Blind boxes and collectibles have become increasingly popular, driven by the excitement of not knowing which character or design will be revealed until the package is opened. While most visible in the art toy market, the same concept is also used in the food industry.

Confectionery, snacks, and other food products are sometimes sold with toys, character figures, cards, or other collectibles. A package might, for example, contain one of ten possible characters, with consumers knowing that an item is included but not which one they will receive. Some collections may also feature rare or “secret” items.

For food businesses, however, adding a randomized toy or collectible involves more than a marketing decision. The food, the nonfood item, and the randomized mechanism may each raise different regulatory considerations in Thailand.

Thai FDA Requirements for Nonfood Objects Packaged with Food

The main food regulatory consideration is Ministry of Public Health Notification No. 310 B.E. 2551 (2008), which regulates food packaged together with things or objects that are not food. Under Notification No. 310, certain nonfood objects may be packaged together with food where they fall within specified exceptions, including objects that serve the following purposes:

• Maintaining the quality or standard of the food, such as a desiccant or oxygen absorber;
• Serving as a seasoning or as part of food preparation, such as chili powder sachets or seasoning sachets contained in instant noodle packages; or
• Functioning as an eating or food-preparation utensil, such as a spoon or fork included with instant noodles.

Other nonfood objects that do not fall within these categories generally should not be placed inside the food container together with the food. Where a toy, collectible, or other nonfood object is intended to be sold together with a food product, businesses should therefore carefully consider the nature of the object, how it is packaged and separated from the food, and the applicable Thai FDA requirements on a case-by-case basis.

In practice, the packaging arrangement should be assessed to ensure that the nonfood object does not create a health risk or cause consumers to mistakenly believe that it is edible. Depending on the specific packaging arrangement, this may involve placing the nonfood item outside the immediate food container, separately packaging it within the overall package, clearly separating the respective compartments, or attaching the promotional item externally to the food package.

When the Randomized Item Is a Toy

Where the nonfood item is a toy, a separate regulatory regime may also apply. Toys intended for children under 14 years of age may be subject to Thailand’s mandatory product safety requirements administered by the Thai Industrial Standards Institute (TISI), including TIS 685 on toys, depending on the characteristics and classification of the product. These requirements apply separately from the Thai FDA requirements applicable to the food and its packaging.

This is particularly relevant for imported products. A food product may need to satisfy Thai FDA requirements, while a toy included with it may separately require compliance with applicable TISI requirements.

In practice, businesses should therefore assess both the packaging arrangement under Thai FDA requirements and the toy itself under the applicable product safety requirements.

Randomized Toys, Different Values, and Other Legal Considerations

In situations where the toys are randomized, the fact that consumers do not know which toy they will receive does not, by itself, change the food regulatory analysis under Notification No. 310. Nor does the presence of randomness necessarily mean that the arrangement constitutes gambling.

However, separate legal considerations may arise depending on how the randomized mechanism is structured and marketed. One relevant factor may be the relative commercial value of the possible items. If the possible items have materially different values, the arrangement may raise different considerations than situations where the items are of broadly comparable value and the random element is primarily which character or design the consumer receives. For example, if most packages contain ordinary figures while a small number contain rare or “secret” items of substantially higher value, the difference in value may become relevant to the gambling-law analysis. Even where every consumer is guaranteed to receive an item, the element of chance may determine whether the item received is worth less than, equal to, or more than the amount paid. This may raise considerations relating to the risk of gaining or losing value under Thailand’s Gambling Act B.E. 2478 (1935), as the nature and value of the possible items, whether any additional prize or premium is offered by chance, and the overall structure of the promotion may also be relevant.

A related issue may arise where additional prizes or premiums are randomly included with the purchased product. Depending on the structure, this may fall within the provisions of the Gambling Act concerning the offering of premiums or prizes by chance, for which prior permission may be required.

The treatment of claw machines provides a useful comparison. Under the Gambling Act, as amended, certain amusement machines capable of producing a win-or-lose outcome may fall within the gambling regulatory framework. In a conventional claw-machine arrangement, a player pays for each attempt but may receive nothing if unsuccessful. The outcome therefore determines whether the player receives an item at all.

When assessing the regulatory implications of randomized items, the analysis should consider the overall structure of the transaction, including whether the consumer is guaranteed to receive an item, the relative value of the possible items, the role of chance in determining the outcome, and how the promotion is structured and marketed. Whether a particular arrangement raises issues under the Gambling Act will ultimately depend on its specific circumstances and should be assessed separately on a case-by-case basis.

One Product, Multiple Regulatory Considerations

A food product containing a randomized toy may appear to consumers as a single product, but businesses may need to consider several regulatory layers: Thai FDA requirements for the food and the packaging of a nonfood object with it, TISI safety and compliance requirements applicable to the toy, and other applicable laws that may be relevant to the structure of any randomized or chance-based promotional mechanism.

Each regime addresses a different regulatory issue. Compliance with Thai FDA requirements, for example, has no bearing on whether the toy complies with TISI requirements or whether the promotional mechanism raises issues under other laws.

Key Takeaways for Food Businesses

As food brands increasingly use collectibles, character collaborations, and blind-box-style concepts, these regulatory considerations should be addressed early in product development.

For food products containing randomized toys, businesses should consider what the nonfood item is, how it is packaged with and separated from the food, whether separate product standards apply to the toy, and how any randomized mechanism is structured and promoted.

Where the possible collectibles have materially different relative commercial values, additional legal review may also be appropriate, particularly where the promotion emphasizes the chance of obtaining a rare or high-value item.

Ultimately, what appears to consumers as a simple “surprise inside” may involve several regulatory layers. Identifying these considerations early in product development can help food businesses address potential regulatory issues before the product reaches the Thai market.