A "Surprise" for Your Sweet Tooth: FDA Revisits Inedible Objects in Candy

Many of you may be familiar with the famous confection known as the Kinder Surprise or Kinder Egg, a toy-filled chocolate that is touted as the single largest children’s candy category in the world. The treat is manufactured by the Italian company Ferrero and has risen to nearly cult status in certain countries. Kinder Eggs are sold worldwide; however, U.S. consumers have likely only tried the confection while traveling abroad or through some other surreptitious means. The candy has been banned in the United States for decades.

This Spring, though, U.S. consumers might see something similar to the Kinder Egg in their Easter baskets. Kevin Gass, one of the founders of Candy Treasure LLC located in New Jersey, has developed a safe alternative to the Kinder Egg that meets the approval of both the U.S. Food and Drug Administration (FDA) and the Consumer Product Safety Commission (CPSC).

The FDA has long viewed the practice of intermingling confectionaries with trinkets with apprehension because of the potential choking hazard it presents. In fact, Section 402(d)(1) of the Federal Food, Drug, and Cosmetic Act expressly states that a confectionery is deemed to be adulterated “if it…has partially or completely imbedded therein any nonnutritive object,” unless the nonnutritive object has a functional value and would not be injurious to health.

It is clear that the agency’s thinking on this subject has not changed. Most recently, in April 2012, the FDA reissued its import alert against Kinder Eggs and other similar products containing imbedded, non-nutritive objects, being offered for sale in the U.S. In the alert, FDA explained that “[t]he imbedded non-nutritive objects in these confectionary products may pose a public health risk as the consumer may unknowingly choke on the object.” Individuals attempting to smuggle Kinder Eggs across the border are subject to refusal of admission and a could face a potential fine of $2500 per egg.

Despite these restrictions, Gass announced earlier this month that his company’s product has been approved for sale in the U.S. Candy Treasure makes a confection called the Choco Treasure, which, like the Kinder Egg, is a chocolate egg that contains kid-friendly toys, such as figurines, full decks of mini playing cards, 3D puzzles and spinning tops. So how did this New Jersey company circumvent the country’s longstanding ban on the sale of confectionery that has a partially or completely imbedded non-nutritive object?

Gass explains that the Choco Treasure candy egg has a specially designed yellow egg-shaped capsule that contains each toy. There is a plastic ridge around the capsule which physically separates the two halves of the chocolate egg. It also alerts children that there is something hidden inside the chocolate. The capsule has a button that must be pushed in order to break it apart. In addition, the inedible toys contained inside the capsule are larger than those typically found inside the European equivalent. You can see how the concept works at the company’s website here: http://www.chocotreasure.com/how-it-works/.

This modification to the traditional Ferrero Kinder Egg is considered acceptable and is permitted for sale in the U.S. Ferrero's similar confection remains illegal, on the hand. FDA explained in a Compliance Policy Guide that if the trinkets are physically separated from candy item by some form of wrapping, this would be a sufficient safety precaution.

So this weekend you can enjoy your confection with nonnutritive objects legally. Or, if you are so inclined, you can sign the petition currently pending to lift the ban on Kinder Eggs.

Canada Proposes Single Food Safety Inspection Model

In May 2012, the Canadian Food Inspection Agency (CFIA) published a report called The Improved Food Inspection Model: The Case for Change which outlined the agency's current approach to food inspection, the context for a new food inspection approach, and the proposed components of an improved food inspection model.

The report explains that when CFIA was first established in 1997, it brought together food inspection programs from different federal departments with diverse inspection approaches. As a result, CFIA currently administers eight, separate food inspection programs including:

  • dairy
  • egg
  • fish and seafood
  • fresh fruits and vegetables
  • imported and manufactured food
  • maple
  • meat
  • processed products (including honey)

Without a standardized food safety inspection model, CFIA has struggled to provide consistent oversight of all regulated food. According to the CFIA report:

Having eight food programs has resulted in the development and use of different risk management frameworks, inspection methods, and compliance verification and enforcement approaches. This challenges the CFIA to manage risks consistently across different types of establishments and different foods. It creates situations in which foods of similar risks may be inspected at different frequencies or in different ways. The eight food programs also result in industry having to meet multiple and different requirements that are challenging to address.

The challenge of maintaining eight different inspection programs coupled with changing methods of global food production, processing and distribution has necessitated the development of an improved and standardized food inspection model.

Earlier this month, CFIA drafted a proposal for a single food inspection model based on risk and prevention of non-compliance that would replace the eight food inspection programs the agency currently operates. The new model has five key components:

  1. Licensing/registration – A licensing and registration requirement for regulated parties that import or export food or that manufacture or process food for trade between provinces;
  2. CFIA oversight – Varying levels of CFIA oversight that would be based on the level of risk;
  3. Inspection – A systems approach to inspection that would assess the preventative control plans and procedures of regulated parties to ensure that food is prepared safely and complies with regulations;
  4. Compliance and enforcement – One common compliance and enforcement strategy for food; and
  5. System performance – Mechanisms to evaluate the CFIA’s inspection program for consistency, effectiveness and performance.

CFIA is hopeful that an updated food inspection system will benefit the food industry in a number of ways. For instance:

Inspection modernization will improve market access and give Canadian companies the flexibility to design controls that demonstrate their operations and products comply with all relevant federal standards. It will also create a more level playing field for businesses by streamlining the inspection process into a single system and eliminating the need for businesses to address multiple requirements.

In addition, the new model is also intended to increase transparency thus providing consumers with greater confidence in the safety and wholesomeness of their food.

The CFIA is seeking comments from the public including consumers and industry stakeholders until October 31, 2012 on the proposed draft model and intends to organize extensive outreach activities with CFIA inspectors, consumer associations, industry, and federal, provincial and territorial government counterparts in the fall. 

American Cheese Society Conference

I attended the American Cheese Society conference in Montreal earlier in the month. The conference was attended by cheese producers and suppliers from around the world. At the conference I presented a PowerPoint on Food Safety Modernization Act  (FSMA) .  There were several talks on Food Safety and clearly, the industry is concerned about the new provisions where cheese in particular has been identified as one of the high-risk foods that will be subject to some of the more stringent new regulations.

Because of the conferences’ location, FSMA’s features related to import and export certifications and foreign inspections were of particular interest (see below). It is clear that imported food will garner additional attention under FSMA. This is particularly true given accounts of food safety issues in China involving vinegar, meat and bread

 

FSMA IMPORT REQUIREMENTS

 

1.   The FDA has a stepped up their foreign facility inspection program to be carried out in a manner to be negotiated with the relevant foreign authority. If inspections are not allowed within 24 hours of the request, a ban on the importation from that facility is authorized.

 

2.  FSMA contains a new section (sec. 808) that requires the FDA to create a system for the accreditation of third party auditors for certification of eligible foreign facilities. The certification in turn will be used for the Foreign Voluntary Qualified Importer Program (see below) to provide assurance for food imports and to target foreign inspection resources. There are express requirements for auditors and certifications set out in this statute.

 

3.  The Foreign Supplier Verification Program (sec. 805) requires every United States importer to perform risk-based reviews of foreign suppliers to verify that the food they import is produced in compliance with the Food and Drug Administration (FDA) standards (produce and hazard analysis and preventive controls) and is not altered or misbranded. In January 2012, the FDA is required to issue regulations specifying the contents of the specific verification programs. Each importer is required to perform foreign supply verification activities which may include monitoring records, inspections or annual on site inspections. It may also require reviewing the hazard prevention programs for foreign suppliers, periodic sampling and testing of shipments. 

 

4.  The law has clarified the definition of inspection to include: An “importer,” for this program, is defined as the United States owner or consignee of the article of food at the time of entry of such articles into the United States, or, if there is no United States owner or consignee, the importer is defined as the United States agent or representative of a foreign owner or consignee of the article of food at the time of entry into the United States. (Note that FDA seafood and juice facilities subject to Hazard Analysis and Critical Control Points (HACCP) or low-acid canned food requirements are exempt.)

 

5.  In January 2012, the FDA is required to issue a guidance document to assist importers in developing their foreign verification program.

 

6.  Each importer is required to maintain records related to the Foreign Supplier Verification program for at least two years.

 

7.  The FDA is required to maintain on its website a current list of the names, locations and other information deemed necessary by the importers in compliance with Section 2805 exemptions. 

 

8.  There is also a Foreign Voluntary Qualified Importer Program (FVQIP) (sec. 806) which requires the FDA to establish in consultation with the Department of Homeland Security a “voluntary” program to expedite movement of materials through the process. Under this program, an “importer” is defined as the person that brings food, or causes the food to be brought from a foreign country into the United States.  This is an important distinction from the definition under FSVP because it could mean that foreign manufacturers may be allowed to participate in this program.  The deciding factors will not be known until the final regulations are issued. FVQIP regulations are not required to be finalized by the U.S. FDA until July 2013. In July 2012, the FDA is required to issue a guidance document regarding participation, revocation, reinstatement compliance of the qualified importer program. To be eligible the importer must be importing food from its facility that has been certified by a third party auditor that year.

 

9.  The FDA is authorized to require as a condition to granting admission to an article of food imported or offered for export to certification or such other assurances FDA deems appropriate.

 

In short, the following is the relevant time table:

January 2011 Authority to require import certification.
July 2011 Require importers to notify the FDAof any country tot which food was denied access.
January 2012 FDA to publish guidance AND regulations for the Foreign Supplier Verification Program.
July 2012 Establish program for Voluntary Qualified Importer Program.
January 2013 Effective date for Foreign Supplier Verification Program.

 

 

 

Oil and Water Meet Caffeine and Alcohol: FDA to Look into Safety of Caffeinated Alcoholic Beverages

By Guest Bloggers Tyler Anderson and Stephanie Meier

On November 13, the FDA notified nearly 30 manufacturers of caffeinated alcoholic beverages that the agency intends to look into the safety and legality of their products. As the FDA explained in a news release announcing this action, under the Federal Food, Drug, and Cosmetic Act any substance intentionally added to food, in this case caffeine in alcoholic beverages, is deemed unsafe and is unlawful unless its specific use has been approved by an FDA regulation, the substance is subject to a prior sanction, or the substance is Generally Recognized as Safe (GRAS). To date, the FDA has only listed caffeine as GRAS as an ingredient for use in cola-type beverages in concentrations specified by the agency.

The FDA noted in its release that it is not aware of any basis on which manufacturers may have concluded that the use of caffeine in alcoholic beverages is GRAS sanctioned. Consequently, in its letters to notified companies, including City Brewing, Gaamm Imports, Inc., and United Brands Company, Inc., the agency asked that within 30 days the notified companies “produce evidence of their rationale, with supporting data and information” for their conclusion that the use of caffeine in their products is GRAS or prior sanctioned. If the FDA determines that the use of caffeine in the alcoholic beverages is not GRAS or prior sanctioned, the agency stated it would take “appropriate action to ensure that the products are removed from the marketplace.”

This issue has been fermenting (pun intended) for some time. In the past year, alcoholic beverage industry leaders Anheuser-Busch and MillerCoors agreed to discontinue their popular caffeinated alcoholic beverages Tilt, Bud Extra, and Sparks, and further agreed not to produce any caffeinated alcoholic beverages in the future. In late September 2009, the FDA received letters from eighteen attorneys general and one city attorney and five scientists expressing concerns about caffeinated alcoholic beverages. Among the chief policy concerns cited by these stakeholders was the increasing popularity and consumption of caffeinated alcoholic beverages by college students, coupled with general health risks associated with excess consumption of both alcohol and caffeine.

Manufacturers of alcoholic beverages had been operating under the TTB guideline that caffeine was a permitted but restricted ingredient, and had been warned by TTB and FTC about prohibited and/or deceptive advertising practices related to the effects of combining caffeine and alcohol. If the FDA takes the strong position that caffeine is an illegal additive, these advertising concerns related to caffeine and alcohol will disappear. The TTB and FTC will likely continue to focus scrutiny on other less common alcoholic beverage additives that have been treated like caffeine, such as ginseng, guarana and taurine.

And consumers will turn back to the original Red Bull and vodka for their caffeinated alcoholic beverage.