 hours ago






1




1





If that were A Thing, wouldn't King Cakes be banned too?

– T.E.D.
14 hours ago







If that were A Thing, wouldn't King Cakes be banned too?

– T.E.D.
14 hours ago






3




3





@T.E.D. I could easily see this being an issue for Kinder, and not king cakes, because king cakes are not expressly marketed to children.

– Machavity
12 hours ago





@T.E.D. I could easily see this being an issue for Kinder, and not king cakes, because king cakes are not expressly marketed to children.

– Machavity
12 hours ago













@T.E.D. From what I am reading, I'm finding that the FDA does indeed ban King Cakes, for the same reason as Kinder Eggs, but that the FDA does not actively enforce it. Being a cultural symbol has its perks.

– Cort Ammon
1 hour ago





@T.E.D. From what I am reading, I'm finding that the FDA does indeed ban King Cakes, for the same reason as Kinder Eggs, but that the FDA does not actively enforce it. Being a cultural symbol has its perks.

– Cort Ammon
1 hour ago


















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