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kinderproject-blog · 6 years ago

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This project explores the politics of food in the United States specifically looking at the Federal Food, Drug, and Cosmetic act. Furthermore, I will be using the Kinder Surprise Egg as a demonstration as a way to show the impact of lobbying on American food selection. I will then explore the M&M and how its existence is a staple to American culture. While these are both milk chocolate products, the fact that the Kinder Surprise Egg is from a company based outside the United States has been a key reason that the product has remained banned and thus not infiltrated traditional American culture. This will further lead into my discussion of desire, fandom and exceptionalism as ways that these two products have battled over the last fifty years.

In order to comprehensively research this topic, I have decided to dig deep into the legislation and lobbying associated with the Federal Food, Drug, and Cosmetic act and the direct impact on the Kinder Surprise Egg. I will look at how the Mars Company has tried to keep this particular product banned, if such existence of any evidence exists. I will also examine the current variant of the Kinder Surprise Egg to see if the current legislation is relevant and how the idea of its illegality has changed over the last few years. I am using Tumblr to help visualize this project because I believe there are very valuable images that need to be shown in order to have the complete effect intended.

The Kinder Surprise egg was first introduced by Ferrero, an Italian chocolate company, since 1974. The creator of the egg, William Salice, wanted kids to have a “surprise” every time they opened one of these eggs, essentially like a daily Easter. [1]Ferrero, at the time, had a great reputation as a leading European chocolate maker, but they did not offer a product that was solely designed for kids. Because the Federal Food, Drug, and Cosmetic act had banned any objects inside of any edible product, the Kinder Surprise Egg was never able to reach United States consumers. However, whenever Americans go to Europe, these products are very popular, which have brought somewhat of a cult following with Kinder Surprise Egg lovers. For example, when I went to Ireland, I brought a few of these eggs back to the United States (this was and still is illegal at the time). This is quite different than the history of the M&M. The M&M was designed by Forrest E Mars in Newark, New Jersey and introduced in 1941. In the 1950s, due to their immense popularity, they had to stamp each individual M&M with the iconic “m” in order to stop imitators. [2]In other words, the M&M had over 25 years with the American market and immediately became a staple of American culture. In fact, doctors would even “prescribe” M&Ms because Americans were getting too addicted to the chocolatey treat. The fandom that it received was crazy in the United States, and even today, it is the most popular chocolate in the United States with over 400 Million M&Ms made daily by the Mars Company. [3]For the Kinder Surprise Egg, this fandom in the United States came much later, and is still growing quickly today. There is about 1.5 billion Kinder Surprise Eggs made yearly[4], which is obviously dramatically lower than the amount M&Ms are made in a week. There are may reasons for this, but the most common is the price. These aren’t meant to be cheap like an M&M is. They are sold solo and for around $3, when converted to the Dollar. M&Ms, on the other hand, are sold by the pack, and can cost as little as a $1.

Next, I am going to explore the history of the Federal Food, Drug, and Cosmetic Act and the role it has in the banned status of the Kinder Surprise Egg. The Federal Food, Drug, and Cosmetic Act was signed in 1938 as a way to protect consumers with the introduction of food standards. This covered three categories: Standards of Identify, Standards of Quality, and Standards regulating the fill of container.[5] In particular, the Kinder Egg violates the part of the Act, Section 402(d)(1), which states that “that confectionery having partially, or completely imbedded therein, any non-nutritive object is adulterated unless FDA has issued a regulation recognizing that the non-nutritive object is of practical functional value to the confectionery product and would not render the product injurious or hazardous to health”[6]. The reason this Act was introduced was actually due to a drug accident in 1937, called the Elixir Sulfanilamide Incident. Essentially, a manufacturer mixed a perfectly safe antibiotic, sulfanilamide, with a highly poisonous toxin known as diethylene glycol. This killed over 100 people, and forced Congress to ensure quality of both food and drugs. The reason that the part of the Act that the Kinder Egg infringes on is in the Act is due to the prevention of gross negligent manufactures, not necessarily the intentional use of any object in food as the Kinder Egg does. Nevertheless, there has been exemptions to this rule, such as a stick in a lollipop. The reason is the government believes these eggs are a major choking hazard to kids under three years old. There has only been one confirmed death due to choking on the toys in the egg; this happened to a three-year-old girl in France and died of brain damage. Given that over a billion of these eggs are produced annually, one death does not seem to be too much, and did not result in a ban in France.

This section of the Act was challenged in 1997, by Nestle. Nestle is another major chocolate maker in the United States, however itself is a Swiss company, so they wanted to move forward with a product that would closely resemble a Kinder Egg. This product was called the Nestle Magic Ball. As this product was about to reach the United States market, the Food and Drug Administration actually told Nestle that their product was illegal to sell due to the Act.[7] This is actually where things got really interesting, for both the Kinder Surprise Egg, and for the food lobbying industry.

There’s nothing more American than lobbying and food, so what does the intersection of the two bring? It’s actually quite remarkable. Nestle had much more money than Ferrero at the time, and still does today. Nestle is actually the biggest food company in the world, with a market capitalization of $281 billion dollars.[8] Ferrero, a privately-owned company, is worth a modest 22 billion dollars. Therefore, unlike Ferrero, Nestle had the war chests for a lengthy fight with the Food and Drug Administration. They went ahead and started selling the Magic Ball in the United States, claiming they “feel it is legal and is was simply a technical issue”, according to the Vice President for Corporate and Brand Affairs for Nestle at the time.[9] Nestle decided to try to start lobbying to try to ensure that their product would be legal; they first tried with the Agricultural Appropriations Bills.[10] They went to the Consumer Product Safety Commission, which showed in their tests that the product was not actually a choking hazard. The FDA was not amused, with the associate commissioner for policy saying “This product is illegal under our act”. According to Rosa DeLauro, a former House Representative for the State of Connecticut, Nestle lobbyists tried to have special language placed in the Agricultural Appropriations Bill that would have forced the FDA to back off and explicitly allow the Magic Ball. The sole Representative to support the language actually lived in a district that had a Nestle plant. This effort eventually failed, so Nestle was unable to use legislation to allow their product. One story that I want to bring up is Mars’ role in this. As I talked about earlier, Mars’ was the leader of the chocolate industry at the time so obviously they would not want this product, which would inevitably bring the Kinder Surprise egg too, in the United States. Although Mars’ never officially put out a statement condemning the product, they did a majority of their work under the disguise as consumer protection groups. Mars’ legal counsel stated that they were the one who were paying for the large effort against Nestle, although he initially denied that claim. In order to keep the desire of the American People, Mars’ had to resort to getting the public opinion against the Nestle Magic Ball. This all goes back into American Exceptionalism, with Mars’ believing that they had to be the best chocolate in the United States with the highest possible public opinion. In fact, they argued that the toys in both the Magic Ball and the Kinder Surprise Egg used cheap Chinese toys designed to “barely pass the choke tube test” that the CPSC used to say the product was not a choking hazard. They wanted the American People to distrust foreign food companies, marking them as unsafe and dangerous, so that the people would turn to the companies they have loved for generations before. In the United States, there is this idea that only the products produced in the United States is of the highest quality, even though it is pretty well known that the chocolate industry was created and thrives the most from European manufacturers. It was a way to protect the American identity with the idea of “Americanness” being someone who eats an M&M. In large part, they were very successful; both the Kinder Surprise Egg and the Magic Ball are still illegal today.

Due to the unsuccessful legal battles, Kinder was forced to rethink their strategy and created a new product: Kinder Joy Egg. [11]This product is quite different than the original Surprise Egg, as one half of the egg is the toy with the other half being a chocolate treat. Due to the influence by Mars’, Kinder was forced to adapt to fit in with American Culture. Even now, avid fans of the original Kinder Surprise Egg were disappointed when the Kinder Joy was available in the United States, even opting to wait until their next trips to Canada or Europe for their fix of a Kinder Surprise Egg.[12] The reason that the Kinder Surprise Egg is still illegal today is not due to lack of interest; many Americans crave this unique product, but rather the looming threat of the Mar’s Company willing to take down any threat of change. Therefore, Kinder succumbed to the pressure to release a product that Mar’s is acceptable with. While an abstract idea of assimilation, I believe this is what Kinder has done in order so they can achieve some market share with the American People.

In conclusion, the Kinder Egg has faced numerous legal hurdles in coming to the United States as a direct result of the Mar’s Company. Due to the threat of interfering with American Exceptionalism, Mar’s has made it a priority to diminish the reputation of Ferrero (along with Nestle with regards to the Nestle Magic Ball). They have used both legislative means and brainwashing the public opinion in order to achieve this goal, which have both been extremely successful. While both the Kinder Surprise Egg and the M&M have very active fan bases, the simple matter is that since Mar’s has aggressively made it nearly impossible to try a Kinder Surprise Egg in the United States, thus the desire has not reached a point where it can become mainstream. While I would love to create the change to bring the Kinder Surprise Egg to the United States, it currently is too hard and too expensive, even for a multibillion-dollar company such as Ferrero, to be willing to take on at his threat. For Mars, it simply is protecting what it believes to be an ideal American Lifestyle with the delicious chocolate product known at the M&M.

Bibliography:

“Chocolate Toy Withdrawn.” The New York Times. The New York Times, October 2, 1997. https://www.nytimes.com/1997/10/02/us/chocolate-toy-withdrawn.html.

“Federal Food, Drug, and Cosmetic Act.” Food And Drug Administration. FDA, n.d. https://www.fda.gov/aboutfda/whatwedo/history/productregulation/ucm132818.htm.

“Import Alert 34-02.” accessdata.fda.gov. Accessed December 6, 2019. https://www.accessdata.fda.gov/cms_ia/importalert_107.html.

Lewis, Neil A. “Giants in Candy Waging Battle Over a Tiny Toy.” The New York Times. The New York Times, September 28, 1997. https://www.nytimes.com/1997/09/28/us/giants-in-candy-waging-battle-over-a-tiny-toy.html.

“M&M's Candy.” CDs, Super Glue, and Salsa: How Everyday Products Are Made: Series 3. Encyclopedia.com, December 5, 2019. https://www.encyclopedia.com/education/culture-magazines/mms-candy.

“M&M'S History.” M&M'S History. Accessed December 6, 2019. https://www.mms.com/history.

Marcelis, David. “Americans Can Finally Buy Kinder Eggs-Just Not the Ones They Want.” The Wall Street Journal. Dow Jones & Company, March 21, 2018. https://www.wsj.com/articles/americans-can-finally-buy-kinder-eggsjust-not-the-ones-they-want-1521642505.

“Nestlé on the Forbes World's Best Employers List.” Forbes. Forbes Magazine. Accessed December 6, 2019. https://www.forbes.com/companies/nestle/#157ec44b5512.

Sanna, Cristiano. “Addio Al Papà Dell'Ovetto Kinder, in Tutto Il Mondo Ne Sono Stati Venduti 30 Miliardi.” Tiscali Notizie. Accessed December 6, 2019. https://notizie.tiscali.it/cronaca/articoli/ovetto-kinder-inventore-morto/.

[1] https://notizie.tiscali.it/cronaca/articoli/ovetto-kinder-inventore-morto/

[2] https://www.mms.com/history

[3] https://www.encyclopedia.com/education/culture-magazines/mms-candy

[4] http://www.todayifoundout.com/index.php/2017/08/kinder-surprise-eggs-banned-united-states/

[5] https://www.fda.gov/aboutfda/whatwedo/history/productregulation/ucm132818.htm

[6] https://www.accessdata.fda.gov/cms_ia/importalert_107.html

[7] https://www.nytimes.com/1997/10/02/us/chocolate-toy-withdrawn.html

[8] https://www.forbes.com/companies/nestle/#157ec44b5512

[9] https://www.nytimes.com/1997/09/28/us/giants-in-candy-waging-battle-over-a-tiny-toy.html

[10] https://www.nytimes.com/1997/09/28/us/giants-in-candy-waging-battle-over-a-tiny-toy.html

[11] https://www.wsj.com/articles/americans-can-finally-buy-kinder-eggsjust-not-the-ones-they-want-1521642505

[12] https://www.wsj.com/articles/americans-can-finally-buy-kinder-eggsjust-not-the-ones-they-want-1521642505

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