In January 2011, Manitoba resident Lind Bird was stopped at the US border in northern Minnesota and selected for a random search of her vehicle. During the search, US border officials found and seized a small piece of contraband. Bird was unaware that the item was illegal to bring into the US, but she was informed that she could face a $300 fine if she was caught with it in the country.
Bird was allowed to continue her trip, but a few days later she received a seven-page letter from the US government asking her to formally authorize the destruction of the item that was seized or pay $250 for them to store the item if she wished to contest the seizure.
The item in question was a small chocolate egg with a toy inside, called a Kinder Surprise.
Understandably, Bird found the entire ordeal quite bizarre.
"It's just a chocolate egg," Bird said. "And they were making a big deal…It's ridiculous. It's so ridiculous."
When she got the letter, she had trouble taking it seriously. "I thought it was a joke,” she said. “I had to read it twice. But they are serious."
A similar incident took place in June 2012, when two Seattle men were driving back into the US after a visit to Vancouver. After border officials discovered six Kinder Surprise eggs in their car, the men were detained for two hours and told by a border guard that they could be fined $2,500 per egg.
“I thought [the American border guard] had done his search and hadn’t found anything, and he was joking with us,” said Chris Sweeney, one of the men detained.
“He wasn’t joking.”
“We really didn’t know what was going to happen,” Sweeney continued. “I didn’t know if maybe this was some really important thing that I just wasn’t aware of and they were going to actually give us the fine of $15,000.”
After waiting for 2 hours, the men were allowed to carry on with their trip and take the eggs with them.
“If it was so important that we be stopped and scolded and threatened with thousands of dollars in fines, you’d think it would at least be important enough for them to take [the Kinder eggs], but they didn’t,” Sweeney said.
“Keeping the border secure is obviously important,” he continued, “but somebody needs to take a common sense look at this rule and probably just get rid of it.”
A Dangerous Product?
These two stories are hardly isolated incidents. In 2011, roughly 60,000 Kinder Surprise eggs were seized at the US border. That number was down to 30,000 in 2015, but the scope of the seizures is clearly still significant. Unsurprisingly, attempts to bring the eggs into the US tend to surge in the lead-up to Easter.
To be fair, a hefty portion of these seizures is likely related to intentional smuggling operations related to the black market (yes, there’s a black market for these). Still, countless ordinary people like Lind Bird and Chris Sweeney are clearly impacted as well.
It’s hard to blame normal travelers like Bird and Sweeney for being unaware of the law. Though Kinder Surprise eggs are illegal in the US, they are perfectly legal and quite well-known in most other countries including Canada, Mexico, and the UK.
For context, Kinder Surprise eggs are sold by the Italian company Ferrero, which first introduced them in 1974 and now sells roughly 1.2 billion eggs per year. The eggs are hollow and contain a capsule that has a small toy inside—but you never know which toy you will get, hence the surprise. They are loved by children around the world, and the toys are collected by thousands of collectors.
Kinder Surprise eggs are banned in the US because of safety concerns related to having a “non-nutritive object” like a plastic capsule inside a confectionary product. According to the 1938 Food, Drug, and Cosmetic Act, this makes Kinder Surprise eggs an “adulterated food” and thus illegal to import and sell.
“Kinder eggs are prohibited just like narcotics are prohibited,” said U.S. Customs and Border Protection spokesperson Mike Milne, commenting on the Sweeney incident. “Our officers, if they encounter prohibited stuff, they’re subject to seizure.”
Commenting in 2011, a spokesperson for Ferrero gave further clarity regarding the law. “Kinder Surprise is not available in the United States as the [FDA] has taken the position that a specific regulation relating to non-nutritive objects embedded in food stuff makes Kinder Surprise not suitable for sale and distribution in the US,” they said.
Ferrero takes safety very seriously, of course, which is why Kinder Surprise packages come with a warning label about the toy. But even though this is sufficient for most other countries, the US refuses to lift the ban.
An import alert published by the FDA specifically regarding Kinder Surprise eggs sums up the argument for keeping the ban in place. “The imbedded non-nutritive objects in these confectionary products may pose a public health risk as the consumer may unknowingly choke on the object,” it reads.
How significant is this risk? An estimated 10 children have died choking on Kinder Surprise toys in the nearly five decades the eggs have been sold. Each of these deaths is a tragedy, of course, but considering the billions of Kinder Surprise toys that are out there, it seems clear the risk is fairly minimal. Suffice it to say, far more dangerous things remain perfectly legal.
After an investigation into one of the Kinder-related deaths, the UK Department of Trade and Industry issued a report which sheds some important light on the issue.
“…the death did not occur as a result of the child biting into the egg, and it appears that eating the egg and swallowing the set of wheels were separate events… It is an unfortunate fact that the world is full of small objects which can cause the death of a child by choking. This tragic death emphasizes again the need for parental vigilance.”
Most of the other deaths were likewise probably separate events from consuming the egg, so the fact that the toy was initially inside the egg wouldn’t have made a difference. Could a child confuse the toy for something edible because it’s inside the egg to begin with? Perhaps. But given the design of the egg and capsule, it’s pretty hard to make that mistake, even for a young child.
In recent years some Kinder Surprise-inspired products have been legally introduced in the US, such as Choco Treasures (2013) and Kinder Joy eggs (2017). Though these launches have led some to believe that the ban has been lifted, this is not the case. The new products were carefully designed to get around the ban by not putting the toy inside the chocolate. The original Kinder Surprise remains illegal in the US to this day.
Risk and Restrictions
Though the safety issue is certainly something to take seriously, it’s hard to see how an outright ban on products like this is reasonable. It’s not the state’s job to micromanage our lives. People take risks all the time, from skydiving to driving to having an unhealthy diet. Should the state restrict our freedom in those areas as well, simply because they think we’d be better off for it?
Some may contend that things are different when it comes to children, and that restricting certain parental decisions like what food they can give their children is reasonable since parents don’t always make the best choices. There are a few issues with this point, however.
For one, children choke on other foods like hotdogs, grapes, and hard candies all the time. In the United States, roughly 140 children choke to death each year on items such as these. To be consistent, someone endorsing a Kinder Surprise restriction because of the risks to children should also endorse restrictions on hundreds of other foods, many of which cause far more deaths than Kinder Surprise toys. Fortunately, most people realize that such restrictions would simply be too intrusive. Surely bans are all the more unjustified for Kinder Surprise eggs, which carry a fraction of the risk?
The other thing to keep in mind is that the law as currently written has nothing to do with children or parents. It doesn’t say “parents may not give their children confectionary with non-nutritive objects inside.” It simply prohibits these products outright, even for adults.
So the issue here isn’t really about children. The issue is plain old paternalism. The FDA is effectively saying to every American, “for your own good, we won’t let you buy this.”
The Problem with Paternalism
John Hospers explains the overarching debate about paternalism quite well in a 1980 paper for the Journal of Libertarian Studies.
“In his book Principles of Morals and Legislation,” Hospers begins, “the eighteenth-century philosopher and legislator Jeremy Bentham divided all laws into three kinds: (1) laws designed to protect you from harm caused by other people; (2) laws designed to protect you from harm caused by yourself; and (3) laws requiring you to help and assist others. Bentham held that only the first kind of laws were legitimate; and in general libertarians would agree with him.”
The second kind of laws are called “paternal legislation,” Hospers notes, and this is the category that the Kinder Surprise ban falls under.
“Legal paternalism,” Hospers continues, “is the view that the law should, at least sometimes, require people to act (a) against their will (b) for their own good, in that way protecting them from the undesirable consequences of their own actions. The term derives from the Latin "pater" (father): just as a kind father protects his children against harm and danger, pulling the child away from the speeding car or from the precipice down which he is about to fall, so the State should protect its citizens, not only against harm inflicted on them by other citizens, but also against harm which they might inflict on themselves. Thus, according to legal paternalists, the State should prohibit drugs because otherwise people might take them, and even if the danger is only to their own health or life the State should protect such values for them if they are too foolish or incompetent to do so for themselves. Or again, the State should protect people from their own profligacy by forced savings, such as social security.”
There are two primary arguments that are often advanced in favor of legal paternalism. The first is that, if allowed to take foolish risks, people may harm themselves and thus impose costs on other members of society. These others might include taxpayers who must fund social safety nets or family and community members who may have to carry an extra burden—say, of caring for someone who, because of their recklessness, has become disabled. According to this argument, preventing people from taking excessive risks is legitimate because of the possible negative repercussions on others.
The second argument is simply that it’s sometimes necessary and acceptable to restrict people’s actions “for their own good.” Even if no one else is impacted, says this approach, the State still has a legitimate role in protecting people from themselves.
The argument against paternal legislation is that such laws violate people’s freedom to live their lives as they see fit. If someone wants to take a risk we deem inappropriate, that’s their right, and it’s not our place to interfere with that choice. True, people’s choices may have negative consequences, but that doesn’t justify coercive laws. In this view, personal agency is vital to uphold, even if people use it irresponsibly, as they inevitably will.
The English philosopher John Stuart Mill summarized this position well in his famous essay On Liberty.
"Neither one person, nor any number of persons is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it. … The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right."
We all have different opinions about the right way to go about life. In particular, we have different opinions about what risks are appropriate and inappropriate.
In our personal lives, we generally recognize that forcing our opinions on others is wrong. We don’t go up to people on the street and threaten to assault them if they make a decision we disagree with, or one we think would be bad for them. But using the government to compel people is basically doing exactly that. Every law is backed with not just fines but a gun, after all, as Lind Bird and Chris Sweeney know all too well.
Is it right to use the threat of a gun to tell others how to live their lives?
For me, it’s a hard no.
This article was adapted from an issue of the FEE Daily email newsletter. Click here to sign up and get free-market news and analysis like this in your inbox every weekday.