I actually used Kinder Surprise eggs as a case study in a paper on trade embargoes for a masters-level course in international business. To answer the legal question, the 1938 Food, Drug and Cosmetic Act is the law most cited to justify the embargo on Kinder Eggs. Because a toy is kept inside a candy confection, Kinder Eggs are embargoed from point of entry into the U.S.

As someone who has given Ferraro Kinder Eggs to my children while living in Europe, I can state that for a child over the age of three, these eggs are perfectly safe. The capsule holding the toy is too large for a small child to swallow, and is almost impossible for adults, let alone children, to open easily. Plus there are plenty of warnings on the foil packaging advising parents not to give the confection to children under the age of three.

While conducting research on this paper, I discovered that Mars, one of the largest global producers of candy, actively lobbies the U.S. government to have confections with interior toys banned anytime a similar product comes on the market. For instance, in 1997, when Nestle tried to introduce "Wonderballs" (aka Magic Balls) in the U.S., Mars was instrumental in promoting civil action to prevent the marketing of this product. It is my conjecture that Mars actively lobbies for the Kinder egg embargo, particularly from March to May, because Ferraro is seen as a major competitor over the Easter season.

And believe me, getting caught trying to "smuggle" Kinder eggs into the U.S. is not much fun. We had friends traveling into the U.S. from Canada who packed 10 Kinder eggs in their luggage for their children (all over the age of 5) for Easter. Customs and Border Protection (both part of the Department of Homeland Security) not only confiscated the Kinder eggs, but also fined the family $1,200 per egg, or $12,000 total. So, don't try this, unless you're willing to pay a hefty price.

I don't think this situation will change until there is a grassroots effort to change the law. Considering there are more pressing issues out there than the Kinder egg embargo, I don't see change happening any time in the near future.