Aired On:
April 13, 2021

The world’s biggest chocolate companies have been promising to end child labor in their supply chains for decades. In that time, they’ve thrown their support behind shiny public relations campaigns to gloss over the problem. They’ve set deadlines, missed them, and moved the finish line, all while they continue business-as-usual. And for over a decade, two of those companies, Nestlé and Cargill, have also been in court with International Rights Advocates (IRA), the organization whose sole focus is to sue multinational companies for violating human rights in their global operations.

In December of 2020, Nestlé and Cargill landed in the Supreme Court for a lawsuit filed by six people who were forced into child labor in their cocoa supply chains. In this episode, we speak with Terry Collingsworth, the Executive Director and attorney at International Rights Advocates that’s representing the six plaintiffs. Are corporations above the law? Do money and power trump human rights? Those are the questions at stake in this case that has the potential to change corporate accountability in the U.S. The conversation marks a turning point as we shift our focus from voluntary certification to the fight to hold corporations responsible in ways that they can’t just walk away from.

Take Action: Add your name to the petition and tell Nestlé, Cargill, and other big chocolate companies to STOP using child labor in their supply chains. Then, join us on May 7th, 2021 at 10 AM PST for a live, online conversation about building a more ethical future in the chocolate industry. Register now to reserve your spot!

Dana Geffner:
In December, Nestle and Cargill were in the Supreme Court being sued by six people for the harms they suffered being forced into child labor on cocoa plantations.

The case is one that’s been making its way through the courts for over a decade. In that time, Nestle got Fairtrade certification for their KitKat bar, and then dropped it – as we have been discussing over the past few episodes. In that time, millions of children have spent their youth working on cocoa plantations.

And a lot has changed in how we think about ethical supply chains. But some things are still the same: forced and child labor remain a huge issue in cocoa—and at the root are poverty prices.

We started this series going through the ingredients in a KitKat bar, and the stories behind them. Last episode, we caught up on the story with Joanna Pollard of Fairtrade Yorkshire. They’re the ones campaigning in support of Ivorian cocoa farmers calling for Nestle to continue to deal with them on fair trade terms.

If you haven’t already, go back and listen to it. I don’t want to drop too many spoilers, but it really shows in real time how a corporation like Nestle can make a promise, redefine it, then sell their compromise as some sort of victory.

That process, those redefinitions and new pledges has been a theme throughout this series. We’ve heard from so many guests how Nestle has walked away from commitments – to farmers and fair trade, on deforestation, and on child labor. In this episode, our Campaigns Manager, Anna Canning is going to talk to Terry Collingsworth. Terry is a lawyer who has dedicated his career to holding corporations like Nestle accountable for human rights violations. And that case that Nestle’s facing in the Supreme Court that I was talking about just a minute ago? That’s his work.

Anna Canning:
Hi, it’s Anna. Over the last few episodes, we’ve traced all the ingredients in a KitKat bar. Now we’re diverging a little from cocoa, sugar, and all the rest. This episode we’re going to talk about another constant ingredient in our global industrial food system. Money and power. It doesn’t fit quite so neatly on a label, but maybe it should. Imagine a disclosure of how little the farmer earned and just how much the corporation took in – and how they used that to buy still more power.

Corporations have certainly rigged the system plenty. And we’ve followed how Nestle has turned so many demands for better practices into little more than marketing. Today we’re talking with Terry Collingsworth, Executive Director of International Rights Advocates, a Washington D.C. based human rights advocacy group. They are cutting through that marketing noise, with a single focus:

Terry Collingsworth:
And that’s all we do, is sue multinational companies for violating human rights in their global operations.

Anna Canning:
So in your career, which came first for you, human rights or law?

Terry Collingsworth:
Kind of a combination. I’m old enough that when I went to law school, I was going to be a union lawyer. So I wanted to work for unions. I had worked in a factory and was a member of the International Association of Machinists for five years. But by the time I got out of law school, globalization had really started to explode and it was clear that we needed to do something about the abuse of workers in situations where U.S. Companies and European companies had off-shored to places where they could abuse workers all over again and start the clock on when those workers would get organized. So I started out with the goal of trying to do something internationally to help workers in the global economy.

Anna Canning:
Interesting. And so what first brought your attention to cocoa and the conditions faced by people who grow that crop?

Terry Collingsworth:
Right after I started doing this work, which was 1990 I became aware of the cocoa situation from reports of friends who had done some research there.

Terry Collingsworth:
The civil war in Cote d’Ivoire prevented someone like me, who’s obviously white, from sort of just parachuting in there and walking around. It would have been very dangerous. So I sent some other people to do research and by 1998 or 1999, we had some very solid information linking the multinational cocoa companies to the child slavery, particularly at that time, Nestle and Cargill. The first real action we took was that I started working with Eliot Engel in the House of Representatives and pressed for legislation that would have banned the importation of products coming in, cocoa products coming in, that was produced by a child’s forced or child slavery.

Engel put a bill through the House of Representatives with a huge bi-partisan majority. And we were really encouraged by that and celebrated that we might actually be able to do something quickly for a change.

Anna Canning:
Dating myself here, but remember that Schoolhouse Rock song? Right now it’s “Just a Bill, sitting on Capitol Hill.” Getting voted through the U.S. House of Representatives is a first step. But to actually become the law of the land, that same bill also has to get passed by the Senate, and finally signed by the President.

Terry Collingsworth:
We had kind of caught them by surprise in the House. When the bill went over to the Senate, the cocoa companies hired the biggest lobbyists you can imagine, including Bob Dole and Mitchell,

Anna Canning:
That’s former Senator George Mitchell and former Senator and presidential candidate, Bob Dole.

Terry Collingsworth:
And they they watered down the law to become the Harkin-Engel Protocol, which was a voluntary initiative where in 2001, the companies promised to stop using child labor by 2005. After that, they gave themselves three extensions of time unilaterally without any input. And now they’ve promised that by 2025, they will reduce by 70%, their reliance on child labor. Now that’s interesting because that admits they’re using it. They cannot deny it, but they’re admitting they’re using it. And they’re saying, we’ll stop (voluntarily) when we’re ready to do that is essentially their position.

So in 2005, after they missed their first deadline, that was the first lawsuit we filed against Nestle and Cargill on behalf of formerly enslaved children who had managed to escape and returned to their homes in Mali, where I met them and where we gathered additional facts to sue these companies.

Anna Canning:
So often, you hear about human trafficking or something in the news, and you know, you see like the mugshots of that one bad guy, but you’re not going after one bad guy, one individual, one farm owner, whatever. Why is that?

Terry Collingsworth:
Well, this is a system. It is a production system that was set up by and for the benefit of these large multinational companies.

And they rely on this system of cheap cocoa that they know is harvested by either child labor or trafficked child labor. I don’t make a moral distinction. I think that they’re both highly illegal when you realize the dangerous work these children are doing and how many of them are doing it, but it would not exist without these multinational companies and all of the small farmers that are barely scraping by because the price of cocoa is so low, they are completely dependent on these relationships they have with cooperatives that then have relationships with the multinational companies. So going after one farmer, isn’t going to do a thing. You have to stop it at the top.

Anna Canning:
Yeah. So, there’s no question, right? That there’s forced labor and child labor in all of Nestle’s supply chains for cocoa?

Terry Collingsworth:
There’s no question.

Anna Canning:
So what is the question that’s actually at stake in your case that is currently in the Supreme Court?

Terry Collingsworth:
You’re not going to believe the issue that Nestle and Cargill have raised in the United States Supreme Court.

Anna Canning:
This case that’s now in front of the Supreme Court is the same one that Terry and International Rights Advocates filed back in 2005. They had actually earned a favorable decision in the lower court and were about to go to trial when Nestle and Cargill appealed, landing the case in the Supreme Court.

Terry Collingswort:
And the question presented is they claim that because they are corporations, they cannot be liable under international law. Only individuals can, and I’ll have to say I was floored that they would have sort of the chutzpah to make that argument. It is, it’s an insanely horrible position to take. Slavery is okay, as long as you’re a corporation, that’s what they argue. So the argument was by telephone. And so we didn’t get to see the expressions on the faces of some of the justices when they asked their questions, but even Justice Alito and Justice Thomas, the two most conservative justices on the court, clearly found this position to be outrageous.

Terry Collingsworth:
Justice Alito said something like “Your position would lead us to some conclusions that I don’t think we would be comfortable with.” And all of the other justices asked hypotheticals like, “You mean to say that if 20 people are trafficking children and abusing them and making them work on cocoa plantations, but if they formed a corporation, it would, okay?” I mean, that’s the essence of their argument. So we’ll see. I mean, behind closed doors, this is a very conservative Supreme Court. They might figure out some other way to help out the corporations, but I don’t think they’re going to rule the corporations are legally permitted to engage in child slavery simply because they’re corporations.

Anna Canning:
Can you talk a little bit about the law that you are filing the case under that’s in the Supreme Court right now?

Terry Collingsworth:
Yes. It’s called the Alien Tort Statute and it was passed in 1789 by the very first Congress. The Founding Fathers, if you will, thought that we should have a law that would allow for violations of the Law of Nations to be brought in U.S. courts. The law has exactly 16 words.

Anna Canning:
The law is short, and its title is even shorter, but each word of it needs a little explanation. Alien, in this case, has nothing to do with extraterrestrials. It’s an old-fashioned word for people who aren’t US citizens that lives on in some legal texts – and in common speech, it’s a pretty offensive way to refer to our fellow humans.

Tort is a specific legal term for a wrongful act that harms or injures a person, regardless of whether that harm is intentional, accidental, or due to negligence.

And statute? That’s another word for law. This language is old. But that’s because that’s just how long it’s been clear that these sorts of human rights violations are bad.

Terry Collingsworth:
It essentially says that an alien can sue for, in tort for a violation of the Law of Nations.

Anna Canning:
One more definition here. Way back before we had all the volumes of International law that currently exist, there was a notion of the Law of Nations. We’re talking about a sort of general consensus way back even in the time of ancient Roman emperors that there were some things that are just off limits. What counts?

Terry Collingsworth:
That’s a short list that is slavery, genocide, war crimes, crimes against humanity, torture and extrajudicial killing. And whenever a multinational company representative will debate me in public. I love to ask “Which of those are you concerned you’re going to get caught doing? because you are so aggressively opposed to this law, that it makes me think that you believe that you are responsible for one of those heinous crimes. And if I were you, I’d spend my time making sure we aren’t doing those things rather than trying to kill a law that’ll give us a cause of action for anyone who does violate those serious human rights standards.”

Anna Canning:
Terry and human rights lawyers have been using the Alien Tort Statute since the 90s.

At first, they had some success suing multinational corporations over abuses in their supply chains. But then

Terry Collingsworth:
Corporate America lined up behind killing it and began in all of our cases filing amicus briefs to take outrageous positions to limit the scope of the statute.

Anna Canning:
This organized push for corporate immunity was on full display in the case representing formerly enslaved child laborers at the Supreme Court this December.

Terry Collingsworth:
The U.S. Chamber of Commerce, the National Association of Manufacturers, the U.S. Council of International Business. They all filed briefs in favor of the position taken by Nestle and Cargill.

Anna Canning:
And corporate America’s efforts to undermine legal protections have paid off for them. In a 2016 decision in a case called Kiobel vs Royal Dutch Shell, the Supreme Court added onto the original requirements of the Alien Tort Statute.

Terry Collingsworth:
So they invented, by a five to four majority, a new standard that says you have to show that the claims you bring touch and concern the territory of the United States—wholy invented. And Scalia and all these originalists, so-called originalists, they suddenly were not so willing to just look at the language of the statute.

They doubled it and invented completely this new standard. So what it means, in practice, is we have to show that the companies participated in the human rights violations in some measurable way from the United States.

So in Nestle, we argued that the companies provide funding, planning, marketing, pesticides, education, and this fake child labor policy, the Harkin-Engel protocol, that all occurred in the United States. So they could continue to sell their cocoa in the United States.

Anna Canning:
The lower courts agreed that this was enough US-based activity to count. And, in short, the question in front of the Supreme Court is basically whether “out of sight out of mind” applies to corporate supply chains and the people who work in them. If the Supreme Court sides with Nestle and Cargill on this one, that’s really bad news for all of us who hope to hold corporations accountable.

Terry Collingsworth:
So I don’t expect that they’re going to do anything with it, but we’re in line with everyone else, now that we have a bare majority in the Senate and the House and a Democratic president. With a minimal effort, like changing three words, we could fix and restore the Alien Tort Statute with an amendment. And I hope we can get that done because it’s really a shame that we are being deprived of this basic tool.

Anna Canning:
So I’m not a lawyer at all, obviously. But one of the things that has sort of trickled down to my level of legal understanding out of the Supreme Court in the last decade or so is that we went through this entire process where there was an argument that corporations are in fact people for the sake of speech. And this case now seems to be to some extent, them wanting to have that both ways.

Terry Collingsworth:
Absolutely. The famous case, Citizens United gave corporations, freed corporations from any financing restrictions that they had previously had and allowed them to make unlimited contributions because they are people too. They essentially were empowered with the same rights under the 14th amendment, as human beings. We had a section in our brief in the Supreme Court mocking that, the having it both ways, but we thought that maybe that was a little too cute, that the justices knew that, and didn’t need it thrown in their face. So we ended up not keeping it in. They know, they’re fully aware that what they did in Citizens United and how it affects this situation.

Anna Canning:
It turns out that, just like the rest of us, lawyers arguing before the Supreme Court have to decide how much to tease out corporate hypocrisy. But, Terry points out that it’s not just an inconsistency. It’s baked into the system.

Terry Collingsworth:
If you ask an officer of a corporation, they will simply say that the corporation exists to make money. Period. So can you blame them for being sort of greedy and trying to have it both ways in the law? of getting everything they possibly can with their money and power.

And what we exist for as a society, and as a democracy, I hope, is to restrict that power so that it doesn’t hurt people. That’s what you do with power or greed. You try to regulate it so that it doesn’t hurt people.

And that’s sort of how we view our job here. It’s up to us to try to stop them here, where these executives all go home after making millions of dollars and pat their kids on the head. And probably don’t even think about the fact that they’re enslaving other kids to keep their kids in this mansion somewhere in an enclave that is protected by a fence.

Anna Canning:
Yeah. Since we’re sort of shifting gears to the actual human impacts of this case, how did you first connect with the people who you are representing, who were then, you know, formerly enslaved child laborers?

Terry Collingsworth:
A person working with me back in the late nineties, her name is Natacha Thys, she’s a Haitian American. She was making the trips there initially. She speaks French and she can easily move around without drawing too much attention to herself. And she heard of, and then met a Malian man named Macko. Now, Macko was the Malian General or Consul General to the Malian embassy in Cote d’Ivoire. He had a very high position there. He started noticing that the trafficking, particularly in the late nineties, when the civil conflict ended in Cote d’Ivoire. The cocoa business exploded and they needed more bodies to do it, and trafficking just really went through the roof. So, Macko started noticing that his people from Mali were being trafficked. Little kids from Mali were coming in to do this work. He started raising the alarm about that and complaining and raising the visibility of the issue. He was told by his embassy, which presumably was told by the much more powerful government of Cote d’Ivoire, to knock it off, to stop complaining about this.

Terry Collingsworth:
It was damaging relations between the countries and he didn’t, he refused, he kept raising the profile. He even started rescuing some kids and they fired him. So he then became an unrestrained advocate for, an activist for, this trafficking issue and began helping kids. He rescued our first six boys in the case in the Supreme Court, John Does one through six, he rescued personally John Does four and five and took them back to Mali and he helped many other kids get back there. So he agreed to begin interviewing kids who could identify where they worked, how long they worked, who could tell their stories credibly so that we could then select a few of them to be the class representatives in the first case. So it was Macko who introduced us to all of them. And he also introduced me to the eight young men who are now the plaintiffs in the new case. Macko and I speak regularly. And we are now not only collaborators, but I have just tremendous respect for him. Not many people would put their own livelihood and reputation and all of that on the line to correct such a horrible practice. And he did and continues to do so.

Anna Canning:
Wow. And that’s like 20 plus years on.

Terry Collingsworth:
Yes, it is. We both have grayed a bit, but the fire burns bright.

Anna Canning:
Back in episode one, where Franck and Fortin mentioned Nestle’s Cocoa Plan—that’s their plan for “Better Farming, Better Lives, Better Cocoa.” Franck and Fortin know it as a program to improve productivity. Similar to their palm oil programs, which Robin of Rainforest Action Network criticized in Episode Three, the standards aren’t public. We’ve criticized the program in a number of ways throughout the series. Now I asked Terry about this plan, and specifically how Nestle is addressing child labor through their company programs.

Terry Collingsworth:
Well, first of all, Nestle and the other companies got away with using only the Harkin-Engel Protocol until about 2015.

Anna Canning:
The Harkin-Engel protocol is that deal that the companies signed on to back in 2000 promising to get rid of child labor in their supply chains. That one we keep talking about where Nestle and all keep giving themselves an extension, a little longer to end their exploitative business practices.

Terry Collingsworth:
But by about 2015, the activist community was no longer buying the Harkin-Engel Protocol line that was clearly nonsense and it wasn’t going to result in anything. So they all started rolling out these new programs. And again, it shows the collusion between these companies at the highest levels that they all through the World Cocoa Foundation created the same program together. And the C.M.L.R.S.

Anna Canning:
That’s Child Labor Monitoring and Remediation Systems

Terry Collingsworth:
that they all described that they have. And so they were able to say, well, now we’re really digging down. We have this new thing. So don’t worry. We’re on top of the problem. I went to Cote d’Ivoire in 2019,

Terry Collingsworth:
then February or March or so of 2020, then we couldn’t go anymore. But I had one of the most productive trips ever. I was able to interview the World Cocoa Federation’s representative there, Tim McCoy. He’s a vice president. He’s the highest official in Cote d’Ivoire for them.

So he began our meeting by saying, sure, he’s from Tennessee. So he put on this like enhanced drawl. But he was like, you know, when I was a child, I got up every morning and help my parents milk the cows before I went off to school. And that’s all that’s going on here. These kids, there’s a lot of kids, but they’re just helping their parents.

And I kind of lost it. And I said, Tim, have you ever been to a plantation? These kids are not helping milk the cows or doing a little chore before school. They’re not in school. They’re using dangerous tools, machetes and they’re applying pesticides and herbicides without any direction whatsoever and no protective equipment. That is not unusual. That’s the norm. I don’t believe I’ve ever been to a plantation in Cote d’Ivoire in all the years I’ve been doing this work where, when we’re just randomly driving around that, I don’t go to a plantation and there are kids working there they’re using machetes and they’re applying pesticides.

Terry Collingsworth:
I was able to interview the representative for the Fair Labor Association, which does the monitoring that Nestle cites on their website.

Anna Canning:
The Fair Labor Association is a US-based initiative created by Nike and others in response to campaigns calling on big sportswear companies to eradicate sweatshops in their supply chains. Nestle was the first food company to sign on. The Fair Labor Association’s efforts to promote compliance with core international labor standards has been criticized for going easy on corporations in the past.

Terry Collingsworth:
But I spoke to the Fair Labor Association that is doing Nestle’s work. So it’s really applicable to them in particular. They take a very small percentage of their supply chain. And it ranges between companies from 20 to 30% maximum. And they then focus on that, that they’re creating this small program that they can say, “we’re monitoring this, and we’re remediating that.” But if you ask the right question, they admit that that’s all they’re doing. That the 70 or 80% of it is what one person there called the “free zone.” There’s no monitoring, do whatever you want. And so that’s the fraud of their new approach. Now, if they were sitting here now, they would say “yes, but we’re gradually going to, you know, roll it out.” Well, when? Past 2025? I mean, how many more years do you, a multi-billion dollar corporation, get to get away with using child slaves when you could fix it tomorrow, if that were a serious commitment? So these new programs are simply what you would call a show program, or a fake program. They’re misleading the public by creating, very strongly creating the impression that that applies to their entire system and that everything is now fixed. It isn’t.

Anna Canning:
Terry points out that we’re speaking of Nestle in particular, but the model is similar across the big chocolate brands. And Terry is super passionate here. But he’s not just a lawyer advocating on behalf of his clients. Last fall, a report came out, commissioned by the World Chocolate Foundation, an industry trade group. That report showed that those child labor monitoring systems that Terry has been talking about reduce child labor by about 30% in the communities where they are put in place. And as Terry just pointed out, these programs exist in just a fraction of communities. All that is to say that it shouldn’t come as a surprise that child labor rates are increasing.

It’s now been 20 years since the big chocolate companies first pledged to end child labor in their supply chains. Their voluntary Child Labor Monitoring and Remediation Systems are making slow progress. And corporate interests have managed to gut the Alien Tort Statute that advocates have been using to hold corporations accountable.

Now, as the case against Nestle and Cargill has been waiting on the Supreme Court, Terry’s team has also been traveling back and forth to Cote d’Ivoire and doing more research.

Terry Collingsworth:
So, we filed this new case February 12th, 2021 under this Trafficking Victims Protection Act. And in fact, the trafficking statute was designed for just this very thing, which is stopping the use of traffic or forced child labor in supply chains.

And it has essentially three elements. We have to show that a venture exists. A venture is a loose association. It doesn’t have to be a legal joint venture, a venture exists. And here we have the companies working together since at least 2001 with the Harkin-Engel Protocol, with the World Cocoa Foundation. And also now with these new C.M.L.R.S. programs,

Anna Canning:
That’s Child Labor Monitoring and Remediation Systems

Terry Collingsworth:
They’re cooperating, they’re working together as a venture. So that’s the first element. The second element is we have to show that the venture uses or has forced or trafficked child labor. And that’s easy here. The plaintiffs here were all trafficked. They were essentially kidnapped by false pretenses from Mali. And they were taken to work on cocoa plantations that are in the supply chains of these companies.

And then the last element is we have to show the companies knowingly benefited from the child slavery. And of course they do. That’s their entire business model here. They’re getting cheaper cocoa because a whole bunch of it, most of it even, is being harvested by forced child labor or whatever they want to call regular child labor.

But the U.S. Department of Labor study came out in October of 2020, just a few months ago, that they funded the University of Chicago’s NORC Institute to try to quantify today, what is the child labor situation? They found that since the last study in 2015, child labor went up and there are now 1.58 million children harvesting cocoa in Cote d’Ivoire and Ghana. Isn’t that an astounding number?

Terry Collingsworth:
So all of this fake programming that they’re doing, all of the money they’re spending on claiming that they’re working on their cocoa promises—their cocoa promise is a lie. And there’s no debate whatsoever that there’s more kids today harvesting cocoa in the supply chains of Nestle and the other big companies than there were I started doing this work in 2000, when we sued them in 2005. They know they’re getting away with it, and they’re not doing a thing to really stop it. So this new statute,

Anna Canning:
That’s the Trafficking Victims Protection Act that this new case is filed under

Terry Collingsworth:
it’s going to really go after the supply chain itself. And it’s not a defense for them to say, that’s not us. It’s the farmers that are doing this. We just buy the cocoa. This law makes them responsible for what happens in their supply chain, if they’re knowingly benefiting from it.

You know, and one other point I would like to make about that though, is the trafficked part. The Fair Labor Association person who does the monitoring for Nestle, he conceded to me that it’s really hard for them to identify trafficked labor because the kids themselves and the farmers are trained to lie. That you go up and you ask a kid, “how did you get here?” “Oh, that’s my uncle.” That’s what they normally say. I’m working with just a brilliant guy in Cote d’ivoire, his name is Ange Aboa. He’s a Reuters reporter.

I’ve been fortunate that I did some trips with Ange Aboa who’s been doing this work for a long time and is very sophisticated in his analysis. And he would be able to tell us by the dialect or accent of the kid, if they were even from Cote d’Ivoire. And there were several instances where a kid said, “ah, no, this is my uncle.” Or “I’ve been here, I go to school.” Or, and Ange would say, “no, no, no, you’re from Burkina Faso, aren’t you?” And then the kid would sort of hesitate and then eventually confess that, yeah, in fact, he’s from Burkina Faso and he’s only 12, not 15. And you got to spend the time, but that’s one of the things I think we still need to do, cause I don’t know why the Department of Labor wasn’t interested in that. That’s probably one of the most important questions, are they trafficked? That means they’re way more vulnerable if they don’t have any family around. So, but I’m just saying that for whatever reason, they didn’t focus on it.

Anna Canning:
So, this story here isn’t just a “gotcha” kind of moment. It really underscores how important it is for people who are asking sensitive questions to know and understand the community.

Terry Collingsworth:
And the companies at least admit that they don’t really do a good job of digging down to find out. But there are a lot of kids who are trafficked in my own anecdotal experience. About half of them were trafficked when we finally got a chance to interview them in some length. And then of course, on the other side of the border in Mali, Macko is collecting kids who are trafficked and managed to escape back home. There’s a bunch of them, there are thousands. So it’s a bigger problem than I think most people are willing to acknowledge.

And at the end of the day, every existing inspection program out there is one that was set up by the companies to inspect themselves. And, you know, in the monitoring world, we just laugh and say, there’s never been a case where the fox guards the chicken coop effectively. You just cannot ever trust that system. It is not credible by definition. And until we get the companies to agree to an independent monitoring system that they aren’t in charge of, and that they aren’t threatening to withhold money from, you’re not going to get honest monitoring going on in the cocoa sector.

Anna Canning:
Terry’s been around for a while. He’s seen the attempts to get a real law watered down into the Harkin-Engel protocol, that promise to end child labor that we’ve been talking about all episode. And so I ask him what he thinks about the possibility of new legislation now, especially given the current makeup of the House and Senate.

Terry Collingsworth:
Well, I think there’s a better chance now, simply because of the track record of the companies. They signed that in 2001, 20 years later they’ve given themselves another extension of time. So it’s not like the companies can come in with their lobbyists and say, don’t worry, we got this.

I think they’ve lost all credibility and it’d be hard for them to kill it. But let me say that I think our existing laws, particularly that trafficking statute are probably sufficient to allow us to win a case. And that will do a lot to raise the profile of this, but also to create huge potential liability for the companies. I think though, what we’re lacking and what I spend a lot of time puzzling over, is that we need consumers and people who care about children in Africa to step up and demand that the companies stop this and let them know they’re not going to buy their products anymore until they do stop it.

The companies are getting away with this by paying their lawyers to try to keep me at bay because the consumers aren’t putting any pressure on them at all. And I think that that is something that really, really needs to be done. And we’re trying our best to unite with others.

We had an incident in the fall where after George Floyd and the Black Lives Matter movement really exploded on the scene, both Nestle and Cargill tweeted out their support for Black Lives Matter. And I burst a gasket over that. I was like, you know, I know some Black lives that you don’t think matter. There are these kids that are picking your cocoa in West Africa and you’re allowing them to be literally tortured every single day. And you care about those African kids, those Black kids?

And they didn’t respond to me. But I mean, that is just so outrageous. So we’re trying to reach out to other groups to educate them. “Like did you know?” And in most cases, people don’t know that these companies are using slavery. So that’s step one.

Terry Collingsworth:
I think what we’re about to do next as the International Rights Advocates is try to work with partners and set up a new entity that could serve as an independent monitoring body that, that we could drive the companies into because we need to be ready if I win this case, either one of them, or if some company finally decides that they’re going to not spend money on lawyers and try to actually solve the problem, we need a monitoring system that is credible. And I refer people to a wonderful program called GoodWeave that monitors hand knotted carpets in South Asia. Consumers now know that if their carpet has that label, it was child labor free. And I think we could do that with cocoa.

We need a real label that signifies only the only thing it is signifying is that this has been monitored and certified as child labor free. You can rest assured. And I think that we did it in the carpet sector, which was much more difficult. ‘Cause those looms are spread all over South Asia. You got to find them in a barn, in a shack, but the plantations that grow cocoa, they’re very centralized. You can drive around the entire cocoa sector in Cote d’Ivoire in about six hours. And that would be so easy to map out and monitor. I hope someday while I’m still breathing air that we get a chance to do that.

Anna Canning:
Well, I must say personally, I am skeptical about one more label being the thing that will solve the problem of cocoa. You know, I think there was a study that came out last year. There are currently something like 92 sustainability initiatives in West Africa trying to put different bandages on “the cocoa problem” as it were. And you know, I’m not sure that one more is going to get us there, but…

Terry Collingsworth:
Part of the reason there’s a proliferation of labeling though, is that the companies enjoy that. I mean, they’ll support one over here, then somebody else support that one over there. Because they want to create consumer confusion. But if they have to become invested to not go out of business, in supporting a child labor free initiative, then that might clear the field of some of those other labels that are just there to confuse people.

Anna Canning:
So I just have one, one last question for you here at the top of the hour, what would a truly fair, sustainable, chocolate trade look like to you?

Terry Collingsworth:
Well, I think the key components are going to be, this is not my own thoughts. I’m reflecting on people I’ve talked to that know a lot more about the industry than I do, but number one is going to be paying more for the cocoa. You cannot divide up that little bit of money they’re paying for the tonnage of cocoa to have decent lives for the people who are harvesting the cocoa. It’s just impossible. You’ve got to pay more. Now, if you ask any one company, if you ask Nestle, well, why don’t you pay more? They’re only defense is, well, if I pay more than I’m at a competitive disadvantage from Berry Callebaut, well fine. Let’s make them all pay more and make sure then that’s step one.

So I think it is the combination of paying more and then doing the monitoring and certification that the result of paying more is that there are no kids and that the adult workers on these plantations are making a decent wage and they have protective equipment. And the job is not dangerous for them too. That will cost money.

And I think, I would always add at the end of any description of what I’d like to see is that these big companies like Nestle have been profiting for decades on the backs of child labor and child slavery. Let’s make them put a little bit of money into the pot to repair some of the damage they’ve done. They have ruined communities. They’ve deforested communities. They have left people maimed from health accidents and other things that happen when you’re doing dangerous work all day long. Let’s let them clean up their mess of it, too. And then we can all feel good about having a chocolate bar.

There are companies that wrote a brief, in our case, in the Supreme Court, I think there were 18 of them. They filed an Amicus brief saying they’re small artisanal companies that it can be done right and they explain in their brief how. But companies that are making a living by producing a high quality chocolate that is not produced by children or through deforestation, et cetera, it can be done. We’ve just got to get the big guys like Nestle to join in the civilization of their industry.

Anna Canning:
My conversation with Terry ends in a way kind of comes full circle for this series. As Merling Preza explained in Episode 4, fair trade certification developed out of the desire from small-scale farmers to distinguish their crops and their ethics vs the exploitation of business as usual.

And certification also grew in part out of people recognizing that laws and government institutions were not stopping corporations from exploiting people. Terry described that moment when there was about to be a law holding corporations accountable for child labor. And then lobbyists – lobbyists who were formerly prominent politicians – stepped in and stopped it. That moment represents some of the worst of our systems of government. The ways in which we’ve seen that corporate power has a lot of sway with politicians.

I think that’s a part of why or how the idea of “voting with your dollar,” has been so appealing and so sticky. It’s clear that money has power, and too many elected officials are not as dedicated to public service as we would want.

But, as we’ve also seen throughout these conversations, “voting with your dollar” isn’t enough to change the system. Corporations are designed to “get everything they can with their money and power,” as Terry put it in our conversation. Maximizing profit is what they are legally bound to do. Everything else, the voluntary commitments, and the certifications, are just that – voluntary. And we’ve seen how often those commitments are treated more as marketing tools than anything else.

Unfortunately, when it comes to voting with our dollars, the election is rigged. We can’t buy our way to holding corporations accountable. It’s unrealistic. And to reduce a person’s fundamental human rights, the right of a child to have a free childhood, down to a choice that gets made by a person in the grocery store? It’s not a real choice, and it’s definitely not a fair one.

The stakes in the case that’s before the Supreme Court are really high. If the Court decides in favor of Nestle and Cargill, it would grant corporations immunity for atrocious abuses in their supply chains – as long as they happen outside the US. We’ll be watching to see what happens – and we’ll be sure to keep you in the loop.

Dana Geffner:
That Supreme Court case that Anna and Terry have been talking about is based on the Alien Tort Statute. That was the law written back in 1789 by the Founding Fathers. I go back and forth on this – but is that law more powerful because for over 200 years we’ve been clear that there are some things that are just not permissible? Or is it just an embarrassment that here in the US, our human rights law is hanging on a rather antique-sounding law from over 200 years ago?

I think both of those are true, maybe one a bit more than the other depending on the day.

These cases brought by Terry and International Rights Advocates are putting the heat on Nestle and the other big chocolate companies to address the exploitation in their business model. I’m hoping they win justice for all of those who have been harmed by spending their youth working in awful conditions. And that win would raise the cost of continuing the current business model that is bent on extracting as much as possible from people and the planet.

Real corporate accountability can help get us closer to ending child labor. But it’s not the only tool.

Along with a coalition of other organizations, we’ve drafted a set of 5 demands of Nestle, as well as Hershey’s, Mars, Lindt, and the other big chocolate companies. These demands call for them to address the root causes of child labor – and to do it starting now.

One of the key steps is to pay cocoa farmers a living income, because even all those calculations that we discussed last episode don’t fully cover a thriving livelihood for farm families. We’re also calling for increased transparency and traceability to allow for real accountability. And we’re calling on the big chocolate companies to phase out the use of toxic pesticides – those pesticides are harming the health of the children at work in cocoa fields, in addition to their environmental impacts. Add your name to the petition spelling out the demands – we’ll have the link in the show notes. We hope you can join us, and share with the chocolate lovers in your lives.

Thanks for joining us on For a Better World. Stay tuned for our next episode. We’ll be talking to Charity Ryerson of Corporate Accountability Lab. She’s thinking a lot about ways to change the system and make it so we’ve all got more tools to hold corporations accountable. And that also creates space for fair, ethical businesses to thrive without having to compete with corporations whose models are built on underpaying.

Has this series left you with questions on chocolate and what an ethical future might look like? Join us for a live online conversation coming in early May. Follow us on social media to get the details for registration–we’d love to hear what you’re thinking!

Dana Geffner:
You’ve been listening to For a Better World, a podcast by Fair World Project. If you enjoyed the show, make sure to subscribe, review, and share with your friends.

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Fair World Project is a nonprofit organization and we rely on donations to keep our work going. If you liked what you heard or learned something new, consider becoming a monthly donor. Your contributions help us continue to bring stories like these from around the globe. Follow us on Facebook, Instagram, and Twitter to stay up to date between episodes.

For a Better World is made possible by our small (but mighty!) team:

Our show is edited by Stefanie De Leon Tzic

Jenica Caudill is our Producer

Anna Canning is our script writer

Our storytellers are Ryan Zinn and Anna Canning

Our music was composed by Mark Robertson

And I’m your host and the Executive Director of Fair World Project, Dana Geffner.

Thanks for listening.

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