On June 24, 2021, Corporate Accountability Lab (CAL) and International Rights Advocates (IRAdvocates) submitted new evidence of forced child labor and trafficking in the Ivorian cocoa sector to Customs and Border Protection (CBP) under Section 307 of the Tariff Act. This evidence was submitted as a supplement to a 307 petition we filed almost a year and a half ago, in February 2020. In both petitions we request that CBP issue a Withhold Release Order (WRO) to stop the importation of all cocoa and chocolate produced with forced child labor from Cote d’Ivoire.
For over two decades, multinational cocoa and chocolate companies like Nestlé, Cargill, and Mars have promised to end forced child labor and child labor in their cocoa supply chains. Yet these companies continue to profit off of illegal forms of labor and knowingly buy cocoa tainted by forced child labor.
CBP has failed to take action since we filed our petition in February 2019. At the same time, the US Supreme Court held just last week that Nestlé USA and Cargill are not liable for the forced child labor they know and admit exists in their supply chains. Although Nestlé USA and Cargill may not civilly liable for using forced child labor in their supply chains, CBP still has the power to issue a WRO and prohibit the importation of their cocoa and chocolate. While the courts have failed to hold multinationals accountable for transnational human rights abuses, as in the Nestlé decision, CBP is uniquely situated to address these harms by excluding products produced with forced labor from entering the United States.
This blog post begins with a short overview of Section 307 of the Tariff Act. It then discusses the evidence submitted to CBP in the petition, including evidence of forced child labor, trafficking routes, government corruption, and information on the impact of COVID-19 pandemic on cocoa farmers and their families.
Section 307 of the Tariff Act
Under Section 307 of the Tariff Act of 1930, it is illegal to import goods “mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor.” Under 19 C.F.R.§ 12.42 (e), if the CBP Commissioner finds that “information available reasonably but not conclusively indicates that merchandise … is being, or is likely to be, imported” into the US, s/he can issue a WRO for those goods. A WRO will stop the goods at the border where there is reasonable belief that such goods were manufactured at least in part with forced labor.
This is a powerful statute for two reasons. First, it provides for strict liability, including in industries like the cocoa industry in which companies have known that forced child labor exists in their supply chains for over twenty years. Under Section 307, it doesn’t matter which party in the supply chain directly used forced labor, only that forced labor existed. Second, Section 307 threatens companies’ economic model – importing cheap goods into the US to make a profit. If CBP issues a WRO against cocoa or chocolate companies, those companies would no longer be able to sell their goods on the US market.
The Petitions
On Valentine’s Day of 2020, we filed a petition in which we requested that CBP provide companies 180 days to trace their supply chains to the farms from which they source, publicly report on independent monitoring and certifications, and implement a grievance mechanism in line with the UN Guiding Principles on Business and Human Rights. This would essentially give companies six months to carry out many of the changes they’ve been saying they would make since signing the Harkin-Engel Protocol in 2001.
The current petition goes one step further. While we submit that there is ample evidence for CBP to issue a WRO against these companies, in the interests of minimizing disruption to the industry, we request that the companies be provided the opportunity to take the following remedial steps toward the ultimate goal of ending forced child labor and building a sustainable cocoa industry:
Grant cocoa and chocolate companies and importers 180 days to publicly release information on their cocoa supply chains down to the farm level. The lack of transparency in supply chains provides cover for companies that benefit from forced labor, and makes it difficult for the civil society organizations, journalists, and investigators to trace particular instances of forced labor to particular importers.
Require that companies pay the full Living Income Differential (LID) immediately, and move toward the Living Income price over the next 18 months. The Voice Network has calculated the current Living Income farmgate price to be $3,166 USD per metric ton of cocoa produced, a significant increase over the current farmgate price of approximately $1,224.70 per ton. Extreme poverty forces farmers to rely on illegal forms of labor to survive, and sometimes just to pay off the prior season’s debts. Chocolate companies have purchased cocoa at or below the cost of production for decades. Until farmers can afford to produce cocoa legally and support their families, there will be a market for trafficked children who work for free.
Require that companies establish long-term contracts with cooperatives and farmers in Côte d’Ivoire over the next 18 months to ensure economic stability. Farmers bear the burden of market volatility, whether driven by commodity prices or by changes in demand. This generates economic precarity and indebtedness, which are both drivers of forced labor. Long-term contracts distribute risk to supply chain actors who are better situated to absorb it, resulting in greater stability across the supply chain.
We hope that CBP heeds our calls and stops cocoa and chocolate products produced with forced child labor from entering the US.
New Evidence
Over the past year, we have collected new evidence of forced child labor. This new information includes evidence of forced child labor, trafficking routes used to send children to cocoa farms, government corruption, as well as information on the impact of COVID-19 pandemic on cocoa farmers and their families.
Trafficking
Trafficking of vulnerable children from Mali and Burkina Faso into forced labor conditions in the Ivorian cocoa sector has been documented and known to local authorities for years. During a trip to Cote d’Ivoire’s northern border region, we found evidence of illegal trafficking across closed borders and of police knowledge and facilitation of illegal child travel suspected to constitute trafficking.
Our investigators documented evidence of trafficking patterns from the northern border region down to cocoa-growing regions in Cote d’Ivoire. Even though the borders have been closed due to COVID-19, children continue to be trafficked across the border into Cote d’Ivoire, generally at night. Once across the border, children continued to be trafficked to the cocoa-growing regions on regular bus routes. Buses run from the border region through some of the main cocoa-growing regions to Abidjan. At each stop, children get off the bus and head to nearby cities or towns.
While the Ivorian government has implemented checkpoints on the bus routes to try to stop trafficking, corruption is rife. Ivorian police are aware of ongoing child trafficking, but in some cases we identified, they appeared to facilitate it and profit from it. Foreign citizens traveling in Côte d’Ivoire are required to produce an identity card or birth certificate when requested by the police. Investigators were told that non-Ivorian passengers are required to pay an additional “fee” to the bus company to cover bribes at checkpoints along the bus route if they cannot produce the required documents. Prior to reaching the checkpoints, the bus drivers collect non-Ivorian passengers’ identity documents, if any, to present to police and gendarmerie officers. Once on the bus, the police officer asks that all passengers whose money had been collected raise their hands. The police officer then compares the number of people raising their hands with the amount of money collected, takes the corresponding amount of money, and exits the bus without performing other identity checks. This form of corruption allows the clandestine trafficking of children to cocoa-growing regions and cocoa farms in Côte d’Ivoire to continue.
Forced Child Labor
It has been estimated that there are at least 28,900 forced laborers in the cocoa industry in Cote D’Ivoire and Ghana, including 15,600 children who are being forced to work on cocoa farms by people who are not their parents. Because it is notoriously difficult to document forced labor in the cocoa industry, the real number is probably much higher. Even cocoa and chocolate companies have acknowledged that the real number of forced child laborers is unknown. As recently as 2019, Nestlé admitted that the low number of forced labor cases that it has identified on its own farms “does not mean that forced labor does not exist—it may be that we are not good enough at identifying it.” Additionally, reports from the Fair Labor Association (FLA) on Nestlé’s supply chain found evidence of forced child labor as recently as 2017.
Despite these challenges, our investigators found evidence of forced child labor. They spoke with numerous children and documented indicators of forced labor, such as isolation, abuse of vulnerability, and abusive working conditions. Many children were seen holding and using machetes, a clear sign that they are engaged in hazardous child labor and the worst forms of child labor. Other children were seen carrying very heavy loads. These children often look to be about eleven or twelve years old, with their bodies bending under the weight of cocoa pods they are carrying.
The COVID-19 Pandemic
The COVID-19 pandemic hurt farmer income and likely increased farmer indebtedness. The pandemic hit Côte d’Ivoire in mid-March 2020, as the smaller of the two cocoa growing seasons was beginning. With the borders closed, migrant workers who usually travel to Côte d’Ivoire for the season were unable to enter the country, farmers were often unable to transport their cocoa to the ports in Abidjan or San Pedro, and farmers were often unable to receive financing for inputs such as fertilizers. As a result, cocoa farmers generally did not produce as much cocoa during the 2020 small growing season as they had in the previous year. Because the price of cocoa remained the same – at 825 FCFA – many cocoa farmers earned far less income during 2020’s small growing season than in previous years.
The decreased production and difficulties in selling and transporting cocoa meant that many farmers reported being in debt. As a result, many reportedly took out loans to maintain their farms, feed their families, or pay other bills. These loans were generally with someone in the village, the cooperative, or a pisteur. During a period in which farmers were already earning less than in other years, cocoa farmers also reported that even banks, which farmers would not typically borrow from, did not have enough liquidity to make loans, leaving farmers with even less access to loans. At the same time, the community-support system that traditionally stepped in to support community members in times of need was not functioning because people were scared of catching COVID-19.
Why This Matters
Cote d’Ivoire is the largest producer of cocoa in the world, yet the majority of cocoa farmers live in poverty, a direct result of the low price companies pay for cocoa. As a result, cocoa farmers are often unable to pay workers and instead rely on their families, including their young children, or on trafficked children working in conditions of forced labor. Companies like Nestlé, Mars, Hershey, Barry Callebaut, World’s Finest Chocolate, Inc., Blommer Chocolate Co., Cargill, Mondelēz, and Olam know that their cocoa is produced by forced child labor, yet they continue to support this system of exploitation. We hope that CBP will take the appropriate steps to incentivize companies to clean up their supply chains and stop sourcing cocoa produced with forced child labor.
Allie Brudney is a Staff Attorney at Corporate Accountability Lab.
