When Cracker Jack had to Throw out the Toy …

Cracker Jack is a beloved staple of baseball games with their combination of caramel covered popcorn and peanuts, and a toy! The simple toy is perhaps the defining characteristic and still is to this day. Yet, this toy once caused FDA to condemn Cracker Jack.


Starting 1912 Cracker Jack consisted of three items: caramel covered popcorn and peanuts, and a toy. Currently the toy is placed in a plastic wrapper and then included in the popcorn and peanut mixture. This was not always the case and in the 1940s the toy (metal or plastic) was placed directly into contact with the food.

Directly combining food and an unwrapped toy caused FDA “apprehension.” This then lead FDA to sue 37,456 boxes Cracker Jacks alleging that they were adulterated. Rather than fighting FDA in court, Cracker Jack consented to the allegation and then reconditioned the food by removing the toy. The “fixed” food was given to “charitable institutions” for “distribution to the inmates.”

Law and Why We Still Have Cracker Jack, but no Kinder Eggs:

FDA made two allegations against Cracker Jack; the food contain a (1) poisonous or deleterious substance (the toy) that may render the food injurious to health (choking, for example) and (2) a  nonnutritive object (the toy) partially or completely imbedded in the food.

Crackers Jack was not FDA’s only effort against foods that included a toy. However, FDA subsequently abandoned this approach in the 1950s after an unfavorable judicial ruling.

In Cavalier Vending Corp., a circuit court concluded a toy commingled in candy is not a “poisonous or deleterious substance” because it is not contained within the food. The circuit court took the position that “food” is not the collection of candy, but only the individual piece of candy. Further using the narrow interpretation of “food,” a commingled toy cannot be said to be embedded in the food when it merely resides next to the food.

Despite this limited interpretation, this law is why you cannot buy true Kinder Eggs in the United States . A true Kinder Egg consists of a toy in a plastic egg that is completely surrounded by a chocolate coating (thus the toy is embedded in the food). However do not worry, a similar product can be lawfully bought because egg is not completely surround chocolate.

Later note: Kinder Eggs launched a U.S. friendly version this year.


Image: Skooldays, 60s Cracker Jack Candy Commercial, available at http://www.skooldays.com/blog/60s-cracker-jack-candy-commercial/.

Story: FDA, Foods Court Case Notices of Judgment, Case No. 13575, available at https://ceb.nlm.nih.gov/fdanj/bitstream/123456789/99579/3/FFNJ13575.pdf.

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