Why Kinder Surprise Eggs Are Illegal In The United States

The Kinder Surprise Egg has been delighting children in many parts of the world since the Italian candy company Ferrero introduced the product in 1974. For the uninitiated, the Kinder Surprise Egg is a chocolate egg that opens up to reveal a plastic capsule with a toy inside. If you're reading this in the U.S., you can't be faulted for not knowing what this treat is since it's banned. Although it is available in both Mexico and Canada. 

The U.S. Food and Drug Administration, which "is responsible for protecting the public health by ensuring the safety of" the U.S. "food supply" (per the agency website), doesn't allow for the importation of the Kinder Surprise Egg. It's just one of 13 international foods you can never taste in the U.S., like fresh Jamaican ackee fruit or haggis, the Scottish national dish made from sheep's organs. In the case of the Kinder Surprise Egg, the FDA has determined the product doesn't conform to the 1938 Federal Food, Drug, and Cosmetic Act and is also considered a choking hazard.

The watershed 1938 Act allowed the FDA to come up with food standards and regulate medical devices and cosmetics. In this capacity, the agency has overseen some of the biggest food recalls in history, including Odwalla juice in 1996 and bagged spinach a decade later due to E. Coli outbreaks in both types of products. The Kinder Surprise Egg, according to the FDA, violates the 1938 Act since any "confectionery having partially, or completely imbedded therein, any non-nutritive object is adulterated" and therefore illegal to import or sell. This isn't the only time the feds have weighed in on chocolate issues. Until 2002, the FDA didn't consider white chocolate to be chocolate since it only contained cocoa butter, not cocoa solids, like milk or dark chocolate. The administration has since revised its stance on the subject, though. 

The FDA also considers Kinder Surprise Eggs to be a choking hazard, and has outlawed the importation of the candy. Travelers coming into the U.S. have had their Kinder Eggs confiscated and have even been threatened with heavy fines. In 2015 alone border agents seized 30,000 of the treats. "Kinder eggs are prohibited just like narcotics are prohibited," Mike Milne, a spokesperson for the U.S. Customs and Border Protection agency, told FEE Stories in 2023. "Our officers, if they encounter prohibited stuff, they're subject to seizure."

Champions of the Kinder Surprise Egg argue that the FDA isn't playing fairly since other food items, like fortune cookies, contain a "non-nutritive object" inside them. As for the candy egg's potential as a choking hazard, there have been a few incidents over the years, but are a tiny number considering Ferrero sells 1.2 billion of the eggs a year.

In the United Kingdom in the 1980s, there were three reported cases of children dying after ingesting the small parts of toys found inside the eggs. Among these, in 1985, a 3-year-old boy in Northern Ireland died after ingesting part of a toy car. Then in 2016, a 3-year-old in France choked on a plastic wheel from a Kinder toy, which led to her death. In these cases Ferrero hasn't been found liable for the deaths. The company includes a choking hazard warning on the eggs. In the U.S., consumers will have to be satisfied with the Kinder Joy, Ferrero's Americanized version of the Surprise Egg, which has a toy separate from the candy.