The Ivorian cocoa industry, which produces over 30% of the world’s cocoa, is notoriously rife with child labor. For years companies such as Nestlé, Mars, Hershey, and Cargill have promised to make real changes and eliminate child labor in their supply chains. And yet, despite these promises, little has changed.
This Valentine’s Day, CAL, together with International Rights Advocates (IRAdvocates), filed a Section 307 petition with Customs and Border Protection (CBP) asking CBP to issue a Withhold and Release Order (WRO) against companies importing cocoa products from Cote d’Ivoire that are “manufactured in any part with” forced labor, including forced child labor (read our Press Release here). The petition seeks a WRO after six months if the named companies are unable to prove they have eradicated child labor from their supply chains. To show this, the petition argues that the companies must publicly release their entire supply chains, down to the farm level.
The Ivorian Cocoa Industry
For decades companies have promised to make significant changes to their cocoa supply chains. And yet child labor, including forced child labor, is still endemic to the West African cocoa industry. There is clear evidence that children from Mali and Burkina Faso are trafficked into Cote d’Ivoire to work on farms, as well as evidence of internal trafficking of children. Children between the ages of 10 and 18 are often lured by promises of money or other gifts to travel to work on cocoa farms. There, these children often perform the worst forms of child labor, using machetes and dangerous pesticides, often without pay.
Child labor has been a constant issue in the cocoa industry. In the late 1990s and early 2000s, a campaign to pressure companies to stop using child labor and to pay adult workers a living wage culminated in an attempt by then-Representative Bernie Sanders and Representative Eliot Engel to introduce legislation to ban cocoa harvested with child labor from being imported into the U.S. Major chocolate and cocoa companies, including those cited in today’s petition, fought hard against the bill. The result was the 2001 Harkin-Engel Protocol, a voluntary initiative that gave companies until 2005 eliminate child labor from their supply chains. Fifteen years after the deadline, forced child labor is still a real problem in the Ivorian cocoa industry. Companies continue to import cocoa and chocolate produced in part by forced and child labor. While claiming to work to eradicate child labor, these same companies make huge profits off of the cheap and unsustainable prices they pay to farmers.
The Petition
Section 307 of the Tariff Act allows CBP to take action to stop the importation of goods “manufactured in any part with” forced labor. Under 19 C.F.R.§ 12.42 (e), if the [Customs and Border Protection] Commissioner finds that “information available reasonably but not conclusively indicates that merchandise … is being, or is likely to be, imported” into the US, s/he can issue a WRO for those goods. A WRO will stop the goods at the border where there is reasonable belief that such goods were manufactured at least in part with forced labor. The WRO, in effect, shifts the burden of proof to the companies to show their imports were not manufactured in any part using forced labor.
While we believe that corporations such as Nestlé, Cargill, Barry Callebaut, Mars, Olam, Hershey, and Blommer Chocolate need to be held accountable for their actions (or, rather, their failure to take action), we also believe that farmers and those at the bottom of the supply chain should not suffer because of companies’ failure to act in the past.
In order to protect the Ivorian economy, while still challenging these abusive labor practices, the petition seeks a WRO but with some important modifications. Rather than an immediate WRO, we are asking CPB to require companies to trace their supply chains to the farms from which they source, publicly report on independent monitoring and certifications, and implement a grievance mechanism in line with the UN Guiding Principles on Business and Human Rights. This gives the companies one, final, six month extension on their 2001 promises under the Harkin-Engel Protocol.
Closing the “Consumptive Demand” Loophole
For years, these companies could avoid WROs under Section 307 through a loophole in the Tariff Act of 1930. The consumptive demand exception, as this loophole is called, essentially “swallowed the statute,” as it provided that “in no case shall such provisions be applicable to goods, wares, articles, or merchandise so mined, produced, or manufactured which are not mined, produced, or manufactured in such quantities in the United States as to meet the consumptive demands of the United States.” This meant that no goods could be stopped at the border under a WRO if there was a domestic need for the goods. Because the U.S. imports so much of its consumer goods, there was almost always a need for the foreign goods and WROs were almost never issued.
Then, in 2016, Congress passed the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), which repealed this loophole. With the change to the Tariff Act and Section 307, CBP can now effectively issue WROs. CBP has been especially active in the past year. Although it issued only nine WROs between 1996 and 2018, in 2019 alone it issued seven. This signals that it is taking forced labor more seriously. In fact, in October CBP issued five WROs on the same day, mostly against specific shipments from specific factories or companies.
The remedy we seek provides companies with enough time to trace their supply chains, implement real monitoring, and create a legitimate grievance mechanism. It gives them warning, but also is a short enough timeline that they must actively begin to change their practices. Too many children have been caught in the crosshairs of these practices and lost their childhoods to making profits for the cocoa and chocolate companies. It is time that companies take responsibility and end this practice.
Allie Brudney is a Justice Catalyst Legal Fellow at Corporate Accountability Lab.
