DARK SECRET

09.30.15 5:15 AM ET

Lawsuit: Your Candy Bar Was Made By Child Slaves

A lawsuit filed Monday alleges that some of the world’s largest chocolate makers are knowingly using child labor in Africa.

The Milton Hershey School in Pennsylvania is one of the wealthiest education centers in the world. Founded in 1909 as an orphanage for “male Caucasian” boys, it was awarded 30 percent of the company’s future earnings by Milton S. Hershey upon his death. Thanks to the success of Kit-Kats, Reese’s, and Whoppers, the school is worth a staggering $7.8 billion.

Now home to more than 2,000 students, it owns a controlling interest in the $22.3 billion Hershey company—a chocolate maker with roots in child protection and education that, in the worst form of irony, allegedly relies on cocoa harvested by child laborers in West Africa.

It is this irony that serves as the motivation behind a class action lawsuit filed Monday against Hershey and two of its competitors, Mars and Nestle. The complaints, filed by three California residents, allege that the companies are guilty of false advertising for failing to disclose the use of child slavery on their packaging. Without it, the plaintiffs claim, the companies are deceiving consumers into “unwittingly” supporting the child slave labor trade.

“America’s largest and most profitable food conglomerates should not tolerate child labor, much less child slave labor, anywhere in their supply chains,” the complaint reads. “These companies should not turn a blind eye to known human rights abuses... especially when the companies consistently and affirmatively represent that they act in a socially and ethically responsible manner.”

The class action suits seek both monetary damages for California residents who have purchased the chocolate and revised packaging that denotes child slaves were used. It’s a new approach to an old problem: the chocolate industry’s deep, dark, not-so-secret scandal. It’s been 15 years since the first allegations of child slavery in the chocolate industry caused national outrage. Will this be the final straw?

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West Africa is home to two-thirds of the world’s cacao beans (cocoa), the main ingredient in chocolate—a product that’s fueled a $90 billion industry.                           

The first group to question the financial strategies behind the industry’s wealth was a British organization called True Vision Entertainment. In a shocking 2000 documentary titled Slavery: A Global Investigation, the group reported on the chocolate industry’s alleged connection to cocoa harvested by child slaves. The award-winning film opens on stick-thin adolescent boys in the Ivory Coast slinging hundred-pound bags of cocoa pods on their backs, followed by an interview in which the boys express their confusion over not being paid.

Later the filmmakers meet with 19 children who were said to have just been freed from slavery by the Ivorian authorities. Their guardian describes how they worked from dawn until dusk each day, only to be locked in a shed at night where they were given a tin cup in which to urinate. During the first six months (the “breaking-in period”), they say, they were routinely beaten. “The beatings were a part of my life,” says Aly Diabata, one of the former child laborers. “I had seen others who tried to escape. When they tried, they were severely beaten.”

The boys’ stories are sickeningly graphic. Before beatings, the boys say they were stripped naked and tied up. They were then pummeled with a variety of weapons, from fists and feet to belts and whips. In the film, some of the boys get up and imitate the beatings. Others stand to reveal hundreds of scars lining their backs and torsos—some still bloody and scabbed. They get quiet when the filmmakers ask whether any are beaten today and say some are simply “taken away.”

Asked what he’d say to the billions who eat chocolate worldwide (most of the boys have never tried it), one boy replies: “They enjoy something I suffered to make; I worked hard for them but saw no benefit. They are eating my flesh.” Toward the end of the segment, the filmmakers meet with one of the “slave masters,” who admits he purchased the young boys and that some of his men routinely beat them. His reasoning: He is paid a low price for the cocoa and thus needs to harvest as much of it as he possibly can.

The release of the film in late 2000 sparked national outrage. No one seemed more shocked than the chocolate companies themselves. In June 2001, Hershey senior vice president Robert M. Reese told Philadelphia Inquirer reporter Bob Fernandez that “no one, repeat, no one, had ever heard of this.” After internal investigations, several companies, including Hershey, expressed concern over the conditions of laborers in West Africa.

The news made its way to Congress, where U.S. Rep. Eliot Engel quickly drafted legislation asking the Federal Drug Administration to introduce “slave free” labeling. After gaining approval in the House of Representatives, the bill moved to a vote in the Senate, where it had the support needed to win passage. But just before the legislation made it to a vote, the chocolate industry stepped in with a promise it has yet to keep: to self-regulate and eradicate the practice by 2005.

The Engel-Harkin Protocol (or Cocoa Protocol), as the agreement was called, was signed in September 2001.

Eight companies—including Nestle, Mars, and Hershey—were signatories of the massive accord, pledging $2 million to investigate the labor practices and eliminate the “Worst Forms of Child Labor,” the official term from the International Labor Organization, by 2005. When the July 2005 deadline arrived with the industries yet to make major changes, an extension was granted until 2008.

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When the next deadline came and went, a new proposal arose. By 2010, the companies basically started anew with a treaty called The Declaration of Joint Action to Support Implementation of the Harkin-Engel Protocol. This document pledges to reduce the worst forms of child labor by 70 percent across the cocoa sectors of Ghana and Ivory Coast by 2020.

In the 15 years since the documentary sparked outrage, there are more child laborers in the cocoa industry than ever before. The companies have not only failed to stop the “worst forms of child labor”; they’ve seemingly made it worse. A report released on July 30, 2015, from the Payson Center for International Development of Tulane University and sponsored by the U.S. Department of Labor found a 51 percent increase in the number of children working in the cocoa industry in 2013-14, compared to the last report in 2008-09. The number, they found, now totals 1.4 million. Those living in slave-like conditions increased 10 percent from the 2008-09 results, now totaling 1.1 million. The study concludes that while “some progress has been made,” the goal of reducing the number of children in the industry had “not come within reach.”

The California plaintiffs’ false-advertising claims against Nestle, Hershey, and Mars are the latest effort to pressure the chocolate industry to fix a problem it has known about for more than a decade. “Children that are sometimes not even 10 years old carry huge sacks that are so big that they cause them serious physical harm,” the complaint alleges. “Much of the world’s chocolate is quite literally brought to us by the back-breaking labor of child slaves.”

The complaint goes into detail about the lives of the estimated 4,000 children allegedly working in forced labor conditions harvesting cocoa in the Ivory Coast. Many of the children are sold into slavery, some for less than $30; others are kidnapped or tricked into thinking it’s a real job, the complaint alleges. Once there, the children are allegedly trapped on isolated farms, threatened with physical abuse, required to work when they are sick, and denied sufficient food.

While the plaintiffs mention each company’s individual pledges to tackle the problem of child labor, they consider these promises to be “false assurances” that have done little to solve the problem. As long as the companies allegedly continue to use child slaves, the plaintiffs say they believe consumers have the right to know.

In the eyes of Miki Mistrati, an award-winning documentary filmmaker who released a movie on the subject in 2014, Shady Chocolate, the lawsuit may help, but it won’t be the answer. “There is no doubt that a campaign about the reality in chocolate production will harm the chocolate companies,” Mistrati said. “Modern slavery with children is a part of the chocolate industry today. But I do not think that it can be the real game changer.”

Mistrati, who consulted with UNICEF and the U.S. Department of Labor, among others, for his movie, said he witnessed child slave labor firsthand—and believes it can be stopped quickly. “Mars, Hershey, and Nestle have had every opportunity to stop the trafficking of children and illegal child slaves,” he said. “I have seen small children, 6 years old, being trafficked from Mali to Ivory Coast. It was so heartbreaking to watch. But the companies have not had the will to end it for many years. Only empty words and expensive advertising instead of using money to pay back to the children on the ground in West Africa.”

Mistrati stressed the importance of Americans taking at least part of the blame. “Consumers have not been critical enough,” he said. “They have not asked why a chocolate bar only costs $1 when the cocoa comes from Africa. Customers have been too easy to trick with smart ads. It is over now. This trial is a unique opportunity for the world to see how their chocolate is produced and why it is so cheap.”

***

Nestle responded quickly to a request for comment on the allegations, calling the lawsuit “without merit” and claiming that “proactive and multi-stakeholder efforts” are necessary to eradicate child labor, not lawsuits. Of the three chocolate makers, Nestle appears to be taking the lead in fighting child labor. The company is the first cocoa purchaser to set up a system for tackling the problem, with concrete measures in place.

The company’s more than $100 million action plan involves building a child labor monitoring and remediation system to identify children at risk, enable farmers to run profitable farms, and improve the lives of cocoa farming communities. “Child labor has no place in our cocoa supply chain,” a spokesperson from Nestle told The Daily Beast. “We are taking action to progressively eliminate it by assessing individual cases and tackling the root causes.”

Mars representatives echoed Nestle’s sentiments on child slave labor, saying the company “shares the widely held view that child labor and trafficking is abhorrent and rooted in complex economic, political, and social issues.” In an official statement to The Daily Beast, the company said it was “committed to being part of the solution.”

At the moment, that solution seems vague. The company points to “Vision for Change,” an initiative it launched in 2012 that, according to its website, is meant to “achieve sustainable cocoa production” and “address farmer productivity and community issues.” Mars mentions that it has built 16 Cocoa Development Centers and 52 Cocoa Village Centers in the Ivory Coast, where farmers are taught how to manage their land and crops efficiently. How it specifically targets child labor is unclear.

Steve Berman, managing partner at Hagens Berman, the law firm representing the plaintiffs, confirmed that Nestle seems to have launched the most tangible program but said it has yet to yield results. “They claim they’ve been taking steps. They partner with the Fair Labor Association to investigate, and they claim they’re committed to eradicating it, but the fact is the recent reports show the number of children in the cocoa industry has increased,” Berman told The Daily Beast. “We doubt that Nestle is taking this very seriously.”

“The consumers reaching out to our firm have been outraged to learn that the candy they enjoy has a dark, bitter production cost—that child and slave labor have been a part of Nestle, Mars, and Hershey’s chocolate processing,” said Berman. “These companies fail to disclose their use of child and forced labor, tricking consumers into indirectly supporting the use of such labor.”

Berman added that he believes Mars, Nestle, and Hershey’s failure to eradicate child labor in the cocoa trade boils down to one thing: “cheap labor; dirt cheap.”

After interviewing Hershey about the 2000 documentary for the Philadelphia Inquirer, Fernandez decided to pursue a book on the company’s trust. That book, The Chocolate Trust, was released in June. In the final chapter, he remarks on the oddity of a company with roots in child welfare making its billions on the backs of child laborers.

But it’s the 15-year gap that most baffles Fernandez, who remembers being shocked by the initial revelations. The fact that alleged child slavery persists to this day seems almost too difficult to believe. “The thing is the industry said it would solve it in 2001; then they said they’d do it by 2005,” he told The Daily Beast, before asking the pivotal question: “What happened?"

Update: Hershey sent The Daily Beast the following comment: 

At Hershey, we are committed to the ethical and responsible sourcing of all of our product ingredients and have no tolerance for illegal practices, including children used as forced labor in cocoa farming.The allegations in the lawsuit are not new and reflect long-term challenges in cocoa-growing countries that many stakeholders, including NGOs, companies in the cocoa supply chain and the U.S Government have been working diligently together to address for a number of years. Poverty is a fundamental issue in the cocoa-growing region of West Africa, and companies across the entire cocoa supply chain have been actively involved in substantial initiatives to improve the economic, social and labor conditions in these cocoa-growing communities.

Hershey is proud of the cocoa sustainability and farmer training programs we have established through NGOs and other partners in West Africa during the past few years. We have begun to see success from these programs. This includes programs in Cote d’Ivoire that are now beginning to take hold after years of political unrest that had hampered progress there until recently. From the work the industry has undertaken in recent years, it is clear that addressing the challenges will require an aligned and sustained focus from all stakeholders, including the cocoa industry, local governments, and NGOs and non-profit groups. That’s why CocoaAction, the industry response being led through the World Cocoa Foundation (WCF), is so important. These aligned efforts are aimed at accelerating sustainability and improving the livelihoods and social conditions of cocoa communities in Ghana and Cote d’Ivoire.

The cocoa industry, including Hershey, will invest more than $400 million in West Africa by 2020 to accelerate both the supply of certified cocoa and reduce instances of inappropriate labor by investing in better cocoa communities. These industry-wide efforts seek to reduce the occurrence of inappropriate farming practices that involve the use of children by reaching tens of thousands of farmers and their families in cocoa-growing areas, educating farmers about the risks and dangers of child labor, and training farmers and professionals to safely manage riskier tasks in which children have previously been involved. The combined and focused effort of the entire industry and other stakeholders is a very encouraging and positive development.