The Candy That Won't Make It Past Customs
WHY YOU SHOULD CARE
Because this treat comes with a toy. Yum.
By Tracy Moran
They’re lined up in formation, fully loaded with chocolate goodness and armored in bright foil wrappers that pop under the fluorescent bulbs. The normal grocery store minefields for time-pressed parents — candies and toys strategically positioned like roadside IEDs — give way this time of year to thousands of chocolate eggs and bunnies, poised for battle in the war known as … Easter.
We live in England, where Hershey bows to European confectioners like Ferrero, Lindt, Cadbury, Nestlé and Ritter. My 6-year-old daughter, Gabi, joins ranks with the foiled wonders and takes aim. “Please, Mommy, can I have a Kinder Surprise?” she begs, before I’ve even laid claim to a cart. She’s referring to the hollow chocolate eggs that contain a hidden toy surprise. I rarely surrender, but this year I know something Gabi doesn’t: It’s my English-born American daughter’s last year to gobble up her favorite treat, because we’re moving back to the United States, where federal regulations forbid its sale. So I take the hit with a feeble bribe: “Yes, but only if you’re good.”
Children have been chomping on chocolate eggs for centuries. But parents have Italian entrepreneur Michele Ferrero — who died in February 2015 — to thank for shaping chocolate to suit kiddie-specific tastes at the supermarket. Ferrero’s firm got its start under his father, Pietro, who, inspired by postwar austerity, experimented with adding hazelnuts to chocolate and created a money-saving spread that would later become the world-famous Nutella.
His son, in turn, would see to the company’s international success two decades later, launching other products such as the Kinder line, Ferrero Rocher, Mon Chéri and even Tic Tac mints. Ferrero’s representative tells OZY that Michele dreamed up the Kinder line, designed specifically for young Teutonic tastes, after noticing that German “stores only provided chocolate products for adults,” not children. He changed all of that in the late 1960s with a milk-chocolate-filled tablet devoid of preservatives or food colorings, aimed at pleasing both youngsters and their nutritionally wary parents.
Since the Renaissance, eggs and Easter have gone hand in hand for Europeans. Italian children have been cracking open giant chocolate eggs with surprises hidden inside for hundreds of years, which inspired Ferrero to create the Kinder Surprise in 1972. The tiny egg — with its milk chocolate shell, white chocolate lining and toy-filled capsule hidden inside — may be steeped in Easter tradition, but it’s sold year-round and comes in even bigger sizes for Easter.
By mixing a sweet treat, playtime and a colorful surprise, these eggs have cracked their way into the hearts of millions of children worldwide, with more than 40 billion sold in 70 countries to date. Gabi, born in England and raised partially in Germany, took to this European tradition like a natural, but my green-eyed chocolate monster is about to face a Kinder drought. The eggs are sold to the north and south of the United States — they were introduced in Canada in 1975 and Mexico boasts a newly opened factory — but carting them across the border is a no-no.
Under federal law, says the Food and Drug Administration’s Theresa Eisenman, “it would be illegal to have these objects within the food products,” referring to Ferrero’s plastic capsules and the 1938 Federal Food, Drug and Cosmetic Act. Just two months ago, her agency issued an import alert noting that the toy capsules violate a section of the act banning the sale of confectionery with partially or completely embedded non-nutritive objects. “[Kinder Surprise eggs] are subject to detention as ‘adulterated food,’” she says, citing choking concerns. But the company says that the toy is not firmly attached to the chocolate and is thus “not ‘embedded,’ as it moves freely within the egg.”
The proscription against toy-embedded candies extends beyond the FDA. The Consumer Product Safety Commission’s Federal Hazardous Substances Act also bans small parts in children’s products, so the Kinder Surprise has egg on its face from two legal fronts. “It’s a sensitive issue,” says Alexander Filip of the CPSC, referring to well-intentioned grandmothers who “find them and bring them over as gifts” only to have the eggs confiscated at customs. But Filip’s agency is restricted in where it spends its time and resources, noting that “we have children who are dying because of other products.” It’s the higher-risk items, in other words, that get feds’ attention.
So maybe the long arm of the law isn’t quite so long after all. It seems neither the FDA nor the CPSC has the money (or means) to chase passengers or retailers bringing in relatively small numbers of these eggs, whether for sale or personal consumption. But U.S. Customs and Border Protection definitely has the right to seize Kinder Surprise eggs lurking in baggage that comes from overseas, says Jennifer Evanitsky, from the agency’s media division. “[They] may be confiscated … and may result in CBP enforcement action,” she says. Egg-toting offenders may be subject to fines.
So what about simply having them shipped internationally? Andrei Koltchin’s mail-order site, BuyChocolateEggs.com, is among those that ship worldwide, with the recipient bearing the legal responsibility. If a package gets returned, Koltchin adds, “then we do a full refund.” But he admits that sales to the states haven’t taken off, because folks are worried about the legal restrictions.
There’s another explanation for Koltchin’s low U.S. sales: Two Americanized versions of the Kinder Surprise recently hit the market. Yowie Group offers mythical chocolate creatures molded around a toy-filled capsule. The toy collectibles come in a single piece, as opposed to Kinder’s assembly-required collection of small toy parts. The absence of small parts and a visible plastic ridge between the chocolate halves are the primary reasons Yowie gained entry to the U.S. last year, and while the firm won’t release sales figures, its representative tells OZY that it’s focused solely on America, notably where Kinder Surprise can’t compete. There’s also Choco Treasure, which offers a similarly designed egg-shaped version, complete with toys inside, and says “sales have grown exponentially,” according to marketing manager Debra Quizby.
They can make it really safe and nobody will buy it, or they can make it really appealing and it’ll be really dangerous.
—Alexander Filip, Consumer Product Safety Commission
But for some, only the original will do, and the U.S. ban on Kinder Surprise has filled many a column inch, blog and even an online petition aimed at getting it lifted. In its defense, Ferrero contends that more than 35 billion of its beloved eggs have been sold since the first EU Council Directive on toy safety (1988/378) without serious incident. The company acknowledges two fatal accidents in the 1980s, but says there was “no causal link between the incidents and the combination of the toy and the egg.” The deaths, Ferrero’s representative says, occurred long after the eggs were opened and involved very small parts that have since been abolished. The deaths led to a parliamentary debate in the U.K., prompting a British minister to respond, “All fatalities are regrettable, but the world is full of small objects, which can cause death by choking.” Bill Durodié, a professor at the University of Bath who has written about choking hazards in products, concurs. He tells OZY that banning such products makes little sense because “children are at greater risk of choking on their meals than on the items they contain.”
Ferrero refuses to be baited on whether it’s trying to gain entry to America or not, but the CPSC’s Alexander Filip says the Italy-based confectioner is in discussions with U.S. regulators. The biggest challenge? Making a product that’s both safe and sells. “They can make it really safe and nobody will buy it, or they can make it really appealing and it’ll be really dangerous,” Filip says. Ferrero’s representative says simply that the “safety of our consumers is paramount,” and that the company refrains from marketing to children under the age of 12.
It’s a scrambled situation, but one that essentially boils down to this: Americanized versions are beginning to gain ground by making the plastic toy capsule visible between the chocolate parts, which means the available market share will only shrink from here. Ferrero, in other words, needs to hurry if it plans to hook U.S. children on the original Kinder Surprise.
I have it on good authority that Gabi will get lots of her favorite sweets this Easter, starting with today’s trip to the store. And she seems to sense it too, cheekily bidding for another: “Can I have two?” But for a similar haul next year, she’ll either have to make do with an American version, hope Ferrero manages to sweet-talk the feds or wait and see just how far the Easter Bunny can hop.
This OZY encore was originally published on April 5, 2015.