The US Supreme Court yesterday rejected Nestlé’s bid to have an earlier high court ruling - allowing the case to proceed - reheard in the top court.
It denied Nestlé’s ‘writ of certiorari’ that would have meant the Supreme Court would review the high court decision.
The lawsuit brought by three former Malian child slaves in 2005, alleges the Swiss chocolate giant, ADM and Cargill were complicit in their forced work on cocoa farms in West Africa. Claims all companies firmly dispute.
Supreme Court may hear case eventually, says Nestlé
Edie Burge, corporate and brand affairs at Nestlé USA, told ConfectioneryNews the Supreme Court's ruling was "not at all a decision on the merits" and added that the court may end up hearing the case anyway.
"The announcement simply means that lower courts will have to engage in further proceedings first," she said. "We look forward to those proceedings in the lower courts, and believe very strongly that the law and facts are on our side."
She added that the use of child labor is unacceptable and goes against everything Nestle stands for. "Nestle is committed to following and respecting all international laws and is dedicated to the goal of eradicating child labor from our cocoa supply chain," she said.
In earlier court documents, Nestlé, Cargill and ADM contended the case should be thrown as they allege companies cannot aid and abet crimes outside the US under the Alien Tort Statute. The firms also claim they lack the mens rea (the mental element or purpose) of the crime and say simply knowing child slavery exists on cocoa farms is insufficient.
Senior circuit judge DW Nelson said in an earlier ruling in September 2014 that the companies allegdly supported the use of child slavery "driven by the goal to reduce costs in any way possible...".
The scale of child labor
In July last year, Tulane University reported a 21% rise in hazardous child labor in Côte D’Ivoire and Ghana between the 2008/09 and 2013/14 harvest seasons.
It found 2.03m children working in hazardous cocoa-related activity in these countries such as carrying heavy loads, being exposed to agro-chemicals, using sharp tools, or long working hours or during the night.
Nestlé is facing a separate class action lawsuit brought last year by consumer rights law firm Hagens Berman that alleges Nestlé - as well as Mars and Hershey - have violated Californian law by failing to disclose its suppliers in Côte d’Ivoire rely on child laborers to procure cocoa. Nestlé and Hershey yesterday filed motion to dismiss the case, following a similar move by Mars earlier.
[The cases are: Hodsdon v. Mars, Inc. et al - Case No.: 3:15-cv-04450 / McCoy v. Nestle USA, Inc et al - Case No.: 3:15-cv-04451 / Dana v. The Hershey Company et al - Case No.: 3:15-cv-04453]
More lawsuits to come?
Fernando Morales-de la Cruz, founder of Cafe for Change, - which is advocating a shared value system paid for by consumers under its Cacao For Change initiative - expects further lawsuits.
“This will be one of many companies that will face similar lawsuits,” he said. “You can’t just buy something and not worry where it comes from.”
He argued that while many children in West African cocoa growing communities suffered child malnourishment and high infant mortality rates, the industry could face false advertising claims when making ethical claims on chocolate products.
He added that certification organizations may also be hit.
Asked whether such class action lawsuits were opportunistic, Morales-de la Cruz said: “It will change the world. It will make journalists write the truth about what’s happening in the industry.”
He said that reporters such as CNN’s Richard Quest – who hosted the documentary ‘Cocoa-nomics’ for the network – had the stage to reach large audiences and influence public opinion.
“When these suits take place, consumers start thinking something is wrong,” said the Café for Change founder.
“The industry believes in shared value where the consumer is [not where the raw materials come from] – because these are the people nobody sees.”
[John Doe I, et al v. Nestle, USA, et al - case no: 10-56739 ]