Jharel S. asks: Is it true that Kinder Surprise are illegal in America?
For the uninitiated, Kinder Eggs are a chocolate treat widely available throughout Europe, Mexico and Canada, with the company that makes them, Ferrero (perhaps better known in the U.
S. for being the makers of Nutella), selling a whopping 1.5 billion of the eggs per year. Where they don’t sell any is the United States, where the eggs are indeed illegal (though something of a blackmarket does exist for them). So why is a beloved candy the world over explicitly banned in the land of the free?In a nut-or in this case egg-shell, Kinder Eggs are illegal in the states because they break a rule in the 1938 Food, Drug and Cosmetic Act. Regarded as a “watershed in US food policy” the act was drafted to protect the public from unscrupulous, or sometimes just negligent, manufacturers. It was made law on the back of several highly publicised cases of poisoning, most notably the deaths of 107 people (the majority of whom were children) in what became known as the The 1937 Elixir Sulfanilamide Incident.
It had long been known that the previous laws the FDA were operating under, most notably the Pure Food and Drugs Act of 1906, were woefully inadequate for protecting consumers, but the Elixir Sulfanilamide Incident sparked major public awareness of the issue. So what happened?
Although “sulfanilamide” sounds like a terrifying chemical to ingest, it’s actually a perfectly safe antibiotic when administered properly, and was used, among other things, at the time to good effect at treating streptococcal infections. (It was later massively beneficial in reducing infection and mortality rates in WWII.) However, in an attempt to create a liquid version of the drug (it normally came in either powder or tablet form), the lead chemist at S.E. Massengill Company, Harold Cole Watkins, mixed it with diethylene glycol, commonly used today in antifreeze and as a solvent.
At the time, it was known that diethylene glycol was highly poisonous to humans (most notably causing kidney failure), but this had only recently come to light, and Watkins did not know this when he decided to use it in the company’s elixir. He chose it owing to how well sulfanilamide dissolved in the substance and because diethylene glycol tastes slightly sweet.
In this case, even animal testing would not have been required to discover the substance was toxic. Watkins would have merely needed to do a surface level look into the compound, with several previous published studies noting diethylene glycol, even in relatively small doses, would cause kidney damage and potentially failure of said organ. But no such due-diligence research nor testing to determine the safety of such an elixir before putting it on the market was required at the time.
Blissfully unaware that they were about to start selling a tasty tonic of death to their customers, S.E. Massengill sent out 633 shipments of the elixir in the autumn of 1937 to pharmacists across the nation.
It didn’t take long for disturbing reports to begin coming in, including news of deaths trickling back to S.E. Massengill Co, resulting in them issuing telegrams requesting the elixir be sent back for a full refund, though not disclosing to pharmacists the seriousness of the issue if they ignored the telegram.
This all was capped by a short and truly heart wrenching letter by one Marie Nidiffer to President Franklin D. Roosevelt describing what happened in the days following administering the drug to her 6 year old daughter, who at the time was suffering from a sore throat:
The first time I ever had occasion to call in a doctor for [Joan] and she was given Elixir of Sulfanilamide. All that is left to us is the caring for her little grave. Even the memory of her is mixed with sorrow for we can see her little body tossing to and fro and hear that little voice screaming with pain and it seems as though it would drive me insane. … It is my plea that you will take steps to prevent such sales of drugs that will take little lives and leave such suffering behind and such a bleak outlook on the future as I have tonight.
As for Dr. Samual Evans Massengill, who owned S.E. Massengill Co., he responded to the many dozens of deaths caused by his company’s negligence by issuing the following statement:
My chemists and I deeply regret the fatal results, but there was no error in the manufacture of the product. We have been supplying a legitimate professional demand and no one could have foreseen the unlooked-for results. I do not feel that there was any responsibility on our part…
Needless to say, when all this came to light, the public were more than a little outraged, with S.E. Massengill’s somewhat brazen statement that his drug company wasn’t responsible for making sure their products weren’t simply poison at the recommended dose before selling them only fanning the flames.
To add to the tragedy, it appears Harold Watkins did not quite have the clear conscience of Dr. Massengill, with Watkins sadly committing suicide not long after it came to light that his error had resulted in the deaths of over 100 people.
In the end, the Elixir Sulfanilamide Incident was the final straw, spurring the 1938 Federal Food, Drug, and Cosmetic Act to hopefully prevent such a tragedy from occurring again. Among other things, the Act required that for the first time in US history, drug makers had to demonstrate to the FDA that drugs were reasonably safe before they could be marketed to the public, set standards for how different kinds of food should look and be packaged, and specified legal maximums for “certain poisonous substances” commonly added to food and drink at the time.
So what does any of this have to do with Kinder Surprise?
The Act also included a small section explicitly banning the sale of any confectionery that contains…
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