he world’s chocolate giants could face punitive damages of US$50 million for each of eight former child slaves leading a class action against them in the United States. Potentially tens of thousands of former slaves could then expect similar sums.
The court might also order that a special master supervises the companies’ operations. But Terrence Collingsworth, the Executive Director of IRAdvocates, which is behind the action, doesn’t think it needs to come that.
- What has prompted your class action against the world’s biggest chocolate companies?
- Why have you named these companies in the class action?
- How easy is it to identify child labour on cocoa plantations in Ivory Coast?
“I think we’d all prefer them to work with independent civil groups and the NGO community who just want to help children as quickly as possible,” he says. “Certainly, the point is self-regulation has failed.
“My message to these companies has always been you are wasting money on lawyers, you’re wasting time and lying to the public with these fake [corporate social responsibility] programmes.
“Why don’t we work on a solution together that would allow the production of sustainable chocolate, not produced by children?”
Nestlé, Cargill, Barry Callebaut, Mars, Olam, Hershey, and Mondelēz, are named in the civil action taken on behalf of all children trafficked from Mali to Ivory Coast between 2009 and February this year to work as forced labour on the plantations providing their cocoa.
“We’ve named the companies that we think have the ability and power within the cocoa industry to end these practices,” says Terrence Collingsworth.
“We’ve named the seven big companies that we feel are responsible for the bulk of child labour and have the power to end it.”
“Probably all cocoa plantation work in the so-called free zones is performed by trafficked child labour”
The class action is estimated to encompass 50,000 children working in Ivory Coast. The seven companies named dominate the $130 billion a year industry. Ivory Coast produces 70 per cent of the low quality cocoa that makes its way into the chocolate on our supermarket shelves. The seven companies named buy 70 per cent of Ivory Coast’s cocoa.
Terrence Collingsworth believes probably all work in Ivory Coasts’s so-called free zones is performed by trafficked child labour. He says, “Those are the national parks that are being deforested. People are armed in there. I haven’t been inside those free zones.”
Otherwise, he says, trafficking and child slavery operate openly, at an industrial scale. Trafficked labour isn’t being monitored. Fairtrade and Rainforest Alliance monitors are checking on just 30 per cent of production and they’re not checking for child labour.
“It is conceivable under international law, International Labour Organization principles, local laws that if your family had a cocoa plantation you would be permitted to do non-hazardous work,” he says.
“I can’t imagine what that would be. The jobs involve machetes, cutting down pods, opening the pods, cleaning them out, using other sharp tools to clear the brush and there’s a lot of pesticide and herbicide application – the kids are doing all of that.
“This kind is of hazardous work is not permitted even in a family farm situation. The cocoa industry is quibbling over whether these kids are forced to work.
“Most people attribute the explosion of cocoa production in Ivory Coast to large numbers of child labourers”
“Under US law children couldn’t consent to doing hazardous jobs. So that in itself is forced. If you have sex with a minor in the US, your defence cannot be that person consented.
“We ought to be applying that principle to this situation.”
The scale of child labour is shocking, having risen to 1.56 million in the region, according to a report last year.
“Most people attribute the explosion of cocoa production in Ivory Coast to large numbers of child labourers,” says Terrence Collingsworth.
“As soon as civil unrest in the area came to an end in the 1990s, the industry scaled up very fast.
“The business model is to keep them for three or four years, from the ages of 11 or 12. When they are 12 years old and some guy is going to smack or whip them, they do what they’re told.
“As soon as they get to 16 and bigger, get a developed sense of self, then they figure out a way to escape.”
The eight plaintiffs in the action are Issouf Coubaly, Sidiki Bamba, Tenimba Djamoutene, Oudou Ouattara, Ousmane Ouattara, Issouf Bagayoko, Arouna Ballo, and Mohamed Traore.
As Quota reported in February, they were trafficked from as young as 11, forced to work without pay for up to five years; they still have visible machete scars. Fed so little they suffered malnourishment, they slept and worked in conditions regularly exposing them to deadly snakes, and they were made to work in highly dangerous conditions with machetes, pesticides and heavy loads.
Terrence Collingsworth began to work on addressing child slavery as civil war was coming to an end in the late 1990s. As general counsel of the International Labor Rights Forum (ILRF), he headed to the region to investigate.
“In the Nineties we issued these reports. Congress got interested and we had a law passed by a huge margin, sponsored by Eliot Engel, that made it illegal to import chocolate made with child labour.
“We had caught the companies by surprise, that’s why it passed. They then got their lobbyists out and managed to water this law down in the Senate, to a voluntary initiative which was called the Harkin-Engel protocol. That was in 2001.
“They’ve given themselves legal permission to keep using child labour until they stop”
“They promised to have ended child labour by 2005 or to have a concrete plan that was realistic to do so.
“Instead they’ve now given themselves three unilateral extensions of time and claim that by the year 2025 they will reduce their use of child labour by 70 per cent.
“This is genius because they’ve given themselves legal permission to keep using child labour until they stop.
“I gave them that first deadline. They said they were going to end it in 2005. But they hadn’t really done anything by then.
“So, I sued them in the first case that we have on behalf of six former child slaves from Mali who were trafficked. We sued Nestlé and Cargill.
“Sixteen years later, that case is still pending, it was just argued in the US Supreme Court in December.
“When things still didn’t improve we continued to do the research, made several more trips to Ivory Coast and we then got a new law. The trafficking victims’ protection act that was amended to allow for civil claims. It had been a criminal statute.
“These companies don’t think we can reach enough consumers to hurt them”
“We are using this new law which is much more specific and designed for these supply chain cases so we’re quite optimistic about our chances.”
Terrence Collingsworth says almost all cocoa labour in the Ivory Coast is performed by children and around half the children have been trafficked from neighbouring countries.
“I was surprised because it was so open and easy to see,” he explains. “It’s not like a sweatshop in India where everything is hidden inside a building.
“You can stroll onto a plantation and meet child slaves who are processing or harvesting cocoa for these giant multinationals.
“These companies don’t think we have the ability to reach enough consumers to hurt them.
“They are making a cost benefit analysis that it’s cheaper to fight me in court and not do anything.”
He says its is extraordinary that any company is defending the use of trafficked child labour in 2021.
“I’m a wreck when I come back from going to Ivory Coast because not only am I seeing it again but I’m seeing that nothing has changed.
“In 1863 we outlawed slavery – that’s a long time. What possible legal justification could there be? I’m afraid the answer is it’s only illegal if you are going to be prosecuted.
“In 1863 we outlawed slavery. What possible legal justification could there be?”
“Regarding the first action, from 2005 against Nestlé and Cargill, I was just astonished when they led with this argument which is they can’t be liable for slavery because they’re a corporation. In Common law only individuals have been prosecuted in the past, was their argument.”
However, this case has already thrown up a positive twist.
“The first group of six plaintiffs from the 2005 case are all about 30 years old now. I visit them every time I go to the region,” Terrence Collingsworth says.
“They were trafficked from Mali, they made it back to Mali and are now all adults with their own families and they’re in farming.
“We filed the case against three companies, the third was Archer-Daniels-Midland, which was as big as Cargill in the cocoa processing business in Ivory Coast. They sold their business to Cargill, they got out of the cocoa business. They then approached us because they were still responsible for enslaving our clients.
“So they asked if we would negotiate a settlement and they paid a substantial amount of money to the plaintiffs.
“That was one of the most fun trips I made to Mali to set up trust accounts and bank accounts. They each managed to buy a piece of land and put a house on it. And now they’re all small farmers, which was their dream. All their kids are in school. And they’re all activists now. They help us get the word out. They’re very much into trying to make sure this doesn’t happen again.
“Now I’ve sued them all, so no one company would be at a competitive disadvantage if they did the right thing”
“And they’re articulate, they’re smart. That’s the shame of it. If they’d gone to school they could have been lawyers helping people avoid these problems.”
As far as Terrence Collingsworth is concerned the situation is simple to address, and could be resolved almost immediately, if the seven companies named his action chose to do so.
“Each of these companies has said to me over the years that they can’t be the only one that’s paying more, because it will put them at a competitive disadvantage. Well now I’ve sued them all, so they can do it together.
“All of the members of the World Cocoa Foundation – that’s pretty much the entire market – could change the world by agreeing to pay a livable amount to the original farmer for the cocoa that’s harvested.
“The price of the cocoa is an almost an insignificant cost of the final product. You could add a lot to farmers’ payments without affecting the bottom line.
“These companies hide behind the notion that if they collaborate on price it would be an anti-trust violation.
“But they do collaborate on price. They agree to pay the minimum amount set by the government. So they could all agree to pay the maximum amount. You can be sure the government of Ivory Coast would like to triple that price. They’re told by the companies they won’t pay it.
Ayn Riggs was not prepared for the media attention when Tony’s Chocolonely failed to make her Slave Free List
“Also the consumer is ready for this and ready to make demands. Young people will drive a consumer movement demanding change.”
The Norc report of October last year and the class action have encouraged consumer groups to demand change faster.
“Every single company named in Terrence Collingsworth’s lawsuit devotes a section on their website to claiming they are doing everything possible to end child slavery. So how is the consumer to know the difference?” she says.
She explains that artisanal chocolate is generally by default, slave free, as high-quality cocoa is sourced from Latin American countries, such as Mexico, Peru and Ecuador. But some slave-free companies source cocoa from West Africa, such as Divine, which manages its own farms.
“This raises the question of price,” she says. “Is it fair that slavery-free chocolate will struggle to compete on a shelf against the cheaper, lower quality product, that has almost certainly been produced by child slaves?”
With this mind, Ayn Riggs and some of the chocolate companies on her list have supported Terrence Collingsworth’s class action by producing amicus briefs, on the cost disparity.
Ayn Riggs attracted widespread media attention in February when self-professed slave-free brand Tony’s Chocolonely did not make the cut on her list, because Barry Callebaut, one of the companies named in Terrence Collingsworth’s class action, makes their chocolate.
“I was not prepared for the media attention,” she says. “A couple of things had happened. The Norc report confirmed that the number of child labourers was going up and not down. You have to remember, I only got into this because I want child labour to end altogether.
“I’ve wanted this for 16 years. I don’t earn any money from my list. It’s free marketing for the companies on the list. And it’s an aid for consumers. I was so upset to see that things had grown worse, not better.
“The other thing is a lot of companies on my list have never been happy about Tony’s unfair cost advantage and have asked me for a long time to question how exactly Tony’s planned to end child slavery in Barry Callebaut’s supply chain.
“Green & Blacks stopped making the list when they were bought by Cadbury’s. I can’t allow the list to lend Cadbury’s any credibility.
“I’ve said to Tony’s let’s work together and figure out a way to make meaningful change.”
Terrence Collingsworth, Ayn Riggs and Paul Schoenmakers, Chief Impact Officer for Tony’s Chocolonely, will be among the panellists at Quota’s event ahead of Easter, The Ethical Egg hunt. We’ll ask just what slave-free options are available on the supermarket shelves.