Was your chocolate bar produced by child labor?

By Gemma Alexander

“Candy slaves” sounds vaguely cute, like a reference to people who can’t manage a sugar addiction. But the term has a sad, more literal meaning: most of the world’s chocolate is farmed by children held in slavery.

It’s a bitter truth many wish to ignore, but international candy companies are knowingly using chocolate, sourced from plantations in Côte d’Ivoire (the Ivory Coast), that participate in forced child labor. Recent developments, however—stemming from a lawsuit that has been dogging Nestlé since 2005—have opened up the possibility that major corporations might finally be held accountable.

Shocking accusations

The initial complaint against Nestlé (and food giants Archer Daniel Midlands and Cargill) was filed in July 2005 by human rights lawyer Terry Collingsworth, who has used the Alien Tort Claims Act as a key tool in his career-long crusade challenging corporations over their actions abroad. The ATCA allows citizens of foreign nations to use US courts as a means to sue organizations and individuals who have acted “in violation of the law of nations or a treaty of the United States.”

The plaintiffs are three anonymous Malians who claim they were trafficked as children to work on cocoa plantations in Côte d’Ivoire. They describe 14-hour workdays followed by nights spent in windowless rooms, along with terrible physical abuse; whippings, beatings, and guards who would slice open the feet of children who tried to escape. The companies are accused of aiding, abetting, and/or failing to prevent such practices in violation of the ATCA, Torture Victim Protection Act, the US Constitution, and California state law.

Slow-motion rollercoaster

The legal process has stretched out over a decade. Nestlé initially responded with an attempt to reveal the identities of the plaintiffs, which failed. In 2009, an amended complaint was filed with the US District Court in California. That complaint was dismissed in 2010 by Judge Stephen Wilson, who found that the case could not be brought under the ATCA. Observers filed several amicus briefs in favor of the plaintiffs; one brief stated concern that, “by creating a law-free zone for corporations, the District Court has charted an unprecedented and unjustified course that effectively immunizes juridical entities that commit serious human rights violations.”

In 2013, as the Nestlé case was being appealed, a Supreme Court decision in the case of Kiobel v. Royal Dutch Petroleum - which sought to protect against potential international conflicts and the extraterritorial application of US law - further weakened the use of the ATCA to seek redress for actions committed abroad. Even so, in 2014, a divided three-judge appeals panel vacated Wilson’s decision in the Nestlé case, finding that the presumption against extraterritorial application of the ATCA is overcome by the universal prohibition against slavery.

In September 2015, the same month that a Fair Labor Association report found evidence of child labor on farms supplying Nestlé, the company moved to have the case dismissed on technical grounds, claiming that corporations are not subject to liability under the ATCA. On January 11, 2016, the US Supreme Court rejected that argument, maintaining the plaintiff’s right to continue with the lawsuit.

A happy ending?

It’s still unclear whether the case of Nestle U.S.A. Inc. v. John Doe will ultimately result in freedom for children in cocoa-producing countries, or even greater corporate accountability. But now that child labor has been established as part of Nestlé’s process, it’s unlikely the judicial process will land in favor it. That opinion seems unlikely to change even if it adds a few cents to the cost of KitKat bars.

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