Terry Collingsworth on the Case Against the Chocolate Companies

Most of the chocolate sold in the United States is produced with forced child labor.

Terry Collingsworth

That’s the take of Terry Collingsworth of International Rights Advocates.

Collingsworth wants the big chocolate companies – Nestle, Cargill, Mars, Mondelēz, Hershey, Barry Callebaut, and Olam – to stop the practice.

And he’s suing them under the Alien Tort Claims Act.

“Cote d’Ivoire and Ghana together produce about eighty percent of the world’s cocoa,” Collingsworth told Corporate Crime Reporter in an interview last month. “But Cote d’Ivoire probably has about 65 percent. It’s a huge producer of chocolate. The companies have direct relationships with small farmers. Each farmer has eight or ten acres where they grow cocoa. The companies pay so little that the farmers are forced to find the cheapest labor possible. They put kids that are often trafficked from Mali and Burkina Faso to work.”

What do you mean by trafficked?

“There are men in their 20s called locateurs. They travel to Mali and Burkina Faso and they go to public places like bus stations where there are a lot of young boys who are looking for odd jobs. And they tell them they have a great job for them harvesting cocoa in Cote d’Ivoire. And they promise them a payment of $100 when the harvest is over.” 

“And $100 is a fortune in that area – two years wages in that area. And the kids almost always hop into the truck and go with this guy. And then when they get to the plantation they are told the truth – here you are in a different country in the middle of nowhere with a different language. You have no money at all. Your choices are work or starve.”

“In the early days, they actually penned up the kids and guarded them. They were true slaves. The kids in my first case in 2005 were physically punished. They were whipped. One had the bottoms of his feet cut because he tried to escape.” 

“Now, they don’t need to do all of that. The kids are going to work for a certain number of years before they turn 16 and say – you know what, I’m going to try and figure out a way to get out of here. They are literally trafficked and put to work as forced child laborers.”

What do they get for compensation?

“They don’t ever get paid. They get food – very bad food. They are given a sack of rice and maybe some kind of root foods. And then they are told to scavenge the land. There is some fruit – maybe bananas. But they don’t get paid and their conditions are horrible. All of these children are performing what the International Labor Organization defined in Convention 182 as the worst forms of child labor. It’s hazardous work. They are using sharp machetes and other tools to bring the cocoa down and to open the bean pod. They are applying pesticides and herbicides with no protective equipment whatsoever. These are not like help your family after school kinds of jobs.” 

“This type of hazardous labor is not permitted by ILO Convention 182, but it is illegal under every country in the world’s laws. This is still going on.” 

“Twenty years ago, we presented evidence to Congress and the media that this forced labor, child slavery situaton was going on in Cote d’Ivoire and huge companies like Nestle and Cargill were profting from it. And they knew they were participating in this.” 

“Congressman Eliot Engel who just lost his primary, he got a law passed by a huge bipartisan majority in the House that made it illegal to import this cocoa made with child labor. The bill then went over to the Senate side. The companies had a bit more time to get their lobbyists going. And the Senate transformed this mandatory prohibition into a voluntary protocol that is now referred to as the Harkin/Engel Protocol. Senator Tom Harkin took it over and converted the law into a voluntary initiative.” 

“The companies promised that by 2005 that they would stop using child labor. They were going to phase it out and figure out a way to change the system. Instead of doing that, they have given themselves three five year extensions of time. There was no consultation. They just said – well, we didn’t do it yet.”

“Their latest is that by 2025 they will have phased out by 70 percent, their use of child labor. If you think about it, that is evil genius. It’s an admission that they are doing it and that they are going to continue doing it.”

“There are some of the largest companies in the world that are saying they either can’t or won’t end their dependence on a system of production that relies upon child slavery.”

“When they gave themselves that first extension back in 2004, we sued them. That did bring a lot more attention and pressure on the companies. But I have returned almost every year during the harvest season to Cote d’Ivoire. Last year we couldn’t travel because of Covid.” 

“And not only are things the same, they are getting worse. The Department of Labor issued a report that they funded, out of the University of Chicago in October 2020. And it showed that the situation had gotten worse. The numbers grew. Now there are 1.58 million children involved in cocoa production in Cote d’Ivoire and Ghana. And ninety-five percent of those are performing the worst kind of child labor.” 

When you sued them back in 2005, what was the basis of the litigation and what was the result?

“We used the Alien Tort Statute which prohibits violations of the laws of nations. And that includes forced labor and child slavery. We sued them from profiting from child slavery. The case has a trajectory that is unusually slow. There are some explanations for it. It has been to the Court of Appeals in the Ninth Circuit twice where we won both times. And then on the last victory, Cargill and Nestle asked the U.S. Supreme Court to review the case. And they accepted cert. They agreed to review it. And we had arguments on December 1, 2020.”

“We will get a decision by the end of June. The argument was extremely interesting. Nestle and Cargill both hired Neal Katyal. Katyal was Obama’s Solicitor General. He is regarded as a liberal progressive lawyer. I guess he got paid a high enough price so that he agreed to argue the case.”

“This was a phone argument. And their argument was that corporations are immune under international law for liability for child slavery. Only individual humans can face liability under international law.”

What was that argument based on?

“We think it’s just made up. We don’t see any legal precedent.”

What did Katyal say it is based on?

“He said that all examples of international liability for human rights violations have been pursued against individual people. Even that is not true. Some corporations were part of the Nuremberg Tribunals. Even if it is true, that doesn’t mean that you can’t sue a corporation. It means that for whatever choices were made by prosecutors and lawyers, they tended to focus on the individual humans. But that doesn’t mean that the law prohibits corporations from facing liability.” 

“When Katyal made that argument, the interesting reaction was that even Justices Alito and Thomas found it to be outrageous. They both asked some real tough hypotheticals. And he got questions from Breyer, Sotomayor and Kagan. But essentially the justices seemed to agree that if twelve individual people were enslaving children to harvest cocoa, they could be prosecuted. But if they got clever and formed a corporation, they would be immune. That was the tone of the argument.” 

“You are telling me that if they formed a corporation they would then be immunized from slavery? We think we are going to win.”

If you lose, is that the end of the case?

“No. What we will do is amend the original complaint and sue responsible officers. Private lawyers might not be delighted with doing that. That would mean that you are not going to get a judgment from a giant corporation. You are just going to get a judgment from a couple of rich guys. But we would definitely pursue it because we want someone to be held accountable for the undeniable undisputed use of child slavery by these companies.”

What are chocolate consumers to do?

“We are part of a large network of organizations around the world saying to consumers – don’t buy chocolate from the big companies we have sued. And write them to tell them why you are not going to buy their chocolate until they stop. Then there is a wonderful small organization called Slave Free Chocolate that lists about thirty companies that are smaller that we have all verified are not using child labor. And they are investing in the communities. They are teaching progressive farming techniques. They are terrific little companies. And their chocolate is fantastic.” 

[For the complete q/a format Interview with Terry Collingsworth, see 35 Corporate Crime Reporter 21(10), Monday May 24, 2021, print edition only.]

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