Nestle and Child Labour

Doe v Nestle et al, US District Court, Central District of California

Nestle are in legal hot water again. Nestl, along with Archer-Daniels-Midland and
Cargill (the defendants) are being sued by former child slaves for their alleged use as
slaves in the harvest of cocoa in Cote dIvoire. The three unnamed plaintiffs allege
that the defendants violated the Alien Tort Claims Act, Torture Victim Protection Act,
US Constitution and California state law by aiding, abetting or failing to prevent the
horrendous treatment of them as child slaves by providing assistance to Ivorian
farmers.
Background & Case Timeline
This particular case is not a recent one and comes with a back catalogue of previous
rulings that began in July 2005, when the three plaintiffs, who are originally from
Mali, sued the defendants for using them to harvest cocoa. The boys alleged that
they were trafficked and not only forced to work without pay 14 hours a day but also
suffered repeated physical abuse including being beaten and whipped.

August 2005 Nestl filed a motion to force the disclosure of the names of the
former child slave plaintiffs and a motion to dismiss the case.
July 2006 the court ordered further briefings to be filed on various issues
related to aiding and abetting standards.
September 2010 the case was dismissed and could not be brought under the
Alien Tort Claims Act due to existing authorities not demonstrating that
corporate liability was sufficiently well established and universal to satisfy a
claim under the Alien Tort Claims Act. The plaintiffs appealed the dismissal.
December 2013 the 2010 ruling was overturned and the plaintiffs were
allowed to refile the lawsuit.
September 2014 the federal appeals court replaced its December 2013
opinion with an expanded one reversing and vacating the lower court's
dismissal of the case.
September 2015 the defendants petitioned the Supreme Court to throw out
the federal appeals courts ruling and want it to decide if companies are
subject to liability under the Alien Tort Claims Act.

Tel: +44 (0)7714979936 | Email: colleen.theron@clt-envirolaw.com | clt-envirolaw.com

Company registration number: 06678818 | VAT Registration number: 995458062 | Registered office: Fieldview,
21 Staples Barn, Henfield, West Sussex, BN5 9PP
and Confidential Information of CLT envirolaw, 2016. All rights reserved.

Most Recent Developments

At the beginning of this year, Nestle sought to have the case of Nestle Inc. v. John
Doe, U.S. Supreme Court, No. 15-349 thrown out, yet failed in this bid.
The Supreme Court upheld the ruling of the lower court of September 2014 and has
allowed the plaintiffs the opportunity to amend their case to see if they could meet
the higher threshold that had been set out in the earlier case of Kiobel http://cltenvirolaw.com/legal-insight-the-latest-developments-on-corporate-liability-underthe-us-alien-tort-statute/
Part of this case has focused on the interpretation by lower courts of a 2013
judgment in Kiobel v. Royal Dutch Petroleum Co. which stated that the presumption
in Alien Tort claims are only to cover violations of international law occurring in the
United States. Violations elsewhere, Chief Justice John Roberts wrote, must "touch
and concern" U.S. territory "with sufficient force to displace the presumption."
The opinion in 2014 sets out the reasons for allowing the plaintiffs to amend their
complaint to show the connection their claims have to the United States. The court
found that the plaintiffs have standing to bring their Alien Tort case because of the
universal prohibition against slavery.
Lessons to be learned
Nestle are not in unfamiliar territory having recently fought off another case of
alleged slavery in their supply chains http://clt-envirolaw.com/barber-v-nestle/ No
stone unturned might appear to be slightly unrealistic for a business when
investigating their supply chains, but in fact there are some key principles that we
suggest business should embrace:
1. Be upfront. If you find child labour or any form of modern slavery in your
supply chains, then acknowledge it. The increasing pressure for companies
to disclose has been given a legal footing due to s.54 of the Modern Slavery
Act 2015. (organisations who need to comply), see http://cltenvirolaw.com/?guide=10-steps-organizations-should-take-to-startpreparing-to-comply-with-the-uk-modern-slavery-act-msa)
Increasing public awareness is also key and the press and social media can be friend
or foe in this fight. Choosing to be honest along with a plan of action speaks
volumes.
2. Map your supply chains. It is a phrase that is increasingly being used. If you
do not know the genetic makeup of your supply chain, then how can a

Tel: +44 (0)7714979936 | Email: colleen.theron@clt-envirolaw.com | clt-envirolaw.com

Company registration number: 06678818 | VAT Registration number: 995458062 | Registered office: Fieldview,
21 Staples Barn, Henfield, West Sussex, BN5 9PP
and Confidential Information of CLT envirolaw, 2016. All rights reserved.

business be sure of what is going on? http://cltenvirolaw.com/business-andhuman-rights-2/

3. Be proactive. Companies need to get moving and quickly. The Ivory Coast is
notorious for the use of child labour in cocoa farming. The Guardian recently
reported that Children younger than 15 continue to work at cocoa farms
connected to Nestl, more than a decade after the food company promised
to end the use of child labour in its supply chain. Well-known high risk areas
such as the Ivory Coast should sound alarm bells ringing for companies whose
supply chains extend to such areas. What is the point in mapping supply
chains if there is no follow up and actual action taken in tackling child labour
and modern day slavery?
Nestle commissioned a report by the Fair Labor Association (FLA) who visited 260
farms used by the company in Ivory Coast from September to December 2014. The
researchers found 56 workers under the age of 18, of which 27 were under 15. At
one farm in the Divo district of the country, the FLA found evidence of forced labour
with a young worker not receiving any salary for a years work at a farm.
Waiting game
For now, it is a waiting game. The 3 plaintiffs have time to adjust their case and
should they do so, only then will they be able to proceed (this has recently been
made so an additional update will follow).
In the meantime, there are very clear lessons to be learnt by all companies (not just
Nestle). Are they willing to learn is the key question? Going on Nestls past record
(and those of many other well-known brands) you could be cynical and say no.
Cynicism is not unfounded as the issue of slavery and human rights violations have
dogged Nestle for decades yet they, along with Cargill in this matter, still appear to
be dragging their feet. Fortunately, the tide is turning and companies cannot sit by
and continue to reap the profits from modern day slavery without legal
ramifications.
Case timeline details from http://business-humanrights.org/en/nestl%C3%A9-cargillarcher-daniels-midland-lawsuit-re-c%C3%B4te-divoire

Tel: +44 (0)7714979936 | Email: colleen.theron@clt-envirolaw.com | clt-envirolaw.com

Company registration number: 06678818 | VAT Registration number: 995458062 | Registered office: Fieldview,
21 Staples Barn, Henfield, West Sussex, BN5 9PP
and Confidential Information of CLT envirolaw, 2016. All rights reserved.