Can a US Court Hold Nestlé Responsible for Child Slavery in Africa?

June 2, 2015 Updated: October 8, 2018

A legal case involving major food companies Nestlé, ADM (Archer Daniels Midland), and Cargill could determine whether corporations can be sued in U.S. courts for violating international law on foreign soil.

After years of legal battles, the case has now reached the highest court in the country. The three companies are preparing to petition the case to the U.S. Supreme Court, which would make the final ruling on the legal question.

In 2005, three Malian nationals who were forced into working on cocoa plantations in the Ivory Coast filed a class-action lawsuit in a federal court in California. They claimed that the three corporations—through purchasing cocoa harvested by child laborers—”aided and abetted” slavery, child labor, and torture.

According to court documents, the three plaintiffs—identified only as John Does I, II, and III—worked without pay for up to 14 hours a day, 6 days a week. They were only fed scraps of food, and were frequently beaten and whipped by the plantation overseers.

The West African nation is the world’s biggest producer of cocoa, providing about 40 percent of the global cocoa supply.

Aged 12 to 14 years old at the time, they witnessed other children tortured when they tried to escape the plantations.

Though Nestlé, ADM, and Cargill do not own any cocoa plantations in the Ivory Coast, they have exclusive buyer-seller relationships with Ivorian farms—making them the primary importers of the country’s cocoa harvest into the United States, according to court documents.

The West African nation is the world’s biggest producer of cocoa, providing about 40 percent of the global cocoa supply.

The Malian plaintiffs alleged that the companies not only bought Ivorian cocoa with full knowledge that it was being harvested from child labor, but also provided cocoa farmers with money, supplies, and training to assist them in growing the crop.

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The corporations also successfully halted the passage of a 2001 congressional bill that would have created a consumer label on cocoa products certifying that cocoa ingredients were not grown or harvested using child labor. In response to heavy lobbying, Congress instead adopted a voluntary agreement with corporations to work toward ending child labor.

But the enslavement of children has largely continued unabated.

In 2010, the California court dismissed the lawsuit, ruling that corporations cannot be sued under the Alien Tort Statute (ATS)—a 1789 law that states non-U.S.-citizens can file lawsuits in American courts for violations of international law. The ATS does not specify whether or not corporations can be sued.

The Malians then brought their case to a federal appeals court, which reversed the dismissal last September, allowing the case to move forward. The judges ruled that the corporations can be held liable under the ATS because the defendants “acted with the purpose to support child slavery.”

The corporations had control of the cocoa market in the Ivory Coast, but did not leverage their position to stop child slavery; instead, they gave support to Ivorian farmers and rallied Congress to end a bill that would curb child slavery, the judges said in their court opinion.

Ultimately, “The allegations suggest that a myopic focus on profit over human welfare drove the defendants to act with the purpose of obtaining the cheapest cocoa possible, even if it meant facilitating child slavery,” the judges wrote.

But Nestlé, ADM, and Cargill are not giving up the fight. In May, they requested the federal appeals court to withhold its court order until they petition the Supreme Court to take on the case.

The appeals court granted their request. Now, it’s up to the Supreme Court to decide whether they want to hear the case.

If the court rejects it, the corporations will face a lawsuit, joining chocolate maker Hershey as the latest to get into legal trouble for cocoa harvested by child laborers.

If the court accepts, it could decide a significant case on corporate liability. Previously, the Supreme Court decided in the case, Kiobel v. Royal Dutch Petroleum Co. that the ATS does not apply to actions that occurred outside the United States. However, the court did not make a definitive ruling on whether the ATS applies to lawsuits against corporations.

A Supreme Court decision on this latest lawsuit could answer that question once and for all.

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