(March 19, 2013 – edited to remove private party name.)
I just received a response from the CPSC from my email. I hate to put all of it on here for you, but I will so you can see the whole thread. My comments are in blue, theirs are in green. No need to point out their inconsistencies in logic. You’ll see for yourself…
I was wondering if you could clarify the ban on Ferraro Kinder Surprise Eggs in the United States. From my research, I can find two given reasons, but neither makes sense. The 1938 Federal Food, Drug, and Cosmetic Act prohibits embedding “non-nutritive items” in confections. However, King’s Cakes, Cracker Jacks, and especially the Choco Treasure Egg violate this law. In fact, the Choco Treasure is almost exactly like the Kinder Egg except the quality of chocolate is poor, the capsule is huge, and the toys are uninteresting. If the law is going to be enforced with Kinder Eggs, should it not be enforced with these other confections also? The second factor is the 1997 recall in which your organization stated, “Some of the toys have small parts that present a serious choking and aspiration hazard to children under three years of age… Ferrero said that it markets the product in other countries solely for children three and older and designs these toys to be assembled by older children.” Please explain how you instituted a recall based on the parts being too small for children under the age of three when the eggs are clearly labeled that they are only intended for those over the age of three. You even posted in your recall that Ferraro does not market them for those less than 3 years of age. It seems to me that there is a double standard and a loss of personal freedom when it comes to the Ferraro Kinder Surprise Egg. Ferraro sells 1.5 billion eggs worldwide each year. Since 1997, there have been 7 documented cases of children fatally choking on the toys inside the eggs. If you factor in the 30 billion made since 1991, you get a .023% mortality rate. A child has a higher chance of being killed by lightning than dying by Kinder Egg. The American parent has every right to decide what their child can and cannot eat. Ferraro has clearly labeled their product. It is up to the American parent to decide if the Surprise Egg is appropriate for their child or not. I hope you can provide me and the thousands of other unhappy with this ban with an explanation.
Thank you for contacting the U.S Consumer Product Safety Commission (CPSC) regarding Kinder Surprise Eggs. You asked us to clarify the ban on Ferraro Kinder Surprise Eggs in the United States. The CPSC staff considered the toys marketed with Ferarro Kinder Surprise Eggs to be intended for children under three years of age. Therefore, they must comply with the small parts requirement under 16 C.F.R. Part 1501. When the toys within the plastic shells that are enclosed in the chocolate, contain small parts and are intended for children under age three years, they are considered banned in the U.S. and cannot be sold. If the toys inside the plastic shell of the chocolate egg does not contain small parts, they are not banned in the United States. In determining what toys and children’s articles are subject to the small parts requirement, CPSC staff considers the following factors under 16 C.F.R. § 1501.2(b): “[T]he manufacturer’s stated intent (such as on a label) if it is a reasonable one; the advertising, promotion, and marketing of the article; and whether the article is commonly recognized as being intended for children under 3.” It is prohibited to sell, offer for sale, manufacturer for sale, distribute in commerce or import in the United States any toy intended for children under three years of age that contains small parts. I am attaching a copy of the Kinder Chocolate Egg recall and the regulation on small parts.
If you have any further questions, please feel free to email me.
I currently live in Germany (military spouse) and grew up with Kinder Eggs. I have seen the label on them many time. They are very clearly marked for OVER the age of three. Therefore, the justification of the CPSC does not stand. Ferraro has also said the product is intended for over three. Your email stated, “”[T]he manufacturer’s stated intent (such as on a label) if it is a reasonable one; the advertising, promotion, and marketing of the article; and whether the article is commonly recognized as being intended for children under 3.” I am sure the Ferraro company, which is very successful, is perfectly capable of marketing this product for those over three. I also believe parents are capable of reading the clearly posted label. I’d be happy to scan in a label and email it for you to see. There are many products sold in the United States that are also labeled for over three. Are they also going to be removed from the shelves?
Thank you for your response. I know I am not the only one frustrated with this ridiculous ban and hope that the CPSC will reconsider
preventing a product that millions of children around the world have enjoyed since 1973.