Politics of Poverty

Can we litigate our way to ethical business models in the cocoa industry?

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Etchi Avla, age 43, poses for a portrait as a manual laborer she hires opens cocoa pods on her cocoa farm in Botende, Ivory Coast. Credit: Peter DiCampo / Oxfam America Cocoa farmers in Ivory Coast

Chocolate companies are protesting a recent child labor lawsuit against them, saying the suit itself will discourage investment and corporate human rights efforts. We don’t buy it.

Last year, I wrote about John Doe v. Nestle et al, the 9th Circuit Court case which held that former child laborers were able to bring an action under the US Alien Tort Statute against Nestlé, ADM and Cargill for aiding and abetting enslavement in their cocoa supply chains – following the companies’ attempt to have the case dismissed. And even though they lost that case, the companies are at it again with the US Chamber of Commerce standing with other industry groups to urge the Supreme Court to undo the ruling, under the argument that such litigation discourages investment and corporate human rights efforts.

It’s ironic the Chamber has argued that such efforts would discourage investment, since at a gathering following the Rana Plaza disaster, a representative from the US Chamber passionately suggested that companies would more than welcome regulation in Bangladesh to avert such disasters in the future. This doesn’t seem entirely realistic though. After all, companies bring their businesses to countries like Bangladesh and the Ivory Coast because of the low cost of doing business – which are low precisely due to the lack or low enforcement of laws and regulations.

The reality for the cocoa industry, whether this suit goes forward or not, is that it will hardly discourage companies from sourcing cocoa in the Ivory Coast. The world’s appetite for chocolate is not waning, cocoa supplies are at risk, and since cocoa can only be grown in particular tropical climates (which are found primarily in developing countries), companies will continue to source cocoa there because, frankly, they have little choice in the matter.

But even as demand rises, and the chocolate industry rakes in $80 billion per year, farmers in places like West Africa have never been able to capture their fair share of the value chain—leaving communities impoverished and vulnerable to issues like child labor and trafficking.

While lawsuits can help move things forward, they are costly, ad hoc and time-consuming. The most complete and sustainable way to remedy the injustices we see, is through regulation and enforcement of laws that ensure companies fairly compensate farmers, prevent human rights abuses, and face real consequences when they don’t. To make this transformation real, companies will have to reform their procurement practices, change their business models to allow for profits to be shared more equally – which may mean that CEOs and investors will see their salaries and investments decrease to allow farmers and workers get their fair share.

And while this is the ideal, if a fear of lawsuits can help externalize costs in a way that pushes companies to think about more equitable business models, then I hope the Supreme Court will give the cocoa laborers their day in court.

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