A class-action civil suit brought against the big chocolate companies sheds stark light on the entire candy bar industry. It outlines the relationships between the candy makers and the cocoa farms in West Africa, which provide 70% of the world's cocoa supply. Half is grown in Ghana and Ivory Coast. Most American chocolate is made from Ivory Coast cocoa beans.
In cocoa-growing regions of Ghana and the Ivory Coast more than 43% of all children between the ages of 5 and 17 living in agricultural households are engaged in hazardous work.
The plaintiffs are eight former enslaved children who, the court papers charge, were trafficked from their home country Mali, and sold to cocoa farms in the neighboring West African country.
"This lawsuit against the cocoa and chocolate industry is about much more than the eight Malian citizens who were trafficked and exploited as child slaves to harvest cocoa," says Fernando Morales-de la Cruz, founder of Cacao for Change and Cartoons for Change. Both organizations in Strasbourg, France, seek to raise awareness of child labor in both the cocoa and coffee trades.
Low Price Business Model
"The business model of the chocolate industry is cruel, exploitative, and illegal because it exploits between 2.2 and 3 million children worldwide, besides exploiting millions of farmers and farmworkers, all to buy cocoa for less than one-third of the real price," Morales-de la Cruz said.
He noted that a number of chocolate companies run their revenues through Switzerland to avoid taxes in countries, like the United States, where they earn their profits selling chocolate confections. "With their Swissploitation business model the cartel of cocoa companies 'saves' more than $20 billion per year buying cheap cocoa," he said.
This is the International Year for the Elimination of Child Labor as declared by the United Nation's International Labor Organization. The time is ripe to press for an end to profiting off exploitive and forced child labor.
Make no mistake, chocolate is big business. The global chocolate market is a $136 billion business. It's expected to grow to $182 billion by 2025.
The plaintiffs filed the lawsuit in U.S. District Court in Columbia just days ago, selecting the U.S. legal system for several reasons. In 2000, Congress and President Bill Clinton enacted a landmark law against human trafficking known as the Trafficking Victims Protection Act, or TVPA. It has been reauthorized five times, most recently in 2019 with Congress earmarking $250 million toward the effort. That law gives us extraterritorial jurisdiction.
Our Government Knows
Since the 1990s, the U.S. State Department and the Department of Labor have recognized the existence of child slavery in the cocoa industry in the Ivory Coast. In 2004, State estimated there were at least 15,000 child laborers working on cocoa, coffee and cotton farms there. As the photo above shows these children wield machetes to do their dangerous harvesting.
A study conducted by Tulane University in 2015 found that the number of children engaged in the 'Worst Forms of Child Labor' on cocoa plantations grew substantially between 2009 and 2014.
In October 2020, a new report by the National Opinion Research Center (NORC) at the University of Chicago, which was funded by Labor, was released showing child labor had increased again in the cocoa production sector since the Tulane study.
In the 2018 to 2019 harvest season, the prevalence of children involved in hazardous child labor in the cocoa sector in the Ivory Coast and Ghana rose to almost 1.5 million children. That's also 1,000 times the official U.S. estimate in 2004. The Ivory Coast has fewer than 26 million people.
Hazardous Work
The study also found that in cocoa-growing regions of Ghana and the Ivory Coast more than 43% of all children between the ages of 5 and 17 living in agricultural households are engaged in hazardous work – not just child labor, but hazardous child labor.
Comparing a 10-year span concluding with the 2018-2019 harvest season, the NORC report found a 14% increase in child labor and a 62% increase in production over the same period.
"There is a large group of extremely poor, vulnerable boys in Mali and Burkina Faso who are on the verge of starving and will do about anything for the promise of a paying job," said Terry Collingsworth, who was arrested by the Ivory Coast police as he interviewed enslaved boys at a cocoa plantation. Collingsworth is executive director of International Rights Advocates.
Mali and Burkina Faso both border the Ivory Coast. Cacao refers to the beans harvested to make chocolate. Cocoa refers to the product after the beans are roasted.
Sweet Talk
So, what's the U.S. government doing besides bankrolling studies?
In 2001, the House passed a bill that would require U.S. importers and manufacturers to certify and label their products "slave-free." Have you seen those startling words on your recent candy wrappers? No? That's because of what's known as the Cocoa Cartel, the defendants in the lawsuit, rallied against it.
Instead, they were able to get themselves a sweet deal, the Harkin-Engel Protocol, a voluntary private inspection and enforcement system that all but guaranteed the continuance of enslaved child labor.
In fact, as part of the initial Harkin-Engel Protocol, the candy companies gave themselves an arbitrary deadline till 2005 to end their reliance on child labor for cocoa harvesting. That deadline got extended again and again.
Now the industry has a goal to stop profiting from enslaved child labor by 2025, though an industry spokesperson admitted in 2018 that the industry would fail to meet that deadline.
As the class-action suit alleges, the defendants' "voluntary initiative is a sham, and they are getting away with and profiting from an international human rights crime while claiming they are making progress."
Given the fact that enslaved children are still picking the beans, it's fair to call it the Cocoa Cartel strategy "see no enslaved children." Clearly, this willful blindless strategy worked.
The U.S. government has several agencies monitoring human trafficking, in addition to the State Department and Department of Labor, including the U.S. Department of Homeland Security (DHS) and the U.S. Department of Health and Human Services (HHS).
A Loophole Hurts Kids
There are several federal laws going back to the Tariff Act of 1930 designed to reduce the profit motive for labor trafficking by barring the import of goods made with trafficked labor.
But these laws had a loophole. All importers had to do was show that domestic production could not meet demand and the use of enslaved children was irrelevant. Since the United States is not a cocoa bean country, that was as easy as breaking off a piece of a KitKat bar.
That loophole was supposedly closed in 2015, although almost no one noticed. The Trade Facilitation and Trade Enforcement Act of 2015 was intended to close a loophole in an earlier law that made it possible for goods produced using forced labor to still enter the United States.
The new law enhanced the Customs and Border Patrol's ability to block such products altogether.
Clearly, the chocolate titans found a workaround. The lawsuit brought on behalf of the enslaved children asserts that the "defendants have engaged in various deceptive practices to avoid taking responsibility for their long-term profiting from various forms of child slavery."
After the Tulane report came out, the defendants "renewed their false assurances to consumers and regulators that they would initiate programs to reduce child labor in their supply chains," according to the suit. As the NORC study showed, child labor increased.
The suit states, "Defendants control production and could, if they wanted to, stop profiting from child labor. Instead, they chose to delay taking action by creating ineffective programs that provide public relations cover for their obviously failed efforts."
Helping 1 in 1,000
One such example is Nestlé's remediation assistance for some 15,000 children. By remediation, they mean handing out school kits, birth certificates, tutoring and other provisions – not assistance ending their enslaved labor conditions.
Other chocolate heavyweights named as defendants are Cargill Inc., Barry Callebaut USA LLC, Mars Wrigley Confectionery, Olam Americas Inc. and Mondelēz International Inc. (Nestle's American candy division has been sold to the Ferraro Group.) In addition, the suit lists 10 unidentified 'Corporate Does' as defendants.
These candy companies have higher profits because using child laborers keeps the cost of cocoa down. If the farms paid adult workers using proper protective equipment to maintain the crops and harvest the beans, prices would rise. Chocolate makers would see profits fall unless they could raise their prices. Upping consumer prices, whether by subtly shrinking candy bars or slapping on a higher price, runs the risk that people will eat fewer chocolate treats, causing sales volume to fall, lowering the profit margins of the Cocoa Cartel companies.
Dangerous Jobs for Kids
We've already noted that the work done by children on cocoa plantations is classified as hazardous and the "worst forms of child labor," according to the Tulane and NORC studies.
So, what are these enslaved children doing exactly? Children who work on cocoa plantations burn and clear fields, fell trees to expand cocoa plantations, spray hazardous pesticides without any personal protection, wield machetes to break cocoa pods and transport heavy loads of cocoa pods and water.
Add to that claims of negligent supervision, intentional infliction of emotional distress and physical abuse. Enslaved child laborers are not usually paid. They are forced to work long hours. That's true even when sick. The lawsuit says they are underfed and locked in their housing at night to prevent them from running away.
Industry Standard
Though the defendants, the Hershey's, MARS' and Nestlés, do not own cocoa farms – a fact they like to hide behind – they maintain and protect a steady supply of cocoa by forming exclusive buyer-seller relationships with Ivorian farms, according to the lawsuit. This is similar to the practice with chicken farms in the United States where companies like Perdue and Tyson Foods require chicken ranchers to rear the birds in cages of specific sizes, to feed them exact amounts of food bought from the big meat companies or at their direction and many more details that effectively make the farmers not independent businesspeople, but 21st century American serfs.
The Cocoa Cartel manages its relationships with the cocoa farms through memorandums of understanding and written and oral agreements and contracts, according to the suit. These companies dictate the terms by which such farms produce and supply cocoa to them, including "specifying labor conditions under which the beans are produced."
The candy companies control so much of the world chocolate business that they can easily wield economic leverage over the West African farmers, effectively controlling the production of Ivorian cocoa while insisting they have not seen any enslaved children.
Willful Blindness
To cultivate and keep their exclusive relationships with the farms, candy makers offer both financial assistance and technical farming assistance designed to support cocoa agriculture. Financial assistance includes advanced payment for cocoa and spending money for the farmers' personal use, according to the lawsuit. Tech support includes equipment and training in various growing techniquesnand even appropriate labor practices. Just what do these conglomerates consider appropriate?
The defendants or agents working for them visit the cocoa plantations regularly throughout the year and therefore must see firsthand the enslaved children working the crops. They know the deal. Instead of using their position to effect change for the sake of the enslaved children, they choose profit via willful blindness and zero accountability.
"The chocolate industry owned by multibillionaires and large corporations exploits millions of children and women, paying them less than the price of a candy bar," Morales-de la Cruz says. "They also deceive consumers claiming that they are fair and ethical.
"This has to stop!"
Meanwhile, Nestlé USA Inc. and Cargill Inc., which is also named in the class-action suit, are facing a consolidated legal battle before the U.S. Supreme Court with an anonymous defendant for their responsibility in the human rights violations in the cocoa industry. A third defendant, Archer Daniels Midland, reportedly was dropped from the suit after settling with the plaintiffs.
The court heard oral arguments in January in that consolidated case, Nestlé USA, Inc. v. Doe 1 and Cargill, Inc. v. Doe 1.
That case goes back to an initial filing in 2005. It was dismissed in 2010 by Judge Stephen V. Wilson of the U.S. District Court for the Central District of California. He held that "corporations could not be sued under the current understanding of the Alien Tort Statute (ATS)." In 2013, that decision was reversed by the U.S. Court of Appeals for the Ninth Circuit. The candy companies filed petitions for review by the Supreme Court after being denied an en banc hearing, a review by a panel of judges or all the judges of a court.
Corporate Accountability
At the heart of that lawsuit is whether domestic corporations can be held accountable and liable for aiding and abetting human rights crimes committed abroad. The case could redefine the limits of corporate liability under the ATS, according to the blog Just Security.
The Trump administration tried to intervene in the case. Strangely, the acting solicitor general filed briefs on an issue none of the parties raised: whether aiding and abetting liability claims are ever permissible under the Alien Tort Statute.
"Child labor is unacceptable and goes against everything we stand for. Nestlé has explicit policies against it and is unwavering in our dedication to ending it. We remain committed to combatting child labor within the cocoa supply chain and addressing its root causes as part of the Nestlé Cocoa Plan and through collaborative efforts," a Nestlé spokesperson said. "This lawsuit does not advance the shared goal of ending child labor in the cocoa industry. Child labor is a complex, global problem. Tackling this issue is a shared responsibility. All stakeholders – including governments, NGOs, the communities and the broader cocoa industry – need to continue to address its root causes to have an impact."
Some candy companies have made public efforts to at least make seem like they are trying to make changes – putting band-aids on a cancerous practice. MARS launched an endeavor in 2018 to "reshape the cocoa industry," noting the child labor and forced labor practices of the cocoa farms, for example. That effort is backed by what the company says is $1 billion.
Since the cocoa industry's use of child labor has been on the world's radar for years, it clearly will require a large-scale public reckoning and massive revenue loss to see any real change.
We would love to tell you much more about this story from the perspective of the candy companies and the federal agencies that are supposed to seize as contraband imported products made with child labor and slave labor. The problem? Calls to Hershey's, MARS and the Customs Border Patrol were not returned. Only Nestlé responded, as noted above.
