US Supreme Court weighs child-slavery case against Nestlé USA, Cargill

December 1: An effort to hold U.S. chocolate companies responsible for child labor on farms supplying their cocoa goes before the Supreme Court on Tuesday, as justices consider a lawsuit against Nestlé USA and Cargill brought by six Africans who say that as children they were trafficked out of Mali, forced to work long hours on Ivory Coast cocoa farms and kept at night in locked shacks, The Washington Post reported.

Child labor is widespread on the cocoa farms of West Africa, where about two-thirds of the world’s cocoa is grown, and attorneys for the Malians argue Nestlé and other chocolate companies should better monitor child labor on the farms that produce their cocoa.

These companies “have long supported and maintained a system of child slavery and forced labor in the Ivory Coast,” according to the filings for the six Africans by Paul L. Hoffman and other attorneys. “This is extremely profitable. … They could end the system; instead they chose profits over ending their exploitation of children.”

The Malians are seeking damages from Nestle USA and Cargill, as well as a halt to the corporate practices they say abet child labor. The Supreme Court is deciding whether their case against the companies can continue in the lower courts.

Nestlé USA and Cargill respond in legal filings that they, too, deplore child slavery and trafficking, and that they have taken steps to eradicate such practices among their suppliers.

Nestlé USA “firmly believes that traffickers deserve punishment,” the company said in court filings. “This case is not about any of that.”

The proliferation of global supply chains in recent decades has led to recurring debates over the responsibility of multinational companies to monitor the adherence of their far-flung suppliers to human rights and environmental standards.

Business groups including the U.S. Chamber of Commerce and the National Association of Manufacturers have pushed back against lawsuits like the one against Nestlé and Cargill arguing they are burdensome and could discourage investment in developing economies. U.S. and foreign companies have been sued 150 times over the past 25 years under a statute that permits foreign nationals to sue in the United States for international law violations, the business groups said.

Allowing the cases imposes “heavy legal and reputational burdens on companies that are sued on the basis that they conducted business with foreign actors accused of committing torts abroad,” their attorneys argued.

Moreover, in the view of the companies, such cases ought to be filed, not against the companies, but against the traffickers and farmers involved.

“This case is about a 15-year old lawsuit brought against the wrong defendant, in the wrong place, and under the wrong statute,” according to the brief on behalf of Nestlé USA filed by Neal Katyal and other attorneys. “The true wrongdoers are the Malian and Ivorian traffickers, farmers, and overseers.”

There is plenty of evidence, however, that the world’s chocolate supply depends heavily on child labor and that despite two decades of industry promises, it remains widespread. While much of it occurs on family farms, some is also arranged by traffickers who ferry in children from neighboring Mali and Burkina Faso.

A Washington Post investigation of the use of child labor in the cocoa industry found representatives of some of the biggest and best-known brands could not guarantee that any of their chocolate was produced without child labor. It featured children from Burkina Faso working in appalling conditions on Ivory Coast cocoa farms.

According to a recent report sponsored by the U.S. Department of Labor, the world’s chocolate companies depend on cocoa produced with the aid of 1.6 million West African child laborers.

Most of those laborers were involved in tasks considered hazardous, such as wielding machetes, carrying heavy loads or working with pesticides, according to the report.

While connecting any child laborer with a specific company is difficult to do, human rights advocates blame the industry in general for refusing to pay enough for cocoa and for failing to institute systems for tracing cocoa beans to specific farms.

“The business practices of these companies clearly have contributed to the use of forced and child labor in West Africa,” said Charity Ryerson, an attorney for the Corporate Accountability Lab who has traveled to Africa to investigate cocoa practices.

She noted that some smaller chocolate companies, such as Tony’s Chocolonely, pay higher prices and take extra care to eliminate child labor from their cocoa suppliers. Those added costs can make it difficult for them to compete against the companies using cocoa produced with child labor, some of the companies said.

“As slave-free cocoa and chocolate companies, [we] are at a competitive disadvantage to companies that source cheap cocoa produced with forced child labor,” the companies said in a legal filing. “The higher production costs associated with compliance with international human rights norms require [us] to sell … chocolate at higher prices.”

Cocoa prices are critical to the debate. As the Supreme Court begins to weigh the case, a war over the right price for cocoa appears to be breaking out in West Africa between the multinational companies and the governments of Ivory Coast and Ghana, which regulate cocoa exports.

The West African governments have added a $400 cost per ton in an attempt to give farmers what they call a “living income,” a move that has been met with some reluctance from the chocolate companies.

“Unfortunately, industry steps to lower the price are going in precisely the wrong direction,” said Antonie Fountain, managing director of the Voice Network, a group that pushes for environmental and human rights reform in the cocoa industry. “Prices need to go up, not down.”

The Voice Network issued an annual report on the industry on Tuesday, citing the lack of progress despite promises by the companies to eradicate child labor.

“Twenty years into rhetoric, the challenges on the ground remain as large as ever,” it said. “Poverty is still the daily reality for virtually all West African cocoa farmer families, child labour remains rife, and old growth forests continue to be cleared to make way for cocoa production.”

https://www.washingtonpost.com/business/2020/12/01/cocoa-supreme-court-child-labor/