But in this upside down world we live in, anything can be classed as anything :(
The Federal Food, Drug, and Cosmetic Act prohibits confectionery products which contain a “non-nutritive object”, unless the non-nutritive object has functional value. Essentially, the Act bans "the sale of any candy that has embedded in it a toy or trinket".
In 1997, the staff of the Consumer Product Safety Commission (CPSC) examined and issued a recall for some Kinder Surprise illegally brought into the US with foreign labels. The staff determined that the toys within the eggs had small parts. The staff presumed that Kinder Surprise, being a chocolate product, was intended for children of all ages, including those under three years of age. On this basis, the staff took the position that Kinder Surprise was in violation of the small parts regulation and should be banned from importation into the US.
Kinder Surprise eggs are legal in Canada and Mexico, but are illegal to import into the US. In January 2011, the US Customs and Border Protection (CBP) threatened a Manitoba resident with a 300 Canadian dollar fine for carrying one egg across the US border into Minnesota. In June 2012, CBP held two Seattle men for two and a half hours after discovering six Kinder Surprise eggs in their car upon returning to the US from a trip to Vancouver. According to one of the men detained, a border guard quoted the potential fine as "$2,500 per egg."
In 2012, the Food and Drug Administration (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 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".
As of 2017 Kinder Joy eggs, a variant lacking the encased toy, are sold in the United States, although Kinder Surprise eggs remain banned.