Knowingly supporting forced labor or trafficking in supply chains should ensure that companies are held liable in a U.S. Court.

This case was filed on February 12, 2021 under the Trafficking Victims Protection Reauthorization Act (TVPRA), on behalf of eight former child slaves for trafficking and forced labor.

They sued Nestlé, U.S.A., Cargill, Incorporated, Cargill Cocoa, Barry Callebaut USA LLC, Mars, Incorporated, Mars Wrigley Confectionary, Olam Americas, Inc., the Hershey Company, and Mondelēz International.

Each of the Plaintiffs was trafficked from Mali by a professional trafficker, called a “locateur,” who promised them a good job harvesting cocoa. When they arrived in Cote D’Ivoire, the eight children were told they had no choice but to work without pay, they could not leave, and they would be fed only if they worked hard. They found themselves in a strange country with no papers, no money, they could not speak the language, and they had no idea where they were within Cote D’Ivoire.

The Plaintiffs were put to work performing hazardous work such as using sharp machetes to cut down cocoa pods and open them, clear brush, apply pesticides and herbicides with no protective gear or instruction, and carry heavy loads. All of this dangerous work is classified as the Worst Forms of Child Labor by ILO Convention No. 182 and is illegal in every country in the world for children to perform. All of the children were harvesting cocoa for one of the defendant multinational cocoa companies, and they worked as slaves for years until they were finally able to escape.      

The The TVPRA was originally enacted as a criminal statute to prohibit trafficking and forced labor, and it was primarily targeting sex-trafficking. It has since been amended several times and now has parallel civil provisions that allow victims of trafficking or forced labor to file a claim for damages and injunctive relief. As a group of Members of Congress recently asserted in an amicus brief filed in the Supreme Court in IRAdvocates’ Alien Tort Statute case against Nestle and Cargill, the TVPRA is tailor made for supply chain cases.

Based on 18 U.S.C. §§ 1589 (a) and 1595, there are four clear elements to a TVPRA claim:

1) A person or company must “participate in a “venture”

The first element of § 1589(b)—“participation in a venture”—raises the most novel legal question. “Venture” is not defined in § 1589 (a).  One method of interpretation is to simply look to the ordinary definition, which would suggest “venture” refers to any risk-bearing activity.  Another option is to look to § 1591(c)(3), which defines “venture” in the criminal child sex-trafficking context as “any association in fact.” In this case, the defendant companies have been working together, since at least 2001 when they came together to promote their “voluntary” initiative, the Harkin Engle Protocol, which, in reality, was a scheme to allow them to continue suing child slaves. The companies also jointly work together within the Washington, D.C.-based World Cocoa Foundation (WCF), which, among other things, coordinates the companies’ strategies for addressing the issue of child labor. This should be more than sufficient to establish a “venture.” 

2) The companies “knowingly benefit from” their participation in the venture. 

There should be no question that the companies have spent millions of dollars on lawyers, lobbyists, and public relations firms, rather than simply end their reliance on child slaves, because they are realizing a tremendous profit from a steady supply of cheap cocoa harvested by child slaves.

3) The cocoa venture utilizes trafficked or forced labor as defined by § 1589(a). 

Based on the terms of the statute, the cocoa Defendants used “force, threats of force, physical restraint, or threats of physical restraint” to require the Plaintiffs to work without compensation and perform labor that is well within the definition of ILO Convention 182 for the Worst Forms of Child Labor. There was also a “scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.”

The testimony of the eight former slaves as expressed in the Complaint will easily satisfy this element.   

4) The Defendant companies knew or recklessly disregarded that the venture was using forced or trafficked child labor. 

This case is unusual in that when the companies signed the Harkin Engle Protocol in 2001, the explicitly admitted that their cocoa supply chains included child labor engaged in the Worst Forms of Child Labor as defined by ILO Convention No. 182. They have also been absolutely inundated with news reports, complaints from NGOs, including IRAdvocates, that many of the child laborers were victims of forced labor or trafficking schemes. The U.S. Department of Labor has regularly funded studies documenting the incidence of child labor in the cocoa sector, with the last study released in October 2020 by the University of Chicago finding that 1.56 million children are today harvesting cocoa in Cote D’Ivoire and Ghana, with 95% of those performing hazardous work.