The 1938 Federal Food, Drug, and Cosmetic Act contains a section highlighting that a confectionery product with a non-nutritive object, partially or totally embedded within it, cannot be sold within the United States, unless the FDA issues a regulation that the non-nutritive object has functional value.[9] Essentially, the 1938 Act bans “the sale of any candy that has embedded in it a toy or trinket”
FDA re-issued their import alert stating “The embedded non-nutritive objects in these confectionery products may pose a public health risk as the consumer may unknowingly choke on the object”
Kinder Surprise already bears warnings advising the consumer that the toy is “not suitable for children under three years, due to the presence of small parts” and that “adult supervision is recommended”