VIA CBP PORTAL
Mr. Mark A. Morgan
Acting Commissioner
U.S. Custom and Border Protection
U.S. Department of Homeland Security
1300 Pennsylvania Avenue, N.W.
Washington, D.C. 20229
Re: Petition to exclude cocoa produced in Cote D’Ivoire and imported to the U.S. by Nestle,
Mars, Hershey, Barry Callebaut, World’s Finest Chocolate, Inc., Blommer Chocolate Co.,
Cargill, Mondelēz, and Olam unless and until within 180 days any specific “importer
establishes by satisfactory evidence that [its] merchandise was not ... manufactured in any
part with” forced or trafficked child labor. 19 C.F.R. § 12.42 (g)(emphasis added).
Dear Commissioner Morgan,
International Rights Advocates (IRAdvocates) and Corporate Accountability Lab (CAL)
hereby submit this Petition under section 307 of the Trade Act of 1930, 19 U.S.C. § 1307, regarding
the importation of cocoa from Cote D’Ivoire (CDI) by Nestlé, S.A. and Nestlé, U.S.A. (together
referred to as “Nestlé”), Cargill, Incorporated (“Cargill”), Barry Callebaut AG, Barry Callebaut USA
LLC (together as “Barry Callebaut ”), Mars, Incorporated and Mars Wrigley Confectionary (together
as “Mars”), Olam International and Olam Americas, Inc. (together as “Olam”), the Hershey
Company (“Hershey”), World’s Finest Chocolate, Inc., and Blommer Chocolate Co.1

I. Introduction and Summary of Position
IRAdvocates and CAL hereby jointly request that, based on 19 C.F.R., Chpt. 1, § 12.42 (b)(1997), U.S. Customs and Border Protection (CBP) initiate an enforcement action under section 307
of the Trade Act of 1930, 19 U.S.C. § 1307, regarding the importation of cocoa from CDI by the
1. The rationale for the selection of these specific Cocoa Importers is that the cocoa companies that signed the HarkinEngel Protocol in 2001, discussed below, made a much-publicized commitment to end their use of child labor withrespect to cocoa brought into the U.S. Those companies, Nestle, Mars, Hershey, Barry Callebaut, World’s Finest
Chocolate, Inc., and Blommer Chocolate Co., expressly admitted in 2001 that they were importing CDI cocoa into the
U.S. and that there was “forced child labor” in their cocoa supply chains. Since then, they have repeatedly admitted that
there is still such forced child labor in their supply chains. In addition, Cargill, Mondelēz, and Olam all import significant
amounts of CDI cocoa to the U.S. and have joined the Protocol signers within the WCF in leading the efforts to delay
any meaningful measures to stop utilizing child labor in cocoa harvesting and production. Petitioners also believe thatthese companies form an overwhelming critical mass of cocoa producers and importers operating in CDI such that
requiring them to finally comply with their 2001 commitment to end child labor will force the entire industry to change.

Cocoa Importers. Our understanding is that CBP has an open investigation of the cocoa sector in
CDI. This Petition provides additional information on the extent of forced and trafficked child labor
harvesting cocoa in CDI and, we believe, constitutes overwhelming evidence that now requires aconcrete enforcement action. Under the controlling regulations, “[a]ny person ... who has reason tobelieve” that imported products are made with prohibited forced or indentured child labor shallprovide to the Commissioner of Customs “(1) a full statement of the reasons for the belief, (2) adetailed description or sample of the merchandise, and (3) all pertinent facts obtainable as to the
production of the merchandise abroad.” 19 C.F.R. § 12.42 (b).
We submit that information we and others have already provided to CBP and that CBP itself
has gathered constitutes an overwhelming basis for any person to have a “reason to believe”2 thatcocoa imported from CDI is produced “wholly or in part”3 with forced or trafficked child labor.
The additional evidence provided herein compels the finding that there is a strong “reason [for CBP]
to believe” that all cocoa imported to the U.S. that is produced in CDI is produced “wholly or inpart” with forced or trafficked child labor.
Under normal procedures, following our prima facie showing that CDI cocoa is producedwith illegal child labor, the Commissioner is required to conduct an investigation as per 19 C.F.R. §12.42(d). However, as there is an ongoing investigation, we urge that there is now, with theadditional information in this Petition, more than sufficient evidence for the Commissioner to takethe next step required by 19 C.F.R. § 12.42 (e), which provides in pertinent part:If the Commissioner of CBP finds at any time that information available reasonably but
not conclusively indicates that merchandise within the purview of section 307 is being, or is
likely to be, imported, he will promptly advise all port directors accordingly and the port
directors shall thereupon withhold the release of any such merchandise...4
Once the Commissioner makes a finding as per 19 C.F.R. § 12.42 (f), then all merchandise in the classis an “importation prohibited by section 307 ... unless the importer establishes by satisfactoryevidence that the merchandise was not ... manufactured in any part with the use of a class oflabor specified in the finding.”5
We demonstrate below that the Cocoa Importers have been knowingly benefiting from theuse of forced or trafficked child labor for at least 20 years, and during this time have repeatedly madeempty and false promises to stop relying on child labor. Their failure to take real steps requires action
to ban the importation of their cocoa from CDI. However, we caution that an abrupt and immediate
exclusion of this scale would cause collateral harm to farmers, farmworkers, and the CDI economy.
We do not want that. Thus, in the interests of avoiding economic upheaval in CDI, we urge that theregulations are sufficiently flexible on timing and would permit CBP to issue the following order under
19 C.F.R. § 12.42 (g):Based on the overwhelming evidence of ongoing and pervasive forced and trafficked childlabor in the production of cocoa in CDI, CBP hereby orders that Cocoa Importers from CDI
2 19 C.F.R. § 12.42 (b).

3 § 307 of the Tariff Act of 1930, 19 U.S.C. § 1307 (“Section 307”).
4 19 C.F.R. § 12.42 (e)(emphasis added).
5 Id.

2

Nestle, Mars, Hershey, Barry Callebaut, World’s Finest Chocolate, Inc., Blommer Chocolate
Co., Cargill, Mondelēz, and Olam will have 180 days6 from the date of this Order to produce“satisfactory evidence that [any shipment of cocoa from CDI to the US] was not ...
manufactured in any part with the use of a class of labor specified in the finding.” 19
C.F.R. § 12.42 (g)(emphasis added). This evidence shall include a transparent map of
companies’ supply chains down to the farm level, public reports on how each company isutilizing an acceptable independent third-party monitoring and certification system to
implement its own Code of Conduct banning illegal child labor and overseeing its SupplierCodes of Conduct related to the issue of child and forced labor, and an externally-run
grievance mechanism related to the company’s commitments on cocoa that is in line with the
UN Guiding Principles on Business and Human Rights and is in place as of the date produced.
Any shipment of cocoa from CDI that does not meet this standard will be subject to a
Withhold Release Order (WRO) and held at the port of entry.
This is a reasonable and feasible starting point to identify and stop the use of forced andtrafficked child labor by the Cocoa Importers. A transparent supply chain will enable independent andexternal audits, and will not allow companies to continue using child labor while claiming to beworking to stop themselves from this abhorrent conduct.
A grievance mechanism should allow independent third parties to have access to the cocoa
farms, provide a safe space for victims to report cases of forced labor, and provide a process to manage
complaints related to the companies’ adherence to their commitments on child and forced labor. Thisgrievance mechanism must be created specifically for the cocoa sector, in collaboration with potential
users. It must be easily accessible and safe for potential users and must meet, at the very minimum,
the Effectiveness Criteria outlined in UNGP 31.7
180 days is a more than reasonable timeframe to implement these changes. Most major cocoa
and chocolate companies have committed to investing millions of dollars this year to expand
sustainability and traceability in CDI. There are ample resources for companies on how to conduct
proper due diligence in supply chains,8 and many of these companies have taken steps towards this inother industries.9 There is a significant civil society presence with the knowledge and expertise to
6 Petitioners suggest 180 days as a reasonable time given that the companies concerned have been on notice for decadesthat they must stop their illegal use of child labor in their cocoa production. Given the long history of non-compliancewith their various “voluntary” programs, the importers must be given a firm deadline to comply.
7 Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy”
Framework, United Nations Human Rights Office of the High Commissioner, 2011,https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf.
8 See, e.g., OECD, OECD Due Diligence Guidance for Responsible Business Conduct (2018); Working Group on
Business and Human Rights, Companion note II to the Working Group’s 2018 report to the General Assembly(A/73/163), https://www.ohchr.org/Documents/Issues/Business/Session18/CompanionNote2DiligenceReport.pdf;
United Nations Human Rights Office of the High Commissioner, The Corporate Responsibility to Respect Human
Rights: AN Interpretive Guide (2012), https://www.ohchr.org/Documents/Publications/HR.PUB.12.2_En.pdf;
International Cocoa Initiative, Human Rights Due Diligence in Supply Chains: A review of legislation and guidelines through the lensof the UN Guiding Principles on Business and Human Rights, ICI REVIEW (October 2019), https://cocoainitiative.org/wpcontent/uploads/2019/10/HRDD_report_ICI_Final_w_image.pdf.
9 See Cargill, Managing Grievances, https://www.cargill.com/sustainability/palm-oil/managing-grievances; Cargill,
Grievance Process for Cargill’s Policy on Sustainable Palm Oil (“Palm Grievance Process”), updated June 2019,https://www.cargill.com/doc/1432135747848/cargill-palm-grievance-procedure.pdf. See also Nestlé, Grievancemechanisms and Remediation, https://www.nestle.com/csv/impact/respecting-human-rights/grievance-mechanisms;3

ensure that these programs are implemented properly.10 Cocoa Importers have the resources and theaccess to expertise. They simply need to have the will to actually take these steps.

II. Background of U.S. Cocoa Importers’ Failure to Stop Benefitting from Child Labor in
Harvesting Cocoa from CDI.
A. The Cocoa Industry in CDI
CDI is the world’s top cocoa producer, producing approximately 32% of the world’s
cocoa. Cocoa is vital to CDI’s economy and accounts for roughly half of its export economy.12 The
industry generates annual exports worth approximately US $5B, with cocoa beans ($3.79B), andcocoa paste ($1.04B) in the country’s top three biggest export items.13 Globally, between five and six
million farmers depend on cocoa farming. Two million of those farmers are located in Ghana andCôte d’Ivoire.
11

Although CDI is the largest global producer of cocoa, Ivorian cocoa farmers are the lowest
paid. The average daily income for a cocoa farmer in CDI is less than what a consumer pays for asingle chocolate bar. This creates labor-related risks to children, hired labor (especially migrantlabor), and women. These many human rights risks endemic to the cocoa sector are driven in largepart by the low price farmers receive for their cocoa, and the severe imbalances in the value chain.
By far the most documented abuse in the cocoa industry is the use of child labor, both through local
family and social networks and through national and international child trafficking. Recent research
estimates that about 2.1 million children work in the cocoa fields of CDI and Ghana.14 According toa 2018 study, about 891,5000 children between the ages of 10 and 17 worked in the cocoa industry
between October 2016 and November 2017.15
It has been estimated that at least 16,000 children in West Africa are being forced to work on
cocoa farms by people who are not their parents,16 and that is probably a very low estimate.17 Many

Nestlé, Tackling labor rights issues: Our palm oil action plan, https://www.nestle.com/stories/nestle-launched-actionplan-palm-oil.
10 We would be happy to provide recommendations.
11 Miklos Mattyasovsky, Top 10 Cocoa Producing Countries, WORLD ATLAS, Apr. 25, 2017,https://www.worldatlas.com/articles/top-10-cocoa-producing-countries.html.
12 Alexander Simones, Cote d’Ivoire, THE OBSERVATORY OF ECONOMIC COMPLEXITY, Apr. 11, 2018,https://atlas.media.mit.edu/en/profile/country/civ/.
13 Id.
14 Antonie Fountain and Friedel Hütz-Adams, COCOA BAROMETER (2018), at 3, https://www.voicenetwork.eu/wpcontent/uploads/2019/07/2018-Cocoa-Barometer.pdf.
15 BITTER SWEETS: PREVALENCE OF FORCED LABOUR & CHILD LABOUR IN THE COCOA SECTORS OF COTE D’IVOIRE &GHANA, Tulane University and the Walk Free Foundation, https://cocoainitiative.org/wpcontent/uploads/2018/10/Cocoa-Report_181004_V15-FNL_digital.pdf.
16 Peter Whoriskey and Rachel Siegel, Cocoa’s child laborers, WASH. POST, June 5, 2019,https://www.washingtonpost.com/graphics/2019/business/hershey-nestle-mars-chocolate-child-labor-west-africa/;
BITTER SWEETS, supra note 15, at 28, https://cocoainitiative.org/wp-content/uploads/2018/10/CocoaReport_181004_V15-FNL_digital.pdf.
17 ASSESSMENT OF FORCED LABOR RISK IN THE COCOA SECTOR OF COTE D’I VOIRE, Verite, Feb. 2019,https://www.verite.org/wp-content/uploads/2019/02/Verite-Report-Forced-Labor-in-Cocoa-in-CDI.pdf (“Given the4

of the children who are trafficked come from Mali and Burkina Faso. Children between the ages of
10 and 18 are often offered money or tangible goods to take the bus to work on cocoa farms in
CDI. 18 They may also have been promised education or were misled about the conditions of work
they were heading to.19 Children are also internally trafficked within Cote d’Ivoire, including fromthe north of the country to the south.20 These documented conditions in CDI are well within theInternational Labor Organization (“ILO”)’s indicators of “forced labor.”21
It can be difficult to learn if individual children have been trafficked. The issue of child laborin general is extremely sensitive in CDI, and people are hesitant to speak about it. They will often
deny that child labor exists, or will claim that all of the children working on a farm are family. CAL
heard this through multiple confidential conversations with various sources, and it was noted by theinvestigators, who stated that in every place visited, it appeared that people had prepared answers.
This has been identified by many others as well.22 Children themselves may be scared to speak, or
prohibited from doing so. A 2016 report by Ebode and Mondolez noted: “It was felt that children
were well aware of the sensitivities around talking about working on cocoa farms. In one
community, the focus group discussion was observed (and intervened upon) by a group of adults,
potentially making it difficult for children to express themselves openly.”23 The 2017 FLA audit
report for Olam stated that, “monitors observed a foreign worker visibly below the minimum age of
employment. He was forced by his employer (farmer) not to answer the monitor’s questions.”24
And yet, the Cocoa Importers systematically avoid discussions of trafficking or forced laborin their superficial analysis of “root causes” and they rarely appear in the companies’ claimed due
diligence efforts. The Mondolez report found “a general lack of prioritisation of and sufficientattention to these more egregious forms of child exploitation” in their stakeholder consultations.25
Despite almost 20 years of commitments, Nestle admits as recently as 2019 that the low number ofhidden nature of much human trafficking and forced labor, it is also possible that levels may be significantly higher
within isolated pockets in the sector.”)18 Whoriskey & Siegel, supra note 16.
19 Abou Traoré, Child labor on cocoa plantations: Trafficking, CENOZO, January 8, 2019, https://cenozo.org/en/articles/120travail-des-enfants-dans-les-plantations-de-cacao-le-trafic-a-la-peau-dure.
20 On file with CAL.
21 The ILO has identified eleven indicators of forced labor: abuse of vulnerability, deception, restriction of movement,
isolation, violence, intimidation and threats, retention of identity documents, withholding of wages, debt bondage,
abusive living and working conditions, and excessive overtime. ILO Indicators of Forced Labour, Int’l. Labor Office (2012).
22 See, e.g., Aarti Kapoor, Children at the Heart: Assessment of Child Labour and Child Slavery in Côte d’lvoire’s Cocoa Sector andRecommendations to Mondelēz International, Embode, 2016, at 15 (“If community members felt there were community-wide
negative consequences to reporting or sharing information about child labour, this inevitably pushes incidences further
underground.”); Oliver Neiburg, Fair Game: How Effective is Cocoa Certification?, CONFECTIONARY NEWS, Dec. 20, 2017,https://www.confectionerynews.com/Article/2017/12/20/Fair-trade-How-effective-is-cocoa-certification (NickWeatherill, Executive Director of the International Cocoa Initiative, highlighted that regarding sporadic audits ofcertified farms, “[i]t’s a model where, if child labor is found, then farmers risk to lose their certificates then of course thatthreat of punishment drives the issue underground.”); ASSESSMENT OF FORCED LABOR RISK IN THE COCOA SECTOR OF
COTE D’IVOIRE, supra note 17, at 46 (“Producers and cooperative officials interviewed during field research were highly
sensitized to the question of child labor and – likely in anticipated response to our perceived interest in the topic – werequick to note that children did not work on their farms and that they knew buyers did not want children involved.”)23 Kapoor, Children at the Heart, at 10.
24 Fair Labor Association, Independent External Monitoring of Olam’s Cocoa Supply Chain in Cote d’Ivoire: 2017, at 5,
https://www.fairlabor.org/sites/default/files/documents/reports/2017_olam_executive_summary_181203.pdf.
25 Kapoor, Children at the Heart, at 16.

5forced labor cases that it has identified “does not mean that forced labor does not exist - it may bethat we are not good enough at identifying it.”26
Despite the challenges, there has been clear documentation of trafficked and forced childlabor in CDI’s cocoa sector for years. There are numerous, highly credible public reports
documenting the pervasive and ongoing use of forced and trafficked child labor in harvesting andprocessing cocoa in CDI.27 The U.S. Department of Labor and U.S. State Department have bothclearly documented the trafficking of children and forced child labor in the CDI cocoa sector.28 The
Child Labor Cocoa Coordinating Group Annual Report also provides ample evidence of forcedchild labor in the cocoa industry.29 Additionally, reports from the Fair Labor Association on Nestlé’s
supply chain and reports on Olam’s supply chains also found evidence of forced child labor.30 Lastly,
civil society groups, academics,31 and news reports have also reported and documented such abuses
for years.32
The Cocoa Importers’ programs and ploys to avoid legal compliance is a master class inpublic relations. We outline below how despite being on notice for two decades of this risk and its
continued prevalence, these companies refuse to take the necessary steps to address the forced laborand trafficking that continues in their supply chains. This history demonstrates that voluntary natureof past and current measures has given companies little incentive to take the necessary steps toaddress this issue.

26 Tackling Child Labor, 2019 Report, Nestle Cocoa Plan, https://www.nestle.com/sites/default/files/2019-12/nestle-

tackling-child-labor-report-2019-en.pdf.
27 For a list of reports documenting the ongoing use of illegal child labor in the cocoa sector industry in CDI, see Exhibit
6.
28 See, e.g., U.S. DEP’T OF LABOR, B UREAU OF INTERNATIONAL L ABOR AFFAIRS, CHILD L ABOR AND FORCED L ABORREPORTS: COTE D’IVOIRE, https://www.dol.gov/agencies/ilab/resources/reports/child-labor/cote-divoire [hereinafter
CHILD LABOR AND FORCED LABOR REPORTS]; U.S. DEP’T OF LABOR, FINDINGS ON THE WORST FORMS OF CHILDLABOR: CÔTE D’IVOIRE (2018),
https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2018/Cote%20d%27lvoire.pdf; U.S. EMBASSY
IN COTE D’IVOIRE, COTE D’I VOIRE 2018 HUMAN RIGHTS REPORT (2018), https://ci.usembassy.gov/wpcontent/uploads/sites/29/Cote-dIvoire-HRR-2018-English.pdf.
29 See, e.g., U.S. DEP’T. LABOR, B UREAU OF INTERNATIONAL LABOR AFFAIRS, CHILD L ABOR IN THE PRODUCTION OF
COCOA, https://www.dol.gov/agencies/ilab/our-work/child-forced-labor-trafficking/child-labor-cocoa; U.S. DEP’T.
LABOR, CHILD LABOR COCOA COORDINATING GROUP ANNUAL REPORT (2018),
https://www.dol.gov/sites/dolgov/files/ILAB/legacy/files/CLCCG2018AnnualReport.pdf.
30 See e.g., FAIR LABOR ASSOCIATION, INDEPENDENT EXTERNAL MONITORING OF NESTLE’S COCOA S UPPLY CHAIN IN
IVORY COAST: 2016 (2017),
https://www.fairlabor.org/sites/default/files/documents/reports/october_2017_nestle_executive_summary.pdf; FAIRLABOR ASSOCIATION, INDEPENDENT EXTERNAL MONITORING OF OLAM’S COCOA SUPPLY CHAIN IN IVORY COAST:
2016 (2016),
https://www.fairlabor.org/sites/default/files/documents/reports/november_2017_olam_executive_summary.pdf[hereinafter INDEPENDENT EXTERNAL MONITORING OF OLAM’S COCOA SUPPLY CHAIN].
31 See, e.g., BITTER SWEETS, supra note 15; THE TRUE PRICE OF COCOA IVORY COAST, IDH & True Price (2016),
https://cocoainitiative.org/wp-content/uploads/2016/10/The-True-Price-of-Cocoa.pdf; COCOA BAROMETER (2018),
supra note 14.
32 See, e.g., Tim Adams, From bean to bar in Ivory Coast, a country built on cocoa, THE GUARDIAN, Feb. 24, 2019,https://www.theguardian.com/global-development/2019/feb/24/ivory-coast-cocoa-farmers-fairtrade-fortnightwomen-farmers-trade-justice; Whoriskey & Siegel, supra note 16.

6

A. The First Measures Taken in the U.S. to Tackle the Issue: The Harkin-Engels
ProtocolChild labor in West African cocoa production, particularly CDI, is a long-standing issue. Yet
it was not until the late 1990s that NGOs and news media were able to gain access to cocoa farms andbegin to educate the public on the systematic use of child labor in cocoa harvesting by the world’s
major cocoa producers. In 1999, various labor rights and consumer groups, most of them membersof the Washington-based Child Labor Coalition, began a campaign in the U.S. to pressure thecompanies to stop using child labor and to pay adult workers a living wage. They worked with (then)Congressman Bernie Sanders and Rep. Elliot Engel to introduce legislation to ban the importation of
cocoa (and other products) harvested by child labor. In 2001, that bill passed by a 291-115 vote in theHouse and went to the Senate, where Senator Tom Harkin sponsored it. However, the pending
legislation, known as the Harkin-Engel bill, was halted before a Senate vote due to intense industry
lobbying against a mandatory program with real consequences. Once the cocoa lobbyists were donewith the bill, it had been transformed into the 2001 Harkin-Engel Protocol (the Protocol), a“voluntary” initiative that gave the participating companies until 2005 to “phase out” the use of childlabor. The Protocol, executed on September 19, 2001, is attached hereto as Exhibit 1.
The CEO’s of the major cocoa importers, Nestle, Mars, Hershey, Barry Callebaut, World’s
Finest Chocolate, Inc., Blommer Chocolate Co., and Archer Daniels Midland (ADM)33 personally
signed the Protocol and made a commitment to achieve its goals. Section 1 of the agreed Key Action
Plan provided that
Industry has publicly acknowledged the problem of forced child labor in West Africa and willcontinue to commit significant resources to address it. West African nations also haveacknowledged the problem and have taken steps under their own laws to stop the practice.
More is needed because, while the scope of the problem is uncertain, the occurrence of theworst forms of child labor in the growing and processing of cocoa beans and their derivative
products is simply unacceptable. Industry will reiterate its acknowledgement of the problem
and in a highly-public way will commit itself to this protocol.34
The major cocoa companies, knowing that child labor was rampant in their supply chains,
acted to prevent effective measures to end their profiting from forced child labor and enacted a
voluntary program that was under the complete control of the companies. However, in doing so, thecompanies expressly acknowledged that there was “forced child labor” and the “worst forms of childlabor” in their supply chains.
This history of the cocoa companies’ actual “commitments” to ending child labor on a
voluntary basis is a shocking series of self-approved extensions coupled with repeated admissions thatthe companies continued to use forced child labor in their cocoa supply chains. In 2005, the Protocol’s
initial deadline, cocoa industry leaders admitted that the goals would not be “fully met” by the 2005
deadline, but assured Sen. Harkin and Rep. Engel they were “committed to achieving a certification
33 ADM later sold its cocoa business to Cargill. See Cargill buying ADM’s chocolate unit in North American expansion,

REUTERS, Sept. 2, 2014, https://www.reuters.com/article/us-archer-daniels-m-a-cargill/cargill-buying-adms-chocolateunit-in-north-american-expansion-idUSKBN0GX22M20140902.
34 Protocol, Exhibit 1, at 2.

7

system…within three years.”35 Then in 2008, cocoa industry leaders again unilaterally extended theirself-imposed deadline by two years.36 In 2010, the industry delayed the implementation date by a full
decade to 2020, and this time the goal was changed to merely reducing by 70% the use of child laborin the cocoa industry. At the 8th Annual World Cocoa Foundation (WCF) Meeting in July 2018, theindustry admitted it could not make its 2020, or even 2025, goal of eradicating child labor in the cocoa
supply chain. Effectively abandoning any set date, the WCF admitted it was not likely to meet its“aspiration for 2020” or its other targets “for the eradication of child labor by 2025.”37
The major cocoa importers, acting through WCF, have given themselves a free pass for 19
years to continue using child labor, all the while falsely promising to comply with the Harkin-Engel
Protocol and claiming to be “committed” and “concerned” about the welfare of children
performing hazardous work on their cocoa farms. These companies knowingly benefit from childlabor while failing to stop themselves from using child labor.

B. The Failures of the CocoaAction Plan
Around 2015, the major cocoa companies, all members of the WCF, implicitly admitted thatthe public was not likely to continue to believe that the companies would end child labor under the
Harkin-Engel Protocol when they announced that they were implementing the WCF’s“CocoaAction Plan.”38 However, this Plan has limited reach, no independent oversight, and does
not address the issue of forced labor specifically. Like the Harkin-Engel Protocol, the CocoaAction
Plan is more public relations than an effective program.
Among other things, the CocoaAction Plan purports to include a monitoring system toensure that there are no children working on participating companies’ cocoa farms, the Child Labor
Monitoring and Remediation System (CLMRS). In the fine print of the companies’ websites, they
acknowledge that CLMRS “monitoring” and the CocoaAction Plan extend only to a small
percentage of the companies’ supply chains, at most 20-30%. For example, Nestle claims only that“around one third of Nestlé's total global cocoa supply” is covered by this system.39 The Cocoa
Importers appear to be intentionally vague as to the limited scope of these programs. To the extent
there is information, it confirms that these are in essence pilot programs applicable to a small
portion of their cocoa production.

35 Joint Statement from U.S. Senator Tom Harkin, Representative Eliot Engel and the Chocolate/Cocoa Industry on Efforts to Address

the Worst Forms of Child Labor in Cocoa Growing, July 2, 2005,
http://www.cacao.gouv.ci/commun/documents/jointstatementSenateurTomHarkin.pdf.
36 Joint Statement from U.S. Senator Tom Harkin, Representative Eliot Engel and the Chocolate and Cocoa Industry on the
Implementation of the Harkin-Engel Protocol, June 16, 2008, http://www.csrwire.com/press_releases/14132-Joint-Statementfrom-U-S-Senator-Tom-Harkin-Representative-Eliot-Engel-and-the-Chocolate-and-Cocoa-Industry-on-theImplementation-of-the-Harkin-Engel-Protocol-#.
37 Remarks: Child Labor Cocoa Coordinating Group (CLCCG) Annual meeting Opening Ceremonies Sofitel Abidjan Hotel Ivoire,
Tuesday, July 17, 2018, https://www.worldcocoafoundation.org/blog/2018-child-labor-cocoa-coordinating-group-8thannual-meeting-remarks/.
38 World Cocoa Foundation, CocoaAction, https://www.worldcocoafoundation.org/about-wcf/cocoaaction/.
39 Nestle Cocoa Plan, https://www.nestlecocoaplanreport.com/.

8

In March 2019 interviews with the WCF, the ICI, and the Fair Labor Association (FLA),
IRAdvocates’ Executive Director, Terry Collingsworth, confirmed with each of these organizations
that, at most, 20-30% of any producer’s cocoa production comes from farms that are incooperatives and that are participants in the CocoaAction Plan. The remaining 70-80% comes fromthe “free zones” where there is no monitoring and a high incidence of child labor, including
trafficked child labor.
In addition to applying to a limited number of the companies’ supply chain farms, CLMRS
does not have independent monitoring, a key aspect of any credible system of compliance. Thesesystems largely rely on “self-reporting” by “trusted” communities of farmers. Given the long historyof exploitation of children by farmers squeezed by the low payments by the cocoa companies, this isa situation that absolutely requires a “trust but verify” approach. Further, to the extent there arereported violations, the companies collect this information and may or may not disclose it to the
public. More fundamentally, there are no consequences for a farmer using forced child laborers.
Even if a child labor violation is reported to the company, the cocoa produced by child labor issimply processed with all the other cocoa and prepared for export. Finally, there is no transparent
system of effective remediation for children found to be working as forced laborers – the companies
are largely silent about what happens to this small percentage of children harvesting cocoa who are
identified by the CocoaAction Plan. Helping these at-risk kids who have already been through thetremendous trauma of being trafficked and/or forced to perform hazardous work should be thehighest priority of any system, not a hidden data point. Presumably, the companies are fully aware of
the double-edged sword of reporting their own ongoing use of illegal child labor, thus showing theirmonitoring can produce results but also proving that they have failed to stop benefiting from childlabor. At most, CLMRS identifies child labor on a small number of farms and allows the Cocoa
Importers to purchase and export to the U.S. cocoa that included child labor.
As a clear example of the willful and ongoing use of child labor within the CocoaAction
Plan, on September 2, 2015, the FLA released the results of its audit performed for Nestlé. The FLA
explained that “[f]or Nestlé in Ivory Coast, the FLA has been monitoring since 2013 a growing
portion of its cocoa supply served by the Nestlé Cocoa Plan (NCP). As of mid-2015, the NCP
represented around 25 percent of Nestlé’s total cocoa supply chain.”40 Nestlé had the FLA audit thesubset of its supplying cocoa farms where it had engaged in the most efforts to eradicate child andforced labor. The FLA assessors visited a sample of 260 farms,41 less than 1% of the 30,000 that
supply Nestlé in the Ivory Coast.
The 2015 FLA report found children under the age of 15 working on cocoa farms fromwhich Nestle sourced.42 This came “more than a decade after the food company promised to end

40 FAIR LABOR ASSOCIATION, 2014 ASSESSMENTS OF NESTLÉ C OCOA S UPPLY CHAIN IN IVORY COAST, Sept. 2, 2015,

https://www.fairlabor.org/report/2014-assessments-nestlé-cocoa-supply-chain-ivory-coast.
41 Id.
42 FAIR LABOR ASSOCIATION, INDEPENDENT EXTERNAL MONITORING OF NESTLÉ’S COCOA S UPPLY CHAIN IN IVORY
COAST: 2015, at 5,
https://www.fairlabor.org/sites/default/files/documents/reports/september_2016_nestle_executive_summary.pdf.

9the use of child labour in its supply chain.”43 These children “were involved in various farm activities… Some of these tasks are considered as hazardous since they involve the use of machete andtransportation of heavy loads.”44 The Fair Labor Association also “found evidence of forced
labour,”45 including a young worker who had not received his salary for an entire year that heworked at a farm.46 In its own report from 2019, Nestle admitted that 23% of the children it wasmonitoring were performing child labor, amounting to 18,283 of the 78,580 children in Nestlee’smonitoring system.47 (13)In a 2017 FLA audit of cooperatives in Olam’s supply chain, “monitors identified a contract
worker who was presented by his employer as 18 years old. However, based on his physicalappearance, the monitors believe that his age might be 14 years.”48 They also identified a young
worker who was prohibited from speaking to them.49 These cases were in addition to numerous
other farms where the FLA found children engaged in labor, including hazardous work.
To further deceive the consumers and government regulators, the major U.S. cocoa
importers that are members of the WCF hire and pay Fair Trade, UTZ, and Rainforest Alliance tolabel their cocoa as meeting their standards when these groups also know that at most only 20-30%
of the companies’ cocoa production is even partially monitored. Further, these so-called “fair trade”
initiatives mislead the public by creating the false impression that they are certifying cocoa as childlabor-free when they do not in fact assess the extent of child labor in their member companies’
production. In addition, they are forced to admit that in CDI they mix “certified” beans withuncertified beans to maintain supply. The Washington Post recently exposed the reality of these shamprograms that do little more than mislead consumers into thinking that “fair trade” means childlabor free.50
Each time the WCF or another industry group makes a comment on the child labor issue they
implicitly admit that the industry continues to use and benefit from child labor. For instance, a January
15, 2020 article in confectionery news reported that the Government of Cote D’Ivoire conducted
raids on cocoa farms and freed 137 trafficked children and arrested 12 traffickers. In response the
WCF could only offer the repeated empty refrain that they have “zero tolerance” for child labor.51 As
43 Joe Sandler Clarke, Child labour on Nestlé farms: chocolate giant’s problems continue, THE GUARDIAN, Sept. 2, 2015,

https://www.theguardian.com/global-development-professionals-network/2015/sep/02/child-labour-on-nestle-farmschocolate-giants-problems-continue.
44 FAIR LABOR ASSOCIATION, INDEPENDENT EXTERNAL MONITORING OF NESTLÉ’S COCOA S UPPLY CHAIN IN IVORY
COAST: 2015, supra note 42, at 5.
45 Clarke, supra note 43.
46 FAIR LABOR ASSOCIATION, INDEPENDENT EXTERNAL MONITORING OF NESTLÉ’S COCOA S UPPLY CHAIN IN IVORY
COAST: 2014–2015, at 3–4,
https://www.fairlabor.org/sites/default/files/documents/reports/september_2015_nestle_executive_summary.pdf.
47 Tackling Child Labor: 2019 Report, Nestlé Cocoa Plan, at 13, https://www.nestle.com/sites/default/files/2019-12/nestletackling-child-labor-report-2019-en.pdf.
48 INDEPENDENT EXTERNAL MONITORING OF OLAM’S COCOA SUPPLY CHAIN, supra note 30, at 6.
49 Id. at 5.
50 Peter Whoriskey, Chocolate companies sell ‘certified cocoa.’ But some of those farms use child labor, harm forests, WASH. POST, Oct.
23, 2019, https://www.washingtonpost.com/business/2019/10/23/chocolate-companies-say-their-cocoa-is-certifiedsome-farms-use-child-labor-thousands-are-protected-forests/.
51 Anthony Myers, Ivorian police raid cocoa farms and villages in child trafficking crackdown, CONFECTIONERYNEWS .COM, Jan. 15,
2020, https://www.confectionerynews.com/Article/2020/01/15/Ivorian-police-raid-cocoa-farms-and-villages-in-childtrafficking-crackdown.

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support for this, the WCF referenced a recent report that found that 829,400 children in CDI were
working in the cocoa sector and 768,800 were performing hazardous work.52 The report further foundthat 667,800 children were working in the cocoa sector in Ghana and 632,100 of those children were
performing hazardous labor.53 There is no question that the companies are admitting, once again, thatthey have failed to stop using child labor and thus are knowingly benefiting from the ongoing abuseof children on cocoa farms.

C. History of Efforts Seeking Accountability
With this long history of admissions by U.S. cocoa importers that there was and continues tobe child labor in their supply chains, it is remarkable that they continue to import cocoa producedwith illegal child labor undeterred. On May 30, 2002, the International Labor Rights Forum (ILRF)
filed a section 307 Petition seeking a Withhold Release Order (WRO) on all cocoa imported to the
U.S. from CDI, attached hereto as Exhibit 2. The ILRF Petition detailed the extensive evidence offorced and trafficked child labor in the harvesting and processing of CDI cocoa and documented that
U.S. importers were knowingly importing cocoa produced by illegal child labor. There was little
dispute about the facts. The cocoa importers, acting through the Chocolate Manufacturers Association(CMA), one of the entities that signed the Protocol and pledged in 2001 to end child labor in the cocoa
supply chain, did not dispute that child labor was pervasive in their supply chains; rather, they argued
that the “domestic consumptive demand” exemption allowed them to continue to import cocoa from
CDI even though it was produced by child labor.54 The domestic consumptive demand exemption
was removed in 201555 and thus no longer provides immunity for the Cocoa Importers’ ongoing andadmitted use of illegal child labor in their supply chains.
When the cocoa companies that signed the 2001 Protocol had still done little or nothing to
implement the pledge to end child labor by 2005, IRAdvocates filed a federal lawsuit under the Alien
Tort Statute, 28 U.S.C. 1350 against Nestle and Cargill on behalf of six individuals who, as children,
had been trafficked from Mali to CDI and had been forced to work harvesting cocoa. The case, John
Doe I et al. v. Nestle et al., is still pending. The Second Amended Complaint, which includes detailed
factual allegations that Nestle and Cargill knowingly aided and abetted ongoing forced child labor in
CDI, is attached hereto as Exhibit 4. The case has been in the courts for 15 years. Nestle and Cargill,once again, do not and cannot deny that they are knowingly benefiting from child labor in their CDI
supply chains. The companies continue to raise highly technical legal arguments in an attempt to avoid
liability for their admitted use of child labor. The Ninth Circuit Court of Appeals has consistently
credited the allegations of the former forced child laborers and has overruled the companies’ specious
legal arguments.56

52 BITTER SWEETS, supra note 15, at 24.
53 Id.

54 See ILRF et al., v. United States and Chocolate Manufacturers’ Association, Slip Op. 05-110 (U.S. CIT, 8-29-05), at 9-13,

attached hereto as Exhibit 3.
55 Trade Facilitation and Trade Enforcement Act of 2015, current version at 19 U.S.C. § 1307 (2012 & Supp III 2015).
56 See Doe I. v. Nestlé USA, Inc. (Doe I), 766 F.3d 1013 (9th Cir. 2014); Doe v. Nestle, S.A., 929 F.3d 623 (9th Cir. 2018).

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Reviewing the facts alleged by the six former forced child laborers trafficked from Mali towork on cocoa farms in CDI, the Ninth Circuit observed: “The defendants’ involvement in thecocoa market gives them economic leverage, and along with other large multinational companies, thedefendants effectively control the production of Ivorian cocoa.”57 The Ninth Circuit also found thatthe defendants in the case “are well aware of the child slavery problem in the Ivory Coast. Theyacquired this knowledge firsthand through their numerous visits to Ivorian farms. Additionally, thedefendants knew of the child slave labor problems in the Ivorian cocoa sector due to the many
reports issued by domestic and international organizations.”58 The Ninth Circuit further stated:

Despite their knowledge of child slavery and their control over the cocoa market,
the defendants operate in the Ivory Coast “with the unilateral goal of finding thecheapest sources of cocoa.” The defendants continue to supply money,equipment, and training to Ivorian farmers, knowing that these provisions will
facilitate the use of forced child labor.59
The Ninth Circuit further commented:

The defendants’ control over the Ivory Coast cocoa market further supports theallegation that the defendants acted with the purpose to facilitate slavery. … The
defendants had the means to stop or limit the use of child slavery, and had theywanted the slave labor to end, they could have used their leverage in the cocoa
market to stop it. Their alleged failure to do so, coupled with the cost-cutting
benefit they allegedly receive from the use of child slaves, strongly supports theinference that the defendants acted with purpose.60***

Thus, 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. These allegations are
sufficient to satisfy the mens rea required of an aiding and abetting claim undereither a knowledge or purpose standard.61
Nestle and Cargill are now seeking review in the U.S. Supreme Court arguing that corporations cannot
be sued under international law.62 Once again, the companies are not denying that there is forced andtrafficked child labor harvesting their cocoa. They are seeking immunity based on an arcane point oflaw.
Members of Congress who first sought to regulate imported products produced by child laborand settled for the Protocol are now expressing great frustration that after nearly 20 years of promises
and pledges made by the companies, child labor remains a serious problem. There are several new
57 Doe I, 766 F. 3d at 1017–19 (quotations to Plaintiffs’ First Amended Complaint).

58 Doe I, 766 F. 3d at 1017–19 (quotations to Plaintiffs’ First Amended Complaint).
59 Doe I, 766 F. 3d at 1017–19.

60 Id. at 1024–25 (emphasis added).
61 Id. at 1026 (emphasis added).

62 Edvard Pettersson, Child Slavery Claims Against Nestle, Cargill Get One More Chance, BLOOMBERG, Jan. 8, 2017,https://www.bloomberg.com/news/articles/2017-01-09/child-slavery-claims-against-nestle-cargill-get-one-morechance.

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bills being developed to try to effectively stop the U.S. cocoa importers from continuing to benefit
from illegal child labor. In the Senate, Senators Brown and Wyden sent a strong letter to CBP askingfor enforcement action for cocoa under section 307 of the Trade Act 19 years after the importing
companies promised Congress they would phase out child labor by 2005. A copy of the Brown-Wyden
Letter is attached hereto as Exhibit 5.

III. Full Statement of the Reasons for the Belief that Cocoa Imported from CDI is Produced
With Forced or Trafficked Child labor.
The repeated admissions by the U.S. cocoa companies, going back to the 2001 Harkin-Engel
Protocol, that they are allowing illegal child labor to continue in their supply chains while they makeempty promises to take effective action to phase out child labor, should be enough, in itself, to allow
the Commissioner of Customs to find the “information available reasonably but not conclusively
indicates that” cocoa harvested and processed with illegal child labor “is being, or is likely to be,imported”63 and shift the burden of proof to the importers by issuing a WRO, effective 180 days
from the time of the Order, “unless the importer establishes by satisfactory evidence that themerchandise was not ... manufactured in any part with the use of a class of labor specified in thefinding.” 19 C.F.R. § 12.42 (g)(emphasis added). Evidence should include a transparent supply chain
mapped to the farm level, a public report on how the importers are implementing their own Codesof Conduct and supervising their Supplier Codes, and a grievance mechanism in place that is in linewith the UNGPs.
The cocoa companies are not hapless consumers of cocoa harvested by children in CDI.
The companies are acting together in the WCF to knowingly perpetuate a system of forced andtrafficked child labor that they will continue to benefit from until they are forced to stop. They have
proven without question that they cannot be trusted to monitor themselves. This demonstrates,
once again, the old adage that the fox cannot be trusted to guard the chicken coop.
To ensure a complete record that removes all doubt that the relief requested by Petitioners
should be granted, Petitioners provide the following additional evidence of pervasive and ongoinguse of forced or trafficked child labor by the U.S. importers.

A. Evidence of Forced and Trafficked Child Labor Gathered by CAL andIRAdvocates in Partnership with Local Organizations.
CAL and IRAdvocates, with local support, obtained evidence of child labor on cocoa farms
throughout CDI in December 2019. Here we provide evidence of both trafficking of children andchild labor throughout the cocoa industry. In order to protect the identities of investigators,
witnesses, and victims, simultaneous to this petition, CAL and IRAdvocates are privately submitting
evidence to CBP, including affidavits, photos, videos and audio recordings.

63 19 C.F.R. § 19.42 (e)(emphasis added).

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Determining that any person, adult or child, is engaged in forced labor, is highly factintensive and often speculative. While we cannot determine with certainty whether any particular
individual was engaged in forced labor at the time the evidence was gathered in December 2019, we
tried to identify where particular indicia relevant to the analysis were present, including other formsof illegal labor (primarily hazardous child labor), evidence that the person was from a different
country or region, language differences, and evidence that a child was not accompanied by membersof the child's immediate family.
Further, as described above, the extremely sensitive nature of this sector made it difficult to
get access to farms and to have people speak freely. The investigators explained to us that it seemed
like a system set up for hiding. People would stop working and children would walk away when astranger such as the investigators approached. Many people who did speak sounded like they had
prepared answers.
The investigators went to four different regions of the country and spoke with farmers andfarmworkers, both adult and children, as well as cooperative managers and others living and working
in the areas they visited. They documented children engaged in hazardous activities, some of whom
had dropped out of school, and one youth who had been sent over from Mali to work with his uncle
on a cocoa farm. Children as young as five were carrying or using machetes, children as young as ten
were carrying extremely heavy loads of cocoa beans, and teenagers were selling agriculturalchemicals. Many were hesitant to talk to the investigators, especially to share their ages, and near one
farm, the investigators saw “[t]wo underage girls visibly emerging from the cocoa plantation, holding
machetes. When they saw that they were being filmed, they fled.”64
The investigators interviewed two teenagers who had been lured from the north of CDI andhad made it part way to a cocoa farm further south before their families intervened and broughtthem back home. The teenagers described how they met their initial contact at night, and talked
about the network of point people and various stops between the border town and Issia, where theywould depart from to go to an undisclosed farm. They made it as far as Bouaké, a common transit
town for migrant workers, when a family member brought them back to their town. They explainedthat by then, another group of youth, younger than them, had departed.
The investigators spoke with cooperatives, and saw posters stating that child labor is notallowed close to farms where they saw child labor happening. One cooperative manager openly
admitted that the farms used child labor. This manager told the investigators that after children pileup the cocoa and break the pods up to put them in the sun, the cocoa is sent to “big industrial
groups.” He explained that after the children brought the cocoa pods to the camp, they dry the pods
on tarps and racks. Then the coops give the cocoa to “the financiers,” including Cargill. In response
to a question from the investigator as to whether the coop has to meet quotas set by companies andtherefore “take[s] children to supplement those who have to make the 2400 tonnes,” the manager
responded “yes.”

64 Source on file with CAL.

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B. Evidence of Forced and Trafficked Child Labor Gathered by IRAdvocates’
Research from 2017–19
IRAdvocates renewed its evidence-gathering on forced and trafficked child labor in CDI
cocoa harvesting and production in 2017 in order to assess whether the companies had finally madesignificant improvements in their supply chains and had made measurable progress on phasing childlabor out of their cocoa production. Unfortunately, the situation remains unchanged and child laborremains a major problem in CDI cocoa production. IRAdvocates is now finalizing a new legal
complaint based on this newly-gathered evidence and will soon be filing a federal complaint against
Nestlé, Cargill, Barry Callebaut, Mars, Olam, Hershey, Mondelēz, and perhaps others, under the
Trafficking Victims Protection Reauthorization Act (“TVPRA”), 18 U.S.C. § 1595 et. seq.
In 2018, the IRAdvocates team, including the undersigned Executive Director Terry
Collingsworth, visited cocoa farms around CDI. In Duekoue, they observed and interviewed agroup of about 7 male child workers harvesting cocoa. The following are photos taken by Terry
Collingsworth or a member of the team:65

The two children in the photos above were both about 14 years old. They were using
machetes to clear brush around the cocoa trees and to cut cocoa pods from the trees and then open
the pods and clean the cocoa beans. Both children said they were brought by a “man” from Burkina
Faso, where they were from. They did not know the man’s name, but they were promised jobs
working on a cocoa farm. When IRAdvocates met them, they both had been working on the farmfor over a year and were on their second season. They had not yet been paid anything and were
working for food. They slept in a lean-to made of sticks and covered with a tarp. The boy in thephoto immediately above in the white shirt expressed that he was very hungry and asked for food.
He was visibly afraid of the adult male who was the overseer of the farm.
The first 60 seconds of this video https://vimeo.com/388589094 shows these same children
and other children on this farm performing hazardous work. The video was filmed by Miki Mistrati’s
65 The children in these photographs were observed by IRAdvocates working on farms that were easily accessible to the

public. None of these children are participants in any legal action brought by IRAdvocates.

15

film crew as part of a new documentary they are making focused on Nestle and Cargill’s ongoing useof child labor while these companies deny their responsibility for injuries to forced child laborers in
the Doe v. Nestle case.
The adult male on the right in the photo (left) was theoverseer of the farm. He informed the IRAdvocates teamthat the cocoa from that farm was sent to a processing andsorting center just down the road.
IRAdvocates went to the processing center andphotographed the Cargill bags that were being filled withcocoa beans (below):

In March 2019, IRAdvocates returned to CDI and again visited several farms. In Daloa,
IRAdvocates visited a farm that had about 8 boys working with machetes cutting down cocoa pods,
opening the pods, and cleaning the beans. The following photos were taken by IRAdvocates’
Executive Director Terry Collingsworth or a member of the team:16

The children in these photos were vague about their ages but
were clearly quite young. IRAdvocates estimates they were
no more than 14 or 15 years old. The children were also fromBurkina Faso. The young boy with the grey shirt in the firsttwo photos first said that his father brought him to the CDI
cocoa farm, but he said his father was back in Burkina Faso.
He appeared to be visibly afraid when IRAdvocatesquestioned him about how he came to the farm and appeared
to be an example of a child being told by those who
trafficked him not to provide details about his situation. The
final 52 seconds of this video shows these same children
performing hazardous work:https://vimeo.com/388589094
The video was filmed by Miki Mistrati’s film crew as part of a
new documentary they are making focused on Nestle andCargill’s ongoing use of child labor while continuing to deny their responsibility for injuries toforced child laborers in the Doe v. Nestle case.

IRAdvocates left this farm and very close by was a large Cargill cooperative (below left):

The certification rules of Rainforest Alliance were posted on the wall of the processing center(above right).
IRAdvocates observed that cocoa beans were being brought in and dumped on the floor andmixed with other beans. The owner/manager of the cooperative admitted that the “certified” beans
were mixed with non-certified beans as a routine matter. This is consistent with the results of the
Washington Post’s investigation of the so-called certification schemes.66
66 Whoriskey, supra note 50.

17During both the 2018 and 2019 IRAdvocates research trips, the team also visited Mali,
where many of the children working on CDI cocoa farms are trafficked from. IRAdvocates met
with and interviewed numerous former child laborers who were trafficked from Mali to work in
CDI on cocoa farms. IRAdvocates selected eight former trafficked child laborers to serve as
Plaintiffs in the TVPRA case IRAdvocates will soon file against Nestle, Cargill, Mars, Hershey, Barry
Callebaut, Mondelēz, and Olam. The following paragraphs which will be part of the forthcoming
TVPRA case provide the facts of how these eight children were trafficked from Mali and what
conditions they faced in CDI working on cocoa farms:67

C. Factual Allegations of Eight Plaintiffs From IRAdvocates’ Forthcoming TVPRA
Case
1. John Doe 20 is from Djoumatene in the Department of Kadilio, Mali. He thinks he wasborn late in 1996. In 2012, when he was 15 years old, he was working in a field near his home in
Mali when a man approached and offered him a job. The man promised a good paying job in Côte
d’Ivoire and offered to pay his transport there. They went together to the bus terminal in Sakasso.
The man bought his ticket and also boarded the bus. They arrived in Daloa, Côte d’Ivoire, a major
cocoa production area where all Defendants obtain cocoa. There they were met by another man
who bought him a bus ticket to another village. He did not know exactly where. The second man
went with him. From there they went to a plantation and he met the man who apparently owned or
managed the plantation. He came to know the man’s name was Lassina Coubaly. He also came toknow that the plantation was called the Guezouba plantation. This was a small plantation of 8
hectares. He was the only worker there.
2. John Doe 20 was told that he would be fed and would be paid his wages at the end of theseason when the cocoa was harvested. He worked long days, from around 6 am until 4 or 5 pm. He
cleared brush with a machete and tended the plants. When the cocoa was ready to harvest, he picked
the pods and opened them with a machete to remove the cocoa beans. He also applied pesticides
and herbicides without any safety instruction or protective gear. He slept on the plantation under aragged tarp. He was exposed to insects and snakes. At the end of the year he was not paid. He asked
for money to leave and Lassina told him he had to stay and keep working. He had absolutely nomoney and did not know where he was. He kept working so that he could eat and not starve todeath. He worked under these conditions for 5 years. At the end of the 5th season, in 2017, he wasdesperate and could not continue doing the difficult and hazardous work only to barely be fed
enough to keep him alive. He confronted Lassina and said that he wanted to be paid all of the wages
he was due and that he was going to leave. Lassina said he had no money, but finally gave him
20,000 CFA (about $33.00) for transport, and he left. It took some time to get back to Mali because
20,000 CFA was not enough money to even cover transport home. He did some odd jobs in Pogo,the border town in Côte d’Ivoire, to earn enough money to get a bus back to Mali. He arrived homein early March 2017.

67 These are the actual paragraphs from the TVPRA complaint. The eight Plaintiffs are identified with pseudonyms forsecurity reasons. With proper precautions, IRAdvocates can arrange for these individuals to be interviewed.

18

3. John Doe 21 is also from Djoumatene in the Department of Kadilio, Mali. He thinks hewas 16 when, completely destitute, he was in Komogho, Mali looking for work. There, when he waswandering around, a man named Seydou told him he had a brother in Côte d’Ivoire who could givehim a good job on a cocoa plantation. John Doe 21 accepted the offer and Seydou bought him a bus
ticket to Abidjan, and then on to Aboisso, Côte d’Ivoire. When he got there, Madou Kone, Seydou’s
brother, met him and took him in the night to a plantation John Doe 21 later found out was called
Karou. Madou said he had to work to pay off bus fare. Sidiki worked for a year, to the end of theseason, and asked to be paid. Madou said he had to keep working and that he would pay him 12,500
CFA (about $21.00) per month going forward but would only pay at the end of the season when thecocoa was sold. He worked with 6 other children, and though he could not speak with them because
they spoke some other dialect (Senoufo), he learned they were not being paid either.
4. John Doe 21cleared brush with a machete and tended the plants. When the cocoa was
ready to harvest, he picked the pods and opened them with a machete to remove the cocoa beans.
He also applied pesticides and herbicides without any safety instruction or protective gear. At theend of the next year, Madou told him the same thing again. He worked one more season and wasstill not paid for almost 3 years of work. He complained and Madou beat him. Shortly thereafter,
Madou gave him CFA 20,500 ($34.00) and told him how to get a bus to Abidjan. He could not leave
the plantation before he finally got a small amount of money from Madou because he did not have asingle CFA in his pocket and did not even know where he was. He had no identification and no idea
how to get help. When he got there, he did not have enough money to get a ticket home, so hefound a job at a construction site for CFA 1,500 ($2.50) per day. He worked about 15 days and thenhad enough to get his ticket home to Mali.
5. John Doe 22 is from Kouroussandougou, Mali. He was 11 years old and was approachednear the bus station by a man named Brahima who promised him a job in Côte d’Ivoire. He went
with Brahima, who bought him a bus ticket to the Mali/Côte d’Ivoire border town of Zegoa in Mali.
There were 4 or 5 other children with him when he got on the bus. In Zegoa, they got off the bus
and Brahima arranged for small motor bikes to take them across the border beyond the check point
as they did not have identification papers. They crossed the border and went to Pogo, the Côte
d’Ivoire border town. From there, they all went on a bus to Sinfra. There, Brahima handed him overto Madou Kone, who took him to a house to sleep. Then Madou’s brother came and took him to aplantation called Yofla near Sinfra, which is a major cocoa-producing region in Côte d’Ivoire. He
went alone, but 2 other small children came within a few days. He was promised CFA 25,000 per
month and Friday (religious holiday) off, but he was then forced to work every day and was not
paid.
6. John Doe 22 cleared brush with a machete and tended the plants. When the cocoa was
ready to harvest, he picked the pods and opened them with a machete to remove the cocoa beans.
He also applied pesticides and herbicides without any safety instruction or protective gear. He
worked for a year this way and was told he would be paid after the next year. He was given breakfast
in the morning and then worked all day without food. He was once bitten by a snake and got sickbecause they did not give him medical care. He could not leave on his own because he had nomoney, did not speak the language where he was working, and had no idea where he was. After 2
years, Madou took him to the bus station in Sinfra and bought him a bus ticket back to Mali. He
gave him some extra money for food, but the guards at the border took it when he did not have any
identification.

19

7. John Roe 1 was 14 years old in early 2009 when he was approached near Sikasso, Mali, byOmar Traore who told him he could get him work on a cocoa plantation in Côte d’Ivoire. Omarthen introduced him to a lorry driver in Sikasso, Mali, and the driver took him to Divo, Côte
d’Ivoire. When they got to Divo after a 12-plus hour drive, he met the owner of the plantation,
Madou Kone. Divo is a major cocoa-producing area from which all Defendants obtain cocoa. He
was taken by motorbike to the plantation. The owner promised him 90,000 CFA (about $180) at theend of the harvest season. The owner showed him around and left him with the other workers, 3
kids and 1 older man, all from Mali. The owner lived in Divo and did not work the plantation
himself. The 3 kids were from a different area of Mali and he could not understand their dialect. The
older man was in charge and did not want him to speak with the other kids and kept everyone
working separately. The kids were all afraid of him.
8. John Roe 1 slept in a small, open hut on the plantation. He ate bananas, pineapple, andcassava roots. He was always hungry. He did everything on the plantation. He cleared brush, cut
down and opened cocoa pods, and applied pesticides. He has visible scars from cuts on his hands
and arms from machete accidents. He was always bitten by bugs. The owner came once a week or soto check on things. At the end of the year, the owner was visiting and John Roe 1 asked for the
90,000 CFA he was promised. The owner said he did not have the money to pay anyone but would
pay once he had it. John Roe 1 wanted to leave, but he had not one CFA in his pocket. He did notknow where he was, but knew he was a very long distance from Mali, and there was no one he could
ask for help. He was very afraid but saw no option other than continuing to work for food and hope
he would get paid. He worked another year through the next harvest and was again told by theowner there was no money to pay the workers. The owner said he would get all his money soon.
John Roe 1 worked another 3-4 months to avoid starvation, and then met Baba Bambara Dioula on
the plantation, who was originally from Burkina Faso and owned a neighboring plantation. John Roe
1 told Baba his story and he took him to the lorry park and introduced him to a driver who washeading to Mali and the driver took him for no charge. He returned to Mali at the end of 2011.
9. Plaintiffs John Roe 2 and John Roe 3 were trafficked together from Mali to the cocoa
plantations of Côte d’Ivoire. They were friends from childhood. John Roe 2 was born in 1998. John
Roe 3 does not know his birthdate, but he does know he is one year younger than John Roe 2, so he
was likely born in 1999. In 2013, when John Roe 2 was 14 and John Roe 3 was 13 they wereapproached by a labor broker known as Nou, who told them he could send them both to Cote
D’Ivoire to get good jobs on a cocoa plantation. They said they had no money. Nou said that hewould pay for everything and the plantation owner would pay him back out of their first pay. Nou
then took them to a bus and he clearly knew the driver. He explained to the driver what was goingon and paid the driver something. This first bus took them all the way to Yamoussoukro, which isthe ancient capital of Cote D’Ivoire and about 150 km North of Abidjan. The trip took at least 12
hours. The bus driver fed them and also paid off the border guard at the Côte d’Ivoire/Mali bordercrossing. There, the bus driver took them over to a different bus and spoke to the driver. They got
on the new bus and first stopped in San Pedro and then went on the Grabo, which is in the far
Southwest of Côte d’Ivoire just a few miles from the border with Liberia. This area is known to the“wild west” of the cocoa production areas and there are lots of unregulated, free zone plantations inthat area. All the Defendants purchase free zone cocoa for 70-80% of their cocoa, and much of itcomes from this area.
10. The owner of the plantation they were destined for, Salif Djamoutene, met John Roes 2
and 3 in Grabo. Salif was on a bicycle and he rode beside them as they walked about 6-7 hours to
the small village of Souroudouga. They were not given any food and they were able to drink water
20

out of a river. The planation was just outside of the village. It was a big one, maybe 12 hectares. Salif
explained the entire process of harvesting cocoa and caring for the trees. He offered them 100,000
CFA each (about $200) to work for the year until the harvest, when they would be paid. He did saythat he would pay for Nou and all the travel expenses out of the first pay, but did not say how muchthat would be. Salif came about once a week to check on them, and they were they only two
workers. He yelled at them a lot and said they needed to do better if they wanted to be fed. He
brought their food when he visited and they ate mainly yams, bananas, and cassava. They did
everything on the plantation, including clearing brush, applying pesticides and fertilizer (without any
protective gear), cutting down the pods, opening them, collecting the beans and drying them. Bothhave visible scars from machete accidents.
11. At the end of the season, John Roes 2 and 3 asked to be paid. They worked for about 7
months. They told Salif they wanted to be paid what they were owed and they wanted to go home.
They were afraid of staying because the owner of a neighboring plantation had been killed due to aland conflict in the area and they wanted to get out of the area. Salif told them he had no money to
pay them and that they owed a lot to Nou. They left Salif and decided to try to get home. They
walked from the plantation back to Grabo. They remembered the way because they had walked it to
get to the plantation. At the bus station they met a driver who agreed to take them to San Pedro.
There they got another driver to take them to Abidjan because one of them had a relative there. In
Abidjan, the relative who was from Mali took them to the bus station and introduced them to adriver also from Mali who was going to Sikasso. The bus driver took them and gave them food andpaid to get them through the checkpoint at the Mali border.
12. Plaintiff John Roe 5 is still suffering from physical and mental trauma to this day
attributable to his four years of working on a cocoa plantation in Côte d’Ivoire. He has never been
to school. He was born in 1998. He went to work in 2012, when he was 14. He is from the village ofNionodjassa, Mali. A man came to his village and told John Roe 5 that he could get him a good job
in Côte d’Ivoire. The man took John Roe 5 on a motorbike to the bus station in Sikasso. The guy
paid for the bus and seemed to know the driver. The guy told John Roe 5 the costs would be takenout of his first pay. Like John Roes 2 and 3, he took the bus route to Grabo. When he got there, he
met Sidibe the plantation owner who the guy who sent him arranged. They walked about two hours
from the bus station to the plantation. Sidibe showed him how to do the work. He did everything on
the plantation from clearing brush, trimming trees, harvesting and opening pods, and applying
pesticides. He remembered a brand of pesticide called “72” that he used. He was not given any
protective gear. He cut himself many times. Sidibe came once a week and brought food and gave
him direction for the week. He worked alone. At the end of the first year Sidibe said he did not haveany money but would eventually pay him.
13. John Roe 5 continued this arrangement for four years. He had no idea where he was orwhere he could go. He did not have any money and no identification. After 4 years, he got very sickand lost consciousness. He attributes this to exhaustion and hunger. He woke up in a local hospital.
He thinks Sidibe brought him there. Somehow, he does not know, a relative Drissa Ballo was
summoned to get him. Drissa took him by bus back to Mali and to a hospital there where he spent 1
night. The doctor said he was suffering from traumatic stress. He recalls that during the worst partof the trauma he endured while working on the plantation for 4 years without pay, he dreamed ofgetting a bicycle and a radio when he finally got paid.
14. Plaintiff John Roe 6 is a very observant Muslim and knows only the Koranic calendar.
He went to work in 2006 when he was 13 and worked for 5 years. A man named Soumaila Kone
21

came to his village, Domogodjassa, and promised him 125,000 CFA ($250) per year to work on a
cocoa plantation in Côte d’Ivoire. Soumaila was originally from Burkina Faso. He said he did notknow the man but really needed to earn money so he went to the bus station in Sikasso with him.
Soumaila spoke to and paid the bus driver. JR 6 was taken by bus to Divo, Côte d’Ivoire, a major
cocoa producing area that all Defendants obtain cocoa from. Divo is at least 12 hours by bus fromSikasso. At Divo John Roe 6 was met by the owner of the plantation, Sekou Traore. From the bus
station they went by a cocoa truck to the plantation near the village of Niama. It was about 10-11
hectares. Sekou showed him how to do the work. He did all tasks on the plantation and has terrible
scars on his arms from the machete. There was one other Malian boy there and another boy fromBurkina Faso. The owner separated John Roe 6 from the Malian boy so they could not talk. They
worked in different parts of the plantation.
15. John Roe 6 fell victim of the same basic scheme as the other Plaintiffs – each year theowner said he had no money, but told John Roe 6 to keep working if he wanted to be fed, and hewould eventually be paid. John Roe 6 had no money, did not know how to get home or even where
he was as it was long drive from Mali. After five years, he got angry and demanded that he be paidso he could leave. The owner did pay him 125,000 CFA, so he finally had enough money to get
home. He walked to the bus station and went back to Mali.
IRAdvocates has detailed notes from these and other interviews that are now protected by
the Attorney-Client and work product privileges, but would be happy to provide additional
information as requested.

D. 2019 Report and Video by Investigative Journalist Group Cenozo
In January 2019, Abou Traoré from the investigative journalist group Cenozo published areport on Cenozo’s website, after going undercover on a bus traveling from Burkina Faso to CDI todocument the trafficking of children for work in the cocoa sector.68 In February 2019, Cenozo
uploaded a video discussing that investigation.69

E. Two Documentary Films By Miki Mistrati
Filmmaker Miki Mistrati has produced two comprehensive documentary films documenting
the horrors of forced child labor in cocoa production in CDI:The Dark Side of Chocolate
https://www.youtube.com/watch?v=7Vfbv6hNeng
Shady Chocolate

68 Abou Traoré, Travail des enfants dans les plantations de cacao: Le traffic a la peau dure, CENOZO,

https://cenozo.org/en/articles/120-travail-des-enfants-dans-les-plantations-de-cacao-le-trafic-a-la-peau-dure.
69 Cenozo, Travail des enfants dans les plantations de cacao: Le trafic a la peau dure,
https://www.facebook.com/cenozo/videos/308465473203064/?q=abou%20traore%20cenozo&epa=SEARCH_BOX.

22

https://www.youtube.com/watch?v=Z5C7jmrycf0

F. U.S. Department of Labor Reports
Since 2001, the U.S. Department of Labor (DOL) has published annual reports on countries
in which children are subjected to the “Worst Forms of Child Labor.” The 2001 Report specificallyfound that “children are sometimes forced to work for owners of commercial farms harvestingcocoa . . .”70 Every year since 2001, the DOL has found there is forced child labor, including
trafficked children, and children performing the Worst Forms of Child Labor, in harvesting cocoa in
CDI. The latest report, which covers 2018, also found forced child labor, trafficked child labor, andchildren performing the Worst Forms of Child Labor in cocoa production, among other areas.71 Not
only are the DOL Reports highly credible, they should be conclusive. Petitioners urge that CBPshould issue WROs in all cases in which DOL reports ongoing forced or trafficked child labor in the
production of any specific product, like cocoa, coming from a specific country, like CDI.

V. A Detailed Description or Sample of the Merchandise Subject to the Petition.
CDI remains the undisputed world leader in cocoa production and produces almost 40% ofworld production.72 As detailed above, child labor, including forced or trafficked child labor, remains
pervasive in CDI cocoa production. Much of this cocoa “is being, or is likely to be, imported,” by the
U.S. Cocoa Importers. 19 C.F.R. § 12.42 (e).
The Cocoa Importers have had nearly two decades to make good on their promise that theircocoa from CDI imported to the U.S. would be certified as child labor free. Their cocoa continues tobe imported into the U.S. without impediment even though they admit that this cocoa was likely
harvested with forced or trafficked child labor. Petitioners’ evidence conclusively reinforces thecompanies admissions. There is no question that the evidence provided herein and the extensive
public record “reasonably but not conclusively indicates that” cocoa harvested and processed by
the cocoa importers in CDI73 “is being, or is likely to be, imported”74 to the U.S market and was made“wholly or in part”75 with forced or trafficked child labor.

70 DEPARTMENT OF L ABOR, COTE D’IVOIRE: GOVERNMENT POLICIES AND PROGRAMS TO ELIMINATE THE WORSTFORMS OF CHILD LABOR, at 104,https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2001/cotedivoire.pdf.
71 CHILD LABOR AND FORCED LABOR REPORTS, supra note 28.
72 See, e.g., Esri, Cocoa Industry in the Cote d’Ivoire,https://www.arcgis.com/apps/Cascade/index.html?appid=dd19d4b6444e492da5b069d62d2c3ecb.
73 There are certainly other companies that import CDI cocoa to the U.S. and a total ban on CDI cocoa would be
warranted. However, Petitioners choose to focus on the large companies that import massive amounts of CDI cocoa to
the U.S. and have been leaders in the industry campaign of nearly 20 years that has continued to make false assurances to
consumers and government regulators regarding their ineffective programs to end child labor in their supply chains.
Petitioners believe that if these large companies are, at long last, required to end their use of child labor, this critical massof companies in compliance will force industry-wide compliance.
74 19 C.F.R. § 19.42 (e)(emphasis added).
75 19 U.S.C. § 1307.

23

These actors have demonstrated that they do not have the will to make the necessarychanges of their own free will. They do, however, have the resources to implement significant
changes within 180 days if they are required to do so.

VI. Conclusion
Based on the ongoing investigation and the information provided herein, pursuant to C.F.R.
§ 12.42 (g), CBP should require the Cocoa Importers, within 180 days, to establish their cocoa
imports from CDI were “Not ... Manufactured in any Part” with Forced or Trafficked Child Labor.”
Petitioners request that their suggested WRO provided, at pages 2–3 above, be entered immediately.

Respectfully submitted,

INTERNATIONAL RIGHTS ADVOCATES
By Terrence P. Collingsworth
Executive Director
621 Maryland Ave NE
Washington, DC 20002
202-543-5811
tc@iradvocates.org
CORPORATE ACCOUNTABILITY LAB
By Charity Ryerson
Co-Founder and Legal Director
6214 N. Glenwood Ave
Chicago, IL 60660
773-346-5545
charity.ryerson@corpaccountabilitylab.org
CIVIL RIGHTS LITIGATION CLINIC
UC Irvine School of Law
By Paul Hoffman
Director
400 East Peltason, Suite 1000
Irvine, California 92697-8000
310-717-7373

24

EXHIBIT
1EXHIBIT
2

May 30, 2002
Hand-Delivered
Robert C. Bonner
Commissioner of Customs
US Customs Service
US Department of Treasury
1300 Pennsylvania Avenue, NW
Washington, D.C. 20229

Dear Mr. Bonner:
Based on 19 C.F.R., Chpt. 1, § 12.42 (b) (1997), we ask that the US Customs
Service initiate immediately an investigation and enforcement action under section
307 of the Trade Act of 1930, 19 U.S.C.§ 1307 (1997). With the clarification
provided by the 1997 Sanders provision that section 307 applies to products madewith “forced or indentured child labor,” there is with existing evidence an ample
basis for barring the entry of all cocoa from Ivory Coast because of the pervasive useof prohibited forms of child labor in the harvesting of cocoa beans. Below wecatalogue the substantial evidence gathered to date to demonstrate the pervasive useof forced child labor in cocoa harvesting in Ivory Coast. See 19 C.F.R.§ 12.42 (f).
The International Labor Rights Fund (ILRF) has previously petitioned the US
Customs Service regarding the importation of hand-knotted carpets from South Asia.
That case raised the issue of individual importer responsibility to certify labor
practices related to their goods. Building on this exchange, in the second part of thispetition we document the specific evidence that prohibited forms of labor necessarily
extend to all importers of cocoa from Ivory Coast because the tainted beans are
mixed with all shipments. Further, we describe the in-country supply chain in order
to illustrate that in fact it would reasonably be possible to institute a system of spot
inspections that would effectively verify compliance or non-compliance with thelaw.
We note that the government of Ivory Coast has already taken some steps tocombat the problem of bonded child labor. Moreover, we note that the major
importers of cocoa into the United States, as represented by the Chocolate
Manufacturers’ Association (CMA), have publicly proclaimed their intention to
independently certify conditions related to cocoa production. US Customs Service
actions to enforce US law would provide a much-needed dimension to existing
efforts to deal with the problem of forced child labor in cocoa production in Ivory
Coast.

1

(1) Full statement of the reasons for the belief.
The initial step in the section 307 enforcement process is that “[a]ny person ... who hasreason to believe” that imported products are made with prohibited forced or indentured childlabor shall provide to the Commissioner of Customs “(1) a full statement of the reasons for the
belief, (2) a detailed description or sample of the merchandise, and (3) all pertinent facts
obtainable as to the production of the merchandise abroad.”1 19 C.F.R.§ 12.42 (b). The
International Labor Rights Fund (ILRF) provides below the necessary information todemonstrate that cocoa from Ivory Coast is made with “forced or indentured child labor.”2
Moreover, as per the original 1930 law, to the extent that some workers are not child laborers,
but are nevertheless trafficked, there is ample evidence that many of the adult workers in this
sector are also forced or indentured laborers, and therefore much of the product harvested byadult workers is also prohibited under this statute.
Reports from Unicef (1998) and the International Labor Organization (ILO) (2001) haveindicated that children from the neighboring countries of Mali and Burkina Faso are beingbrought to Ivory Coast to harvest cocoa beans. Indeed the US Government itself has verified theexistence of child trafficking into Ivory Coast for the purpose of providing indentured childlabor. The US State Department estimates that there are approximately 15,000 children working
on cocoa, coffee, and cotton farms in the Ivory Coast.3 In June 2001, the ILO also confirmedthat child trafficking is widespread in West Africa.4 Shortly thereafter, various investigativepieces documented that children from the Ivory Coast’s neighboring countries were beingbrought to Ivory Coast to harvest cocoa beans, including children as young as nine years old.5
The background reports concur that these children are trafficked into Ivory Coast fromneighboring countries, and have no independent means of escape from employment or return totheir home countries. Based on the language of the Sanders Amendment, all of these situations
present “forced or indentured child labor.”
1

A fourth factor relating to a demonstration of alternative domestic production does not apply since there is noallegation that the prohibited forced or indentured child labor was “under penal sanctions.”
2

The operative language of the original version of section 307, passed in 1930, was that products made with
“convict labor or/and forced labor or/and indentured labor under penal sanctions” were barred from importation. The
only term defined in the statute itself is “forced labor” which is “all work or service which is exacted from any
person under the menace of any penalty for its nonperformance and for which the worker does not offer himself
voluntarily.” The Sanders amendment clarifies that the law now applies to “ forced or indentured child labor.” Thisis, in the context of the realities of child labor in places like Africa, a very broad definition. Child activists aroundthe world agree that children, by definition, are incapable of providing legally binding consent to an employment
agreement. Virtually all child labor that requires children to work full-time at the expense of their health and wellbeing must be considered forced. Further, in the country of concern, child labor is illegal. Any contract or otherarrangement requiring children to work in violation of law should be considered coerced and certainly not voluntary.
3

US Department of State. Cote D=Ivoire: Country Reports on Human Rights Practices 2000, February 23, 2001.

4

International Labor Organization. ADay of the African Child: June 16, 2001: ILO Reports on Child Trafficking inWest and Central Africa@, June 15, 2001.
5

Onishi, Norimitsu. AThe Bondage of Poverty that Produces Chocolate@, The New York Times, July 29, 2001.
Blunt, Liz. AThe Bitter Taste of Slavery@, BBC, September 28, 2000.

2

In May 2002, an independent investigator on contract to ILRF traveled to Ivory Coast toverify these reports. While in Ivory Coast, he held extensive meetings and interviews with thefollowing:
•
•
•
•
•
•
•
•
•
•

Government representatives at the federal level
Local government representatives in the countryside
Industry regulators
Agricultural technicians from the Ministry of Agriculture
The commercial director of the Autonomous Port Authority of Abidjan
Managers of the Autonomous Port Authority of San Pedro
Representatives of cocoa cooperatives and cocoa producing associations
Individual cocoa planters
Director of the biggest shipping company in Côte d’Ivoire
Human rights lawyers/activists.

The investigator also visited dozens of cocoa farms/plantations in the largest cocoa-producing
areas, namely in the Sasandra-Soubre-Gagnoa region in the southwest, where approximately
46% of the country’s cocoa is produced. Through numerous interviews, he was able to verify thefollowing:
•
•
•
•
•
•

During the high season, the demand for labor on the cocoa farms is extremely high, always
outstripping the labor resources of the typical farm owner and his immediate family.
Children are provided to employers by job brokers on a seasonal basis, during the highseason, to work on the cocoa farms.
The agreements that bind children to work on the farms are generally made between thefarm owner and an adult unrelated to the children, i.e. a labor broker.
A child for whom a farm owner has paid money is not allowed to leave the farm until after
the season.
Farm owners who pay money for children do not know the nature of the relationshipbetween the children and the adults to whom money is paid.
The children who work on the farms are usually from neighboring Mali and Burkina Faso.

This investigator confirmed that cocoa planters themselves readily acknowledged all theabove facts. The existence of child trafficking for the purpose of providing forced child labor is
not in dispute. Indeed, the Government of Ivory Coast has publicly acknowledged the problemof trafficked child labor in the cocoa industry, and has stated that it is taking steps to address the
problem. Our investigator was informed that in some cases, labor brokers had been arrested andimprisoned for their involvement in this illegal activity. However, despite these cases, thepractice continues.
The facts are so little in dispute that the importers themselves, as represented through the
CMA, have publicly acknowledged this problem and have voluntarily signed an industry
Protocol on the use of bonded child labor. The Protocol states, “Industry has publicly
acknowledged the problem of forced child labor in West Africa and will continue to commit

3significant resources to address it.”6 The Protocol called for the signing of a Joint Statement by
December 1, 2001, a Memorandum of Cooperation by May 1, 2002, and the establishment of a
Joint Foundation by July 2002. The Memorandum of Cooperation has been signed.
However, despite these paper initiatives and statements, the ILRF investigator found that noconcrete steps had been taken by even a single importer to communicate the offensiveness ofthese practices to their buyers or to the planters, or to verify that the practices had been
eliminated.
(2) A detailed description or sample of the merchandise.
Cocoa is the Ivory Coast’s single most important source of export income. For the 2001
season, Ivory Coast exported more than 1.4 million tons of cocoa compared with 270,000 tons ofcoffee, the country’s second most important export crop. About half of the country’s 15 million
people make a living directly from the cocoa industry. There are more than 450,000 cocoa
plantations across the country, with heavy concentration in the southwest.
Ivory Coast is the undisputed leader in the international arena of cocoa production,accounting for 43% of world production. Its West African neighbor Ghana is the world’s second
largest producer, but only matches a quarter of Ivory Coast’s cocoa output.
The major US importers are Nestle USA of Glendale, CA; Archer Daniels Midland of
Decatur, IL; Barry Callebaut of Montreal (representative office in Swedesboro, NJ); Blommer
Chocolate Co. of Chicago, IL and Cargill of Minneapolis, MN. The ILRF investigator was able
to verify that all of these companies have representative offices in Ivory Coast, except Blommer.
All companies except Blommer admit publicly to using cocoa from Ivory Coast. The twoleading chocolate manufacturers in the United States, Hershey and M&M/Mars, also haveadmitted publicly to using cocoa from Ivory Coast.7(3) All pertinent facts obtainable as to the production of the merchandise abroad.
Most planters are small growers with no access to capital, heavy equipment or their own
means for transporting the cocoa beans to the marketplace. Production is very labor-intensive,
depending almost exclusively on human labor. During the high season, when activity is reported
to be nonstop in the farms, the planters must contract with workers on a seasonal basis to provide
the necessary labor power to harvest and prepare the cocoa beans for sale. Liquidity being a
critical factor, planters typically sell their cocoa beans on a cash basis to “pisteurs,” or field
representatives, who go to the farms with trucks ready to haul the product away. Anyone withaccess to land can be a planter. There are no legal requirements or barriers to becoming aplanter/producer.
“Protocol for the Growing and Processing of Cocoa Beans and Their Derivative Products in a Manner thatComplies with ILO Convention 182 Concerning the Prohibition and Immediate Action for the Elimination of the
Worst Forms of Child Labor,” Chocolate Manufacturers’ Association, Vienna VA, September 2001, signed by Larry
Graham, President, Chocolate Manufacturers Association et.al. (add)67Chatterjee, Sumana. “What the Chocolate Industry Says,” Knight Ridder Newspapers, October 23, 2001.

4

The “pisteurs” are effectively the middlemen between the small-scale growers and the large
conglomerates who ultimately export the product. The “pisteurs” are on direct contract to thebuyers, with whose money they go directly to the farms and purchase the cocoa beans. There are
no legal requirements or barriers to becoming a “pisteur”. Buyers work directly for exporters,
who finance them. Not only do buyers obtain their financing from exporters, they must also be
accredited by the exporters. A buyer typically has an exclusive relationship with an exporter.
Legally, it is impossible to become a buyer without first obtaining accreditation from anexporter.
The major exporters of cocoa from Ivory Coast are all multinational corporations with officesin the port cities of Abidjan and/or San Pedro. All exporters must obtain a license from theGovernment of Ivory Coast. Normally, they obtain cocoa beans from their buyers and fromaccredited cooperatives. There are currently 47 cocoa exporters operating in Ivory Coast.
However, the biggest 10 dominate the sector, accounting for 80% of cocoa exports.
Among the top ten companies are Archer Daniels Midland (ADM), Nestlé and Cargill,which, in addition to obtaining cocoa beans from buyers and cooperatives, also engage in thepractice of buying directly from the planters. Ivory Coast laws forbid exporters from goingdirectly to the farms to purchase cocoa beans. The law, however, makes an exception forcompanies that engage in processing cocoa beans prior to export. Such companies are allowed to
go directly to the field, via their own “pisteurs”, and purchase cocoa beans from the planters. It
should be noted that all of the three companies mentioned above (ADM, Cargill and Nestlé) haveprocessing plants in Ivory Coast, thus allowing them to purchase cocoa beans directly from theplanters. These three companies are reported to exercise some quality control on plantersthrough these direct relationships. Moreover, all major exporters have ongoing contact withplanters through their accredited buyers.
Insofar as the minimum shipment of cocoa for export is required by law to be no less than
50,000 tons, and as most of the small growers are incapable of producing such a large volume ofthe product, each individual shipment of cocoa is likely to be made up of harvest from several
farms. It was verified by the ILRF researcher that the problem of trafficked, or forced, labor isso endemic to the industry in Ivory Coast that it is virtually certain that any given shipment
contains product harvested under forced labor conditions. Thus at present all cocoa from Ivory
Coast is suspect and should be barred under the statute.
Following the prima facie showing that this product is made with illegal child labor and are
therefore subject to the import ban of section 307 of the Trade Act of 1930, the Commissioner isrequired to conduct an investigation as per 19 C.F.R. § 12.42(d). Some form of investigation
should be conducted, and ILRF pledges to cooperate in gathering any additional information
deemed necessary. However, ILRF believes that this submission is sufficient for theCommissioner to apply section 307. The controlling regulation, 19 C.F.R. § 12.42 (e), provides
in pertinent part:“If the Commissioner of Customs finds at any time that information available
reasonably but not conclusively indicates that merchandise within the purview ofsection 307 is being, or is likely to be, imported, he will promptly advise all port directors

5accordingly and the port directors shall thereupon withhold the release of any suchmerchandise ...8 Once the Commissioner makes a finding as per 19 C.F.R.§ 12.42 (f),then all merchandise in the class is an “importation prohibited by section 307 ... unlessthe importer establishes by satisfactory evidence that the merchandise was not ...
manufactured in any part with the use of a class of labor specified in the finding.”
This standard from the controlling regulation clearly shifts the burden of proof to theimporter, making the most significant issue with respect to the enforcement process developing areasonable standard by which to determine whether a particular importer of cocoa should be
subject to the ban.
A recent paper by the US China Security Review Commission, focusing on theimplementation of the Tariff Act provisions vis a vis prison labor-made goods from China, hasrecommended that “all importers of goods entering the US should be required to certify, basedon good-faith efforts, that such goods were not made by prison labor.”9 This recommendation
could indeed be reasonably instituted vis a vis Ivory Coast cocoa, insofar as the major importersof the product, as represented through the Chocolate Manufacturers’ Association, have publicly
claimed that they intend to institute such certification. The major importers have some capacity
to institute an inspection program through their accredited buyers. Given the evidence
supporting the finding that forced child labor is used in the production of Ivory Coast cocoa, thelimited number of major importers, and the public claims of major importers of this product thatthey intend to certify the elimination of child labor in its production, full application of US law inthis matter should be a subject of little controversy.
We therefore urge immediate enforcement of section 307 of the Trade Act of 1930, 19
U.S.C.§ 1307 (1997). Please contact me if we can be of any assistance in providing further
information that would enable immediate and complete enforcement of this US law.
Sincerely,/s/Terry Collingsworth
Executive Director
cc: Senator Edward Kennedy
Representative Bernie Sanders
Secretary of Treasury Paul O’Neill

8

19 C.F.R.§ 19.42 (e)(emphasis added).

“US China Security Review Commission Policy Paper on Prison Labor and Forced Labor in China.” Washington,
DC: US China Security Review Commission, May 2002.
9

6

EXHIBIT
3

Slip Op. 05-110
UNITED STATES COURT OF INTERNATIONAL TRADE____________________________________x
International Labor Rights Fund,::
Global Exchange,:
and:Fair Trade Federation,:
Court No. 04-00543
Plaintiffs,:
Before: Judith M. Barzilay, Judgev.
:
United States,:
Defendant,:
and:Chocolate Manufacturers Association,:
Defendant-Intervenor.
:____________________________________x
OPINION[Defendant’s Motion to Dismiss granted.]
Decided: August 29, 2005
Terrence Collingsworth, (Derek Joseph Baxter), for Plaintiffs.
Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Jeanne E. Davidson,
Deputy Director, (Stephen C. Tosini), Trial Attorney, U.S. Department of Justice, Commercial
Litigation Branch, Civil Division, for Defendant.
Collier, Shannon, Scott, PLLC, (Paul C. Rosenthal), Jennifer E. McCadney, Michael R.
Kershow, for Defendant-Intervenor.

Court No. 04-543

Page 2BARZILAY, JUDGE:
Plaintiffs International Labor Rights Fund (“ILRF”), Global Exchange (“GX”), and Fair
Trade Federation (“FTF”) (collectively “plaintiffs”), all non-governmental organizations working
in the field of labor rights, filed suit under the Administrative Procedure Act (“APA”), 5 U.S.C. §701, et seq. Plaintiffs are seeking declaratory and injunctive relief against George Bush,
President of the United States, the Secretary of Homeland Security, the Commissioner ofCustoms and Border Protection (formerly the Commissioner of Customs), the Assistant Secretaryof Homeland Security for the Bureau of Immigration and Customs Enforcement (BICE), and theUnited States Department of Homeland Security (DHS) (collectively, “defendants”) for theirfailure and refusal to 1) investigate, as required by 19 C.F.R. § 12.42, credible allegations thatcocoa imported to the United States from Cote d’Ivoire1 is produced by forced child labor; 2)
require cocoa importers to show that their imports are not the product of forced child labor; and3) prohibit the importation of merchandise that is shown to be the product of forced child labor
as required by 19 U.S.C. § 1307 (1997), commonly known as section 307 of the Tariff Act of1930.
Defendants responded with a motion to dismiss Plaintiffs’ complaint pursuant to USCIT
R. 12(b)(1), claiming that all three lack standing to bring such claims before the court, that thecomplaint was untimely filed, and that the President cannot be a named defendant. The parties
have agreed to dismiss the President from this action.

1

Formerly known as the Ivory Coast. See CIA World Factbook, at
http://www.cia.gov/cia/publications/factbook/geos/iv.html

Court No. 04-543

Page 3Background

Section 307 of the Tariff Act2 and its accompanying regulations prohibit the importationof goods derived from forced labor when certain domestic economic preconditions have been
met. The regulations provide for “[a]ny person outside the Customs Service who has reason tobelieve that merchandise produced [by forced or indentured child labor] is being, or is likely tobe, imported into the United States” to “communicate his belief to any port director or theCommissioner of Customs” and in doing so, to also provide “detailed information as to the
production and consumption of the particular class of merchandise in the United States and thenames and addresses of domestic producers likely to be interested in the matter.” 19 C.F.R.
§12.42. Upon receipt of any such communication, the Commissioner of Customs is required to2Section 307 states:
Convict made goods; importation prohibitedAll goods, wares, articles, and merchandise mined, produced or manufactured
wholly or in part in any foreign country by convict labor or/and forced laboror/and indentured labor under penal sanctions shall not be entitled to entry at anyof the ports of the United States, and the importation thereof is hereby prohibited,
and the Secretary of the Treasury is authorized and directed to prescribe such
regulations as may be necessary for the enforcement of this provision. The
provisions of this section relating to goods, wares, articles, and merchandise
mined, produced, or manufactured by forced labor or/and indentured labor, shalltake effect on January 1, 1932; but in no case shall such provisions be applicable
to goods, wares, articles, or merchandise so mined, produced, or manufactured
which are not mined, produced, or manufactured in such quantities in the UnitedStates as to meet the consumptive demands of the United States.
“Forced labor”, as herein used, shall mean all work or service which is exacted
from any person under the menace of any penalty for its nonperformance and forwhich the worker does not offer himself voluntarily. For purposes of this section,
the term “forced labor or/and indentured labor” includes forced or indentured
child labor. 19 U.S.C. § 1307 (2002).

Court No. 04-543

Page 4

undertake an investigation that is warranted by the circumstances of the particular case. Id.
Pursuant to these regulations, plaintiffs submitted a petition regarding the use of child labor in
the cocoa industry of Cote d’Ivoire. This original petition, submitted on May 30, 2002, requested
that Customs investigate allegations of child labor pursuant to the implementing regulations, but
did not include information regarding production of cocoa in the United States or the names andaddresses of interested domestic producers – apparently because no significant domestic cocoa
production industry exists in this country. If Customs’ investigation were to reveal the use offorced labor on any of the cocoa plantations or farms in Cote d’Ivoire, plaintiffs argue, thendefendants would be required to determine whether the cocoa and any products derived from theillegal cocoa were imported to the United States. Id. Plaintiffs took action under these statutory
and regulatory directives because they claim conditions in Cote d’Ivoire warranted aninvestigation by Customs of forced child labor in the cocoa production industry.
Plaintiff ILRF is a Washington, D.C.-based advocacy organization dedicated to
improving global labor standards. Compl. at ¶¶ 15, 19. ILRF achieves its goal of promoting theenforcement of labor rights internationally through public education and mobilization, litigation,
legislation and other collaborative efforts with labor, government and other business entities.
Id. at ¶ 15. Plaintiff GX is a San Francisco-based human rights advocacy organization with overtwelve thousand dues-paying members and forty thousand associated members. Compl. at ¶ 19.
GX is dedicated to “promoting environmental, political and social justice globally.” Id. at ¶ 19.
In addition, GX operates four retail stores, as well as an internet-based sales operations, whichsell “fair trade” cocoa, which is produced without the use of forced child labor. Plaintiff FTF is a

Court No. 04-543

Page 5

Washington, D.C.-based association of “fair trade” wholesalers, retailers, and producers, whose
members are committed to providing living wages and better employment opportunities to
disadvantaged farmers and artisans worldwide. Id. FTF further claims that its “purpose is topromote the production and consumption of fair trade goods . . . and to represent the interests ofproducers, wholesalers, retailers, and importers of . . . Fair Trade Certified cocoa.” Id at ¶¶ 15,
19.
In a letter dated June 13, 2002, Customs accepted ILRF’s petition. Customs’ letter
communicated that it was pleased with plaintiffs’ offer to provide further information, andinvited plaintiffs and an independent investigator to meet with Customs officials to discuss thesubmitted evidence. This meeting apparently took place in July, 2002, although it is unclear
what came of it. See Def’s Reply Memo in Support of its Mot. to Dismiss (“Def’s Mot.”), at 3.
On June 30, 2002, a group of organizations, including GX, sent then-Secretary of the Treasury
Paul O’Neil a letter outlining the widespread use of child slavery in Cote d’ Ivoire’s cocoa
industry. This letter concluded by asking for “strict and immediate enforcement of the law asembodied under Section 307 of the Tariff Act of 1930.” In effect, the letter sent to Secretary
O’Neil reintroduced plaintiffs’ ultimate goal of invoking section 307 to prohibit the importationof products made with forced child labor.
Almost a year passed without any further discussion. Having no indication that Customs
in fact initiated an investigation or had taken any steps to do so, an ILRF researcher traveled toCote d’Ivoire to update its factual record. Plaintiff ILRF states that it confirmed the continued
existence of forced child labor in the Ivorian cocoa industry and sent another letter to theCourt No. 04-543

Page 6

Commissioner of Customs and Border Security on May 15, 2003, urging him to act on ILRF’s
original petition. Then, on June 30, 2003, with both GX and FTF participating in the petitioning
process, plaintiffs sent a letter to Customs asking that the law and regulations be enforced withrespect to this matter. Again receiving no response, Plaintiffs ILRF and GX filed suit in July
2003, in the District Court for the District of Columbia, seeking to compel Customs to enforce
section 307 and the accompanying regulations. In August, 2003, the District Court dismissed thecase on jurisdictional grounds. Plaintiffs then filed the present action in the Court ofInternational Trade in October of 2004, seeking once again to compel Customs to undertake its
ostensibly required investigation. Plaintiffs claimed they have confirmed the use of forced childlabor in Cote d’Ivoire’s cocoa industry, and request that the court issue an order, inter alia,
directing Customs to (1) investigate allegations of forced child labor in Cote d’Ivoire, and (2)upon identifying forced child labor in any imports of cocoa from Cote d’Ivoire, issue an orderprohibiting entry of such merchandise into the United States.
Discussion
Defendant moves to dismiss on two separate grounds: that plaintiffs’ action is untimely
and that plaintiffs lack standing. The court will discuss the dispositive issue of standing.
This court has jurisdiction pursuant to 28 U.S.C. § 1581(i)(3), (4), which grants the court
exclusive jurisdiction to review matters arising out of laws providing for embargoes or otherquantitative restrictions on the importation of merchandise for reasons other than the protectionof health and safety, and provides for enforcement with respect to such matters.

Court No. 04-543
I.

Page 7

Standing
Plaintiffs, as the parties invoking federal jurisdiction, have the burden of proof andpersuasion as to the existence of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561(1992); FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). The question of standing involves thedetermination of whether a particular litigant is entitled to invoke the jurisdiction of the federal
court in order to decide the merits of a dispute or of particular issues. Warth v. Seldin, 422 U.S.
490, 498 (1975). Where the standing of a litigant is placed in issue the court must undertake a
two-step analysis, which involves both the constitutional limitations and the prudential
limitations that circumscribe standing. Id. As a threshold matter, the court must insure that thelitigant satisfies the case or controversy requirements of Article III of the Constitution. Simon v.
Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 39 (1976). Once the court
determines that the litigant satisfies the constitutional aspects, it must consider whether any
prudential limitations restrain the court from exercising its judicial power. Gladstone, Realtors
v. Village of Bellwood, 441 U.S. 91 (1979). In determining standing, the court must undertake acareful judicial examination of a complaint’s allegations to ascertain whether the particular
plaintiff is entitled to an adjudication of the particular claims asserted. Allen v. Wright, 468 U.S.
737, 752 (1984).3A.

Constitutional Standing

The principal limitation imposed by Article III is that a litigant seeking to invoke the3

As mentioned above, defendant brought its challenge pursuant to USCIT R. 12(b)(1).
USCIT Rule 12 provides for dismissal on the basis of a lack of subject matter jurisdiction, andalso on the closely analogous motion to dismiss for failure to state a claim upon which relief canbe granted. USCIT R. 12(b)(5).

Court No. 04-543

Page 8court’s authority must show that he personally has suffered some actual or threatened injury as aresult of the allegedly illegal conduct of the defendant. Gladstone, 441 U.S. at 98. Article III
also requires the litigants to establish that there is a causal connection between the litigant’s
injury and the defendant’s conduct, and that this injury is likely to be redressed should the court
grant the relief requested. Allen, 468 U.S. at 751.
In the instant case, plaintiffs allege injuries to their organizational and programmaticinterests. These alleged injuries stem from the defendant’s failure to investigate the presence offorced child labor in Cote d’Ivoire’s cocoa industry. As part of their complaint, plaintiffs claimthat their reporting and monitoring requirements, and their interests in proposing legislation andpolicy initiatives were adversely affected. In effect, plaintiffs seek informational standing,claiming that defendant's failure to conduct its required investigation left them without
information vital to their organizational purposes. Despite defendant’s inaction, however,plaintiffs fail to satisfy the Article III minima of redressable injury-in-fact necessary to establish
constitutional standing.
Plaintiffs rely on the regulations promulgated pursuant to section 307 to support theirclaim of injury-in-fact. These requirements, found in Customs’ own regulations, state thefollowing:
Upon the receipt by the commissioner of Customs of any communication
submitted pursuant to paragraph (a) or (b) of this section [alleging forced labor]
and found to comply with the requirements of the pertinent paragraph, theCommissioner will cause such investigation to be made as appears to be
warranted by the circumstances of the case and the Commissioner or his
designated representative will consider any representations offered by foreigninterests, importers, domestic producers, or other interested persons.

Court No. 04-543

Page 919 C.F.R. § 12.24 (2004). Thus, plaintiffs argue, because Customs failed to initiate an
investigation into child slavery practices in Cote d’Ivoire, they themselves were forced to expend
resources to obtain this information in order to fulfill their organizational objectives.
Where a statute explicitly denies relief on the undisputed facts presented in a case,however, a party’s claim cannot lie under the regulations promulgated pursuant to the statute.
See Alexander v. Sandoval, 532 U.S. 275, 285-286 (2001) (citing Central Bank of Denver, N. A.
v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 173, (1994) (a “private plaintiff may notbring a [suit based on a regulation] against a defendant for acts not prohibited by the text of [thestatute]”)). Section 307 of the Tariff Act states that:[a]ll goods, wares, articles and merchandise mined, produced, or manufactured
wholly or in part in any foreign country by convict labor and/or forced labor
and/or indentured labor under penal sanctions shall not be entitled to entry at anyof the ports of the United States, and the importation thereof is hereby prohibited,
and the Secretary of the Treasury is authorized and directed to prescribe such
regulations as may be necessary for the enforcement of this provision. . . . but inno case shall such provisions be applicable to goods, wares, articles, or
merchandise so mined, produced, or manufactured which are not mined,
produced, or manufactured in such quantities in the United States as to meet theconsumptive demands of the United States.
19 U.S.C. § 1307 (emphasis added). This domestic consumptive demand exception provided forin the latter half of the provision is crucial given the facts of this case. The parties agree that nodomestic cocoa production industry exists in the United States sufficient to meet domestic
consumptive demand.4 In such instances, the statute expressly prohibits application of any of the4

At oral argument, counsel for defendant-intervenor Chocolate Manufacturers
Association, clarified that there are “minuscule” amounts of cocoa grown in the United States,
namely in Hawaii. Nevertheless, all parties agree that the United States’ considerable demandfor cocoa cannot be satisfied without imports.

Court No. 04-543

Page 10provisions found within it. As a result, the regulations promulgated pursuant to the statute,which merely direct how Customs will implement the directives of the statute, can neither be
invoked nor relied upon by plaintiffs in this case. Therefore, any injury relying on 19 C.F.R. §12.24 cannot be redressed by this court where the consumptive demand exception applies. See
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (holding that where prayed-for recourse tointeragency rule would not redress injury claimed by plaintiffs, burden of proof regarding
standing could not be met). In other words, because of the undisputed facts regarding the lack ofany significant domestic production of cocoa, section 307 essentially renders itself moot underthese facts.
In the first and seminal case brought pursuant to section 307, McKinney, et. al. v. UnitedStates Dep’t of the Treasury, et. al., 799 F.2d 1544 (Fed. Cir. 1986), this Court and the Federal
Circuit considered the constitutional and prudential standing of a group of plaintiffs which
included human rights non-governmental organizations who were situated similarly to theplaintiffs in this case. In McKinney, plaintiffs sought to exclude from entry into the United Statesvarious products mined, produced or manufactured in the Soviet Union, allegedly by convict,forced, or indentured labor. While both this Court and the Federal Circuit ultimately held thatthe plaintiffs all lacked standing, the Federal Circuit stated in dicta that the case law appeared tosupport the argument that informational injury – similar to that alleged in the present case – wassufficient to satisfy the injury requirement of Article III. The Federal Circuit then went on to findthat the McKinney plaintiffs were not within the zone of interest of section 307 – an issue this

Court No. 04-543

Page 11

court does not reach in the present case.5
Plaintiffs argue that two amendments to section 307, which were enacted after McKinney
was decided by the Federal Circuit, lessen the effect of the domestic consumption exception.
Plaintiffs refer to the Sanders and Harkin amendments, named for Representative Bernie Sanders
and Senator Tom Harkin, respectively. See Pub. L. No. 105-61, § 634, 111 Stat. 1272, 1316
(Oct. 10, 1997); Pub. L. No. 106-200, § 411 (May 18, 2000). Plaintiffs cite extensively to thelegislative history of these two amendments in support of the proposition that they represented abipartisan effort directing Customs to protect children working in indentured and forced labor
overseas.6 As defendant correctly argues, however, neither amendment as passed addressed,
modified, or repealed the consumptive demand exception to section 307. The Sanders
Amendment modified the Treasury, Postal Service and General Government Appropriations Act

5

In McKinney, there was ostensibly a domestic industry that could satisfy domestic
consumption demands for the various goods at issue in that case. Because in the instant case,however, plaintiffs and defendants agree that there is no domestic cocoa production industry,
there is no doubt as to the applicability of the domestic consumption exception. Thus, this court
need not reach the prudential standing inquiry that was determinative in McKinney. 9 CIT 315,
614 F. Supp. 1226, 1239, 1240-41 (1985); 799 F.2d at 1557.
6

The court notes that the record in this case included ample evidence that Customs took
this direction seriously. It issued several advisories to importers on the issue of forced childlabor and spent considerable agency resources on educational efforts which included strong
warnings against the importation of products produced by means of such forced labor. One such
publication stated “[a]busive child labor is one of the most serious worker and human rights
issues facing the world trading community.” U.S. Customs Service Advisory on International
Child Labor Enforcement, at 5. Because of this record, the court attempted to broker a settlement
between these parties reminding them of how much agreement there seemed to be on the core
issue – the need to eliminate abusive child labor. Regrettably, the government defendants were
unwilling to consider any suggestions toward settlement, representing to the court at theconference held in chambers on August 1, 2005 that agency priorities had changed after
September, 11, 2001.

Court No. 04-543

Page 12for Fiscal Year 1998, as well as subsequent appropriations bills, in order to ensure thatgovernment funds will not be used for the importation of forced or indentured child labor, as
determined by section 307. Specifically, the Sanders Amendment provides the following.
None of the funds made available in this Act for the United States Customs
Service may be used to allow the importation into the United States of any good,ware, article or merchandise mined, produced, or manufactured by forced orindentured child labor, as determined pursuant to Section 307 of the Tariff Act of1930 (19 U.S.C. § 1307).
Pub. L. No. 105-61, § 634, 111 Stat. 1272, 1316 (Oct. 10, 1997). The Harkin Amendment
clarified that references to “forced labor” and “child labor” in section 307 include “forced orindentured child labor.” Unfortunately for plaintiffs, however, neither Amendment altered thefact that section 307 subordinates human rights concerns to the availability of the goods at issue
by means of domestic production.7
Plaintiffs also argue that Customs has not uniformly applied the domestic consumption
exception in other section 307 cases, and that imports from other countries which are not derived
from forced labor should be considered as substitutes for domestic production in cases such as
this. Plaintiffs first cite to Customs’ action regarding the detention of bidi cigarettes from India,
which were found to be produced by indentured child labor, even though there was no domestic
production of bidi cigarettes. Pl’s Memo in Opp to Def’s Mot. to Dismiss, at 31, n.29 (citing Sen.
Rep. 106-500, 2000 WL 1517014 (June 2000)). As defendant correctly responds, however,7

As defendant points out, efforts to excise the domestic production exception from thetext of the statute have repeatedly proven unsuccessful. See, e.g., S.1684, 145 Cong. Rec.
S11879 (Oct. 4, 1999), available at 1999 WL 785710; Amendment No. 2371; 145 Cong. Rec.
S13431, S13449 (Oct. 28, 1999), available at 1999 WL 979384; Amendment No. 2502; Cong.
Rec. S13693, S13716 (Nov. 2, 1999), available at 1999 WL 992619.

Court No. 04-543

Page 13

Customs found a reasonable substitute produced domestically in sufficient quantities to satisfy
domestic demand. Def’s Reply in Support of Mot. to Dismiss, at 14 (citing China Diesel Imports,
Inc. v. United States, 18 CIT 515, 870 F. Supp. at 351, n.8 (1994) (“merchandise need not be
identical or even nearly so, but merely a substitute that would generally be acceptable to thepurchaser”)). In the case at hand, no reasonable domestic substitute has been identified.
Lastly, plaintiffs argue that voluntary non-domestic production of cocoa is available, andshould be counted towards the consumptive demand requirement. This argument is also
unavailing. The statutory language is clear in that it requires goods which are “mined, produced,
or manufactured in such quantities in the United States as to meet the consumptive demands of
the United States” in order for the exception not to apply. 19 U.S.C. §1307. For the court toread the availability of imports into this clear language would be an impermissible expansion of
the statutory text.
Because plaintiffs have not established a redressable injury-in-fact, they cannot satisfy therequirements of Article III standing. Thus, the court need discuss neither prudential standing nor
the timeliness of the instant action. Accordingly, it is hereby
ORDERED that this action is dismissed for lack of standing.

August 29, 2005_________________________New York, NY/s/ Judith M. Barzilay____________________________
Judith M. Barzilay, JudgeUNITED STATES COURT OF INTERNATIONAL TRADE____________________________________x
International Labor Rights Fund,::
Global Exchange,:
and:Fair Trade Federation,:
Court No. 04-00543
Plaintiffs,:
Before: Judith M. Barzilay, Judgev.
:
United States,:
Defendant,:
and:Chocolate Manufacturers Association,:
Defendant-Intervenor.
:____________________________________x
JUDGMENT ORDER
Upon reviewing Defendant’s USCIT Rule 12(b)(1) Motion to Dismiss, Plaintiff’s
response thereto, the parties’ supplemental briefs, and in consideration of other papers andproceedings herein, it is hereby
ORDERED that Defendant’s Motion be and hereby is granted; and it is further
ORDERED that this action is dismissed.

August 29, 2005_______________________________New York, NY/s/ Judith M. Barzilay______________________________
Judith M. Barzilay, JudgeNOTICE OF ENTRY AND SERVICEThis is a notice that an order or judgment was entered in the docket of this action,
and was served upon the parties on the date shown below.
Service was made by depositing a copy of this order or judgment, together with any
papers required by USCIT Rule 79(c), in a securely closed envelope, proper postage
attached, in a United States mail receptacle at One Federal Plaza, New York, New York
10278 and addressed to the attorney of record for each party at the address on the official
docket in this action, except that service upon the United States was made by personallydelivering a copy to the Attorney-In-Charge, International Trade Field Office, Civil Division,
United States Department of Justice, 26 Federal Plaza, New York, New York 10278 or to aclerical employee designated, by the Attorney-In-Charge in a writing filed with the clerk of thecourt.

Leo M. Gordon
Clerk of the Court

Date: __________________________

By: _____________________________
Deputy Clerk

EXHIBIT
4

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 1 of 38 Page ID #:1707

1 PAUL L. HOFFMAN (S.B.# 71244)

CATHERINE SWEETSER (S.B. # 271142)

2 Schonbrun Seplow

Harris & Hoffman, LLP

3 723 Ocean Front Walk

Venice, California 90291

4 Tel: 310-396-0731 / Fax: 310-399-7040

E-mail: hoffpaul@aol.com

5 Email: catherine.SDSHHH@gmail.com
6

TERRENCE COLLINGSWORTH

7 (DC Bar # 471830)

International Rights Advocates

8 621 Maryland Avenue NE

Washington, D.C. 20002

9 Tel: 202-255-2198
10
11
12

E-mail: tc@iradvocates.org
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

13 JOHN DOE I, Individually and on
14
15
16
17
18
19
20
21
22
23
24
25
26

)
behalf of Proposed Class Members; )JOHN DOE II, Individually and on )behalf of Proposed Class Members; ) Case No. CV 05-5133-SVW-MRW
JOHN DOE III, Individually and on )behalf of Proposed Class Members; )JOHN DOE IV, Individually and on ) SECOND AMENDED COMPLAINT FOR
behalf of Proposed Class Members; ) INJUNCTIVE RELIEF AND DAMAGESJOHN DOE V, Individually and on )1. Forced labor (Alien Tort Statute, 28
behalf of Proposed Class Members; )and JOHN DOE VI, Individually)
U.S.C. § 1350)
and on behalf of Proposed Class)
2. Cruel, inhuman, or Degrading
Members,)
Treatment (Alien Tort Statute, 28)
Plaintiffs,)
U.S.C. § 1350))
3. Torture (Alien Tort Statute, 28v.
))
U.S.C. § 1350)
NESTLÉ, S.A., NESTLÉ U.S.A., )NESTLÉ Ivory Coast, ARCHER)DANIELS MIDLAND CO.,) DEMAND FOR JURY TRIALCARGILL INCORPORATED)COMPANY, CARGILL COCOA, )CARGILL WEST AFRICA, S.A. ))Defendants.
)
)

27
28
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 2 of 38 Page ID #:1708

I.

1
2

1.

NATURE OF THE ACTION

Plaintiffs John Doe I, John Doe II, John Doe III, John Doe IV, John

3

Doe V, and John Doe VI (referred to herein as the “Former Child Slave” Plaintiffs)

4

are all former child slaves of Malian origin who were trafficked and forced to work5

harvesting and/or cultivating cocoa beans on farms in Côte d’Ivoire, which supply

6 cocoa beans to the Defendant companies named herein. The Former Child Slave
7 Plaintiffs bring this action on behalf of themselves and all other similarly situated
8 former child slaves of Malian origin against Defendants: Nestlé, S.A., Nestlé,
9 U.S.A., and Nestlé Côte d’Ivoire, S.A. (together as “Nestlé”); Cargill, Incorporated
10 (“Cargill, Inc.”), Cargill Cocoa, and Cargill West Africa, S.A. (together as
11 “Cargill”); and Archer Daniels Midland Company (“ADM”) (referred to
12 collectively as the “Chocolate Importers” or Defendants) for the forced labor and
13 torture they suffered as a result of the wrongful conduct either caused and/or aided
14 and abetted by these corporate entities.

Specifically, the Former Child Slave

15 Plaintiffs assert claims for child slavery/forced labor, cruel, inhumane or degrading
16 treatment, and torture under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350.
17

2.

The Former Child Slave Plaintiffs bring their ATS actions

18 in the United States because such claims cannot be maintained in their home
19 country of Mali as currently there is no law in Mali whereby such Plaintiffs can
20 seek civil damages for their injuries against the major exporters of cocoa operating
21 outside of Mali. Nor could claims be brought in Côte d’Ivoire as the judicial
22 system is notoriously corrupt and would likely be unresponsive to the claims of
23 foreign children against major cocoa corporations operating in and bringing
24 significant revenue to Côte d’Ivoire. It is also likely that both Plaintiffs and their
25 attorneys would be placed in danger following the civil unrest in Côte d’Ivoire and26 the general hostility by cocoa producers in the region where Plaintiffs were forced
27 to work. Further, the Former Child Slave Plaintiffs bring their claims in the United
28

1
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 3 of 38 Page ID #:1709

1

States as the United States has provided a forum for such human rights lawsuits

2with the passage of the ATS.

3

3.

The Former Child Slave Plaintiffs bring this action using pseudonyms

4

due to fear of retaliation against themselves and their families by those persons

5

who trafficked them into Côte d’Ivoire; the owners of farms on which they were6

enslaved; and by the local buyers, who are employees and/or agents of the

7

Defendants. Plaintiffs’ case not only threatens to expose criminalized elements

8

within the cocoa sector but also to dismantle the source of its significant profits,

9cheap labor procured through forced child trafficking. For this reason, Plaintiffs’

10

lives are in great danger as evidenced by the violence already wielded against other11

critics and investigators of corruption and child labor within the cocoa sector. For

12example, French-Canadian reporter Guy André Kieffer, who was investigating the13

criminal elements within the cocoa sector, disappeared and is presumed dead.

14

Other journalists investigating cocoa and child labor have also received death15

threats.

16

II.

17
18

4.

JURISDICTION AND VENUE

Pursuant to 28 U.S.C. § 1331, this Court has federal question

19

jurisdiction over this dispute pursuant to the ATS, 28 U.S.C. § 1350 for the alleged20

violations of international human rights law. The ATS provides federal

21

jurisdiction for “any civil action by an alien for a tort only, committed in violation

22of the law of nations or a treaty of the United States.”

23

5.

Venue and Personal Jurisdiction over each Defendant is proper in24this judicial district, and in the United States as a whole for the foreign Defendants,

25

because, as more fully detailed below, Defendants either own, lease, export to, or26

otherwise27

derivative products, to chocolate retailers in the United States and/or in California

28

2
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

conduct business activities, including the sale of cocoa and cocoa

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 4 of 38 Page ID #:1710

1

such that they maintain a general course of business activity within the United

2States, including California, either directly through their own activities or by virtue

3of their parent entities acting as their alter ego and/or agent.

4

III.

5
6
7

PARTIESA. Former Child Slave Plaintiffs
6.

Plaintiff John Doe I is an adult citizen of Mali currently residing near8

the city of Sikasso. He brings this action on behalf of himself and all other former

9

child slaves trafficked into Côte d’Ivoire from Mali for purposes of working and

10then forced to work on a farm and/or farmer cooperative that provided cocoa beans

11

to any one and/or more of the Defendants named herein.

127.

Plaintiff John Doe II is an adult citizen of Mali currently residing near13

the city of Sikasso. He brings this action on behalf of himself and all other former

14

child slaves of Malian origin trafficked into Côte d’Ivoire from Mali for purposes

15

of working and then forced to work on a farm and/or farmer cooperative that16

provided cocoa beans to any one and/or more of the Defendants named herein.

17

8.

Plaintiff John Doe III is an adult citizen of Mali currently residing

18

near the city of Sikasso. He brings this action on behalf of himself and all other19

former child slaves of Malian origin trafficked into Côte d’Ivoire from Mali for20

purposes of working and then forced to work on a farm and/or farmer cooperative

21

that provided cocoa beans to any one and/or more of the Defendants named herein.

22

9.

Plaintiff John Doe IV is an adult citizen of Mali currently residing

23

near the city of Sikasso. He brings this action on behalf of himself and all other24

former child slaves trafficked into Côte d’Ivoire from Mali for purposes of25

working and then forced to work on a farm and/or farmer cooperative that provided

26

cocoa beans to any one and/or more of the Defendants named herein.

27
28

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10.

1Plaintiff John Doe V is an adult citizen of Mali currently residing near2

the city of Sikasso. He brings this action on behalf of himself and all other former

3

child slaves of Malian origin trafficked into Côte d’Ivoire from Mali for purposes

4

of working and then forced to work on a farm and/or farmer cooperative that5provided cocoa beans to any one and/or more of the Defendants named herein.
11.

6

Plaintiff John Doe VI is an adult citizen of Mali currently residing

7

near the city of Sikasso. He brings this action on behalf of himself and all other8

former child slaves of Malian origin forced to work on a farm and/or farmer

9

cooperative that provided cocoa beans to any one and/or more of the Defendants10

named herein.

11
12

B. Former Child Slave Plaintiffs’ Class Action Allegations
12.

13

The Former Child Slave Plaintiffs bring this action individually, and14

pursuant to Fed. R. Civ. P. 23(a), 23(b)(2), and 23(b)(3), on behalf of the following

15

class:

16

13.

All individuals during the period 1996 through the present who reside17

or did reside in the country of Mali, West Africa, and who were trafficked from18

Mali to any cocoa producing region of Côte d’Ivoire and forced to perform labor as

19

children under the age of 18 on any farm and/or farmer cooperative within any

20

cocoa producing

21

geographical regions of Bouake, Bouaflé, Man, Daloa, Odienne, Oume, Gagna,

22

Soubre, Duekoue and San Pédro for the purpose of harvesting and/or cultivating23

cocoa beans that were supplied, either directly or indirectly, to any of the named

24

Defendants herein.

25

14.

26

region of Côte d’Ivoire, including but not limited to the

The class is so numerous that joinder of all members is impractical.

The Former Child Slave Plaintiffs know that there are thousands of class members.

27
28

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1
2

15.

There are questions of law and fact common to the class. Key

common questions include, but are not limited to, the following:

3a) Whether Plaintiffs and Proposed Class Members were4

unlawfully trafficked for purposes of forced child labor, in violation

5of International Labor Conventions 138 and 182, so as to work on

6

cocoa farms, which supplied cocoa beans to the named Defendants

7

herein?

8b) Whether Defendants caused and/or aided and abetted the9forced labor and torture imposed on Plaintiffs by either providing

10

logistical support to the supplier farms and/or failing to provide

11

sufficient logistical support and/or take adequate action to prevent and12stop such forced child labor in violation of international law, federal

13

law and California state law?

14

16.

The Former Child Slave Plaintiffs’ claims are typical of the claims of

15 the class. They seek redress for the same conduct that has affected all class
16 members and press legal claims which are the same for all class members.
17

17.

The Former Child Slave Plaintiffs named herein will fairly and

18 adequately represent the class. These Plaintiffs do not have conflicts of interest
19 with members of the class and have retained counsel who are experienced in
20 complex litigation, including class actions and international litigation, who will
21 vigorously prosecute this action.
22

18.

A class action is the superior method for adjudication of this23 controversy. In the absence of a class action, courts will be unnecessarily burdened
24 with multiple, duplicative individual actions, particularly in the case of Mali where
25 class claims are not recognized. Moreover, if a class is not certified, many
26 meritorious claims will go un-redressed as the individual class members are not
27 able to prosecute complex litigation against large defendant corporations.
28

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Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 7 of 38 Page ID #:1713

1
2

C. Chocolate Importer Defendants
19.

Defendant Nestlé, SA, is the world's largest food and beverage

3company involved primarily in the manufacture and sale of beverages, milk

4

products, chocolate, confectionery and biscuits. Based in Switzerland, it employs

5around 253,000 people and has factories or operations in almost every country in6

the world. Its stock is traded in the United States in the form of American

7

Depositary Receipts (ADR), which is a negotiable security representing ownership8of publicly traded shares in a non-US corporation. Nestlé’s ADRs are held through9

Citibank, N.A., a major U.S. banking institution, and together with its ADR

10

receipts and the sale of Nestlé brand products in the forum constitute significant

11

contacts with the United States, including the forum.

12

20.

Nestlé, USA is a wholly-owned subsidiary of Nestlé, SA.

13

Headquartered in California, it is one of the largest food and beverage companies

14in the U.S. with 21,000 employees nationwide, 42 manufacturing facilities, 6

15

distribution centers, and 58 sales offices across the country, including California. It

16

is one of the largest purchasers, manufacturers, and retail sellers of cocoa products

17in North America.

18

21.

Defendant Nestlé Côte d’Ivoire, SA (or Nestlé Ivory Coast) is a

19

subsidiary of Nestlé, SA. Its purpose within the Nestlé enterprise is to process20

cocoa beans for export globally, including North America and California

21

specifically.

22

22.

Defendant Archer-Daniels-Midland Company (ADM) is a publicly

23

held Delaware corporation with its principal place of business in Decatur, Illinois.

24

It is engaged in the business of procuring, transporting, storing, processing and25

merchandising agricultural commodities and products. This includes specifically26

the processing of cocoa beans from Côte d’Ivoire and the production of cocoa

27

liquor, cocoa butter, cocoa powder, chocolate and various cocoa compounds for

28

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SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 8 of 38 Page ID #:1714

1

the food processing industry primarily in the United States market, including2

California. In addition to providing cocoa products to California manufacturers

3

and processors, ADM owns and operates several processing plants in California

4which process rice, bakery mix and specialty ingredients.
23.

5

Defendant Cargill, Incorporated Company (“Cargill, Inc.”) is one of6

the largest privately held corporate providers of food and agricultural products and7

services worldwide with over 100,000 employees in 59 countries. Its activities

8

include cultivating and processing grain, oilseeds and other agricultural

9

commodities, including cocoa for distribution to food producers. Headquartered in

10

Minneapolis, it is a family business that is tightly controlled and centrally

11

managed. On information and belief, in 1992, the business was restructured to12ensure that managers making decisions about buying and selling commodities had

13ties to Cargill Headquarters in Minneapolis and would receive instructions from14

there.
24.

15

Cargill Cocoa is a subsidiary of Cargill, Inc. incorporated in

16

Pennsylvania. It is a major cocoa bean originator and processor. It offers a wide

17

range of high-quality cocoa powder, butter and liquor products under the Gerkens

18

and Wilbur brands to leading manufacturers of food, chocolate and confectionery

19

products worldwide, including processors and manufacturers of cocoa and cocoa

20

products in California. Products are sold through an international network of21

offices, agents and distributors. Its facilities include a production facility in Côte

22

d’Ivoire for the production of cocoa liquor, butter and powder and origination of23

cocoa beans.

24

partnerships with farmers in the Ivory Coast, including a program to train farmers

25

in crop protection.1

26

1

27
28

Cargill Cocoa & Chocolate North America is responsible for85 out of 101 farmer cooperatives in Cote d’Ivoire are involved in their crop
protection initiative “Yiri”.
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SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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125.

Cargill West Africa, SA is a subsidiary of Cargill, Inc. and a member

2of the Cargill Group headed by Cargill, Inc. Formed in 1986, its purpose within the3

Cargill Group is to process and/or export cocoa beans supplied to it by farms

4

and/or farmer cooperatives in Côte d’Ivoire. Upon information and belief, Cargill

5

West Africa, SA exports cocoa to the United States, including California, either

6

directly or indirectly through other Cargill Group affiliates.

78
9

D. Unknown Corporate Defendants
26.

Plaintiffs are currently unaware of the true names and capacities of

10

Defendants sued herein as Corporate DOES 1-10, and therefore sue these

11

Defendants by using fictitious names. Plaintiffs will amend this complaint to12

allege their true names and capacities when ascertained. Upon information and13

belief each fictitiously named Defendant is responsible in some manner for the14

occurrences herein alleged and that the injuries to Plaintiffs herein alleged were15

proximately caused in relation to the conduct of the named Defendants, as well as

16

Corporate Does 1-10.

17

IV.

18
19

27.

AGENCY

Plaintiffs contend that each of the subsidiaries identified herein is and20

was, at all relevant times, the agent of the parent companies identified herein.

21

Specifically, the parent entities control the subsidiaries’ operations, particularly

22with respect to the sourcing, purchasing, manufacturing, distribution, and/or

23

retailing of cocoa and cocoa derived products from the Côte d’Ivoire.

24
25
26
27
28

28.

Plaintiffs further contend that each of the parent entities identified

herein control and/or have the ability to control their subsidiaries’ actions with
http://www.cargillcocoachocolate.com/sustainability/cocoa-promise-in-action/yiriplus-program/index.htm
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respect to labor practices on the farms and/or farmer cooperatives from which2cocoa products are sourced.

3

29.

Plaintiffs are informed and believe that at all material times each of4

the parent defendants and their relevant subsidiaries were the agent or otherwise

5

working in concert with each other and that each such subsidiary was acting within

6

the course and scope of such agency or concerted activity. To the extent that said

7

conduct was perpetrated by certain subsidiary defendants, the parent defendant

8

corporations confirmed and ratified the same.

9

V.

10
11

30.

ALTER EGO

Plaintiffs contend that each of the subsidiaries identified herein is and12

was, at all relevant times, the alter-ego of the parent companies identified herein.

13

Specifically, the parent entities control every aspect of the subsidiaries’ operations,

14

particularly with respect to the sourcing, purchasing, manufacturing, distribution,

15

and/or retailing of cocoa and cocoa derived products, and have used them merely16

as conduits for the receipt or transfer of funds and/or products with respect to17

cocoa products derived from the Côte d’Ivoire.

18

31.

Upon information and belief, the subsidiary and parent corporations

19

named herein have common ownership, common board of directors, are20

inadequately capitalized for the risks at hand, and have failed to observe corporate

21

formalities with respect to their operations. The inherent and pervasive failure to22

maintain separate identities constitutes improper conduct and disrespects the23

privilege of using the corporate form to conduct business.
VI.

24
25

32.

AIDING AND ABETTING

Côte d’Ivoire is a country struggling to recover from years of civil

26

conflict. Active hostilities ended in January 2003, leaving the country divided into

27

three zones of control: the government-controlled south, the rebel-held north and28

9
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 11 of 38 Page ID#:17171

the Zone of Confidence, which was formally patrolled by international troops.

2

Although several peace agreements have been signed, and the Zone of Confidence3

dismantled, acts of violence continue. Côte d’Ivoire’s cocoa-producing regions,4

which lie mostly with the government controlled southern zone, are at the heart of5

the Ivorian conflict. In this conflict, the cocoa hierarchy has been described by the

6International Crisis Group as an “Enron-type structure” of front companies with7

secret bank accounts used to transfer funds with multiple layers of insulation

8

between the criminal acts and their eventual beneficiaries.

933.

It is in this often lawless and clandestine backdrop that Cote d’Ivoire

10

has emerged as the largest exporter of cocoa in the world, providing 70% of the11

world’s supply. A majority of this cocoa is imported to the US by the named

12

Defendants herein. Indeed, journalist Carol Off explains in her 2006 book “Bitter

13

Chocolate: Investigating the Dark Side of the World’s Most Seductive Sweet” that14

the “dirty work” of buying and selling cocoa beans in this conflict ridden country

15

has become the domains of large multinationals such as Defendants Nestlé, ADM,

16

and Cargill and that since the 1990s, Côte d’Ivoire cocoa production has been

17

controlled by these companies with the unilateral goal of finding the cheapest

18

sources of cocoa.

19

34.

Defendants ADM and Cargill are headquartered in and have their

20

main management operations in the U.S., and every major operational decision by21

both companies is made in or approved in the U.S. At all times relevant to the22

injuries to the Plaintiffs, Defendants ADM and Cargill had complete control over23

their cocoa production operations in Côte d’Ivoire, and they regularly had

24

employees from their U.S. headquarters inspecting their operations in Côte

25

d’Ivoire and reporting back to the U.S. headquarters so that the U.S.-based

26

decision-makers had accurate facts on the ground. Defendants ADM and Cargill

27
28

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had the ability and control in the U.S. to take any necessary steps to eradicate the2practice of using child slaves to harvest their cocoa in Côte d’Ivoire.

3

35.

Defendant Nestlé established a major operation in the U.S., which is a

4

key market for Nestlé cocoa products. To promote, expand and protect this market,

5

Nestlé established Nestlé, USA as a wholly-owned subsidiary of Nestlé, SA. This

6

subsidiary is now one of the largest food and beverage companies in the U.S. with7

21,000 employees nationwide, 42 manufacturing facilities, 6 distribution centers,8

and 58 sales offices across the country. It is one of the largest purchasers,

9

manufacturers, and retail sellers of cocoa products in North America. Every major

10

operational decision regarding Nestlé’s U.S. market is made in or approved in the

11

U.S. At all times relevant to the injuries to the Plaintiffs, Nestlé had complete

12

control over its cocoa production operations in Côte D’Ivoire, and had the ability

13

and control in the U.S. to take any necessary steps to eradicate the practice of using

14

child slaves to harvest its cocoa in Côte D’Ivoire. Nestlé regularly had employees

15from their Swiss and U.S. headquarters inspecting their operations in Côte D’Ivoire

16

and reporting back to these offices so that the U.S.-based decision-makers had

17

accurate facts on the ground.

18

36.

The history and methodology of the exploitation of child slaves in19

Côte D’Ivoire by the Defendants and other multinationals is virtually undisputed.

20

Defendants were able to obtain an ongoing, cheap supply of cocoa by maintaining

21

exclusive supplier/buyer relationships with local farms and/or farmer cooperatives

22

in Côte d’Ivoire. Through these exclusive supplier/buyer relationships, maintained

23

in the form of memorandums of understanding, agreements, and/or contracts, both

24

written and oral, Defendants are able to dictate the terms by which such farms

25

produce and supply cocoa to them, including specifically the labor conditions

26

under which the beans are produced.

27
28

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37.

Defendants control such conditions by providing local farmers and/or

2

farmer cooperatives with inter alia ongoing financial support, including advance3

payments and personal spending money to maintain the farmers’ and/or the4

cooperatives’ loyalty as exclusive suppliers; farming supplies, including fertilizers,

5

tools and equipment; training and capacity building in particular growing and6fermentation techniques and general farm maintenance, including appropriate labor

7

practices, to grow the quality and quantity of cocoa beans they desire. The training

8

and quality control visits occur several times per year and require frequent and9ongoing visits to the farms either by Defendants directly or via their contracted

10

agents.

11

38.

Among other countries, Defendant Nestlé was directly involved in the12purchasing and processing of cocoa beans from Côte d’Ivoire. Among its exclusive

13

supplier/buyer relationships were agreements with suppliers Keita Ganda and Keita

14

Baba from plantations in Daloa; Lassine Kone from plantations in Sitafa. Among15

other areas, Defendant Nestlé processed the cocoa near Odienne in Côte d’Ivoire.

16

39.

Defendant Cargill has a direct presence in Côte d'Ivoire cocoa farms.

17

Carol Off notes that Cargill is possibly the largest privately owned corporation in18

the world and that its influence over the food we eat, in terms of where it comes

19

from and how it is produced, is staggering. Among its exclusive supplier/buyer

20

relationships are Dôté Colibaly, Soro Fonipoho, Sarl Seki, Lenikpo Yéo (alias “the21

Big One”) from which 19 Malian child slaves were rescued, Keita Ganda, and22

Keita Hippie, who produce the bulk of the cocoa in the Bouaflé region.

23

40.

Cargill’s Côte d’Ivoire Country Webpage states that in 2000/01,

24

Cargill opened two up-country buying stations in Daloa and Gagnoa in the western25

cocoa belt, and that Cargill's Micao cocoa processing plant has obtained ISO 9002

26

certification, which is a system of quality standards for food processing from

27
28

12
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 14 of 38 Page ID#:17201sourcing through processing that inherently requires detailed visits and monitoring

2of farms.

3

41.

Defendant ADM was also directly involved in the purchasing and4

processing of cocoa beans from Côte d’Ivoire. Among its exclusive suppliers is a5

farmer cooperative known as SIFCA. In a 2001 article found in Biscuit World,

6

ADM explains that its acquisition of SIFCA in Côte d'Ivoire “gives ADM Cocoa

7

an unprecedented degree of control over its raw material supply, quality and8handling.” In the same article, an ADM executive states that “ADM Cocoa can9deliver consistent top quality products by control of its raw materials,” and that

10

“ADM is focused on having direct contact with farmers in order to advise and11

support them to produce higher quality beans for which they will receive a12premium.”

13

42.

ADM’s 2004 Cocoa Webpage openly states that ADM Cocoa has a

14“strong presence in origin regions,” and in a section entitled “Farmers as Partners,”

15

ADM further states that “[t]he success of the thousands of small, family-owned

16

farms on which cocoa is typically grown is vital to the cocoa industry. That is why

17

ADM is working hard to help provide certain farmer organizations with the18knowledge, tools, and support they need to grow quality cocoa responsibly and in a19sustainable manner . . . ADM is providing much needed assistance to organizations

20

representing thousands of farmers and farming communities. These efforts are21

making an impact at the farm level.”

22

43.

The ADM Cocoa Brochure, states that “[t]hrough its support of the23

World Cocoa Foundation, the European Cocoa Association, the US Chocolate

24

Manufacturers Association and other programs, ADM is actively involved in long-25

term efforts to ensure that cocoa is grown responsibly and sustainably. Such efforts

26

include research into environmentally sound crop management practices, plant27

breeding work to develop disease-resistant varieties and farmer field schools to

28

13
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 15 of 38 Page ID#:17211transfer the latest know-how into the hands of millions of cocoa farmers around the2world. Starting from the cocoa growers through to the world's top food and3beverage manufacturers, ADM Cocoa is committed to delivering the best in

4

product quality and service at every stage.”

544.

As part of their ongoing and continued presence on the cocoa farms in

6

Côte d’Ivoire for purposes of quality control, pesticide eradication, cultivation

7

assistance, harvesting, and packing and shipping, among other activities and8

assistance to the farmers, Defendants, through U.S.-based employees, had first-

9

hand knowledge of the widespread use of child labor harvesting cocoa on the farms

10

they were working with and purchasing from.

11
12

45.

In its 10-K securities filings, ADM explicitly stated that research on

the cocoa industry and on development was based in Milwaukee, Wisconsin.

13

46.

ADM processed the cocoa in facilities in Massachusetts, New Jersey,

14

and Wisconsin.

15

47.

Defendants also had knowledge of the widespread use of child labor16

harvesting cocoa on the farms they were working with and purchasing from based

17on the numerous, well-documented reports of child labor by both international and

18

U.S. organizations.

19

48.

The U.S. State Department, the International Labor Organization

20(ILO), and UNICEF, among others, have confirmed since the late 1990s the21

existence of child slavery with documented reports and statistics. Notable non-22

governmental organizations have also independently confirmed that many, if not

23

most, of the children working on Ivorian cocoa plantations are being forced to24

work as slaves without any remuneration.

25

49.

In 1997, UNICEF reported that children from the neighboring

26

countries of Mali and Burkina Faso are being trafficked to Côte d’Ivoire to harvest

27

cocoa beans. See Carol Bellamy, The State of the World's Children 1997: Focus

28

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1

on Child Labour, Oxford University Press for UNICEF (1996). The ILO estimates

2 there are 378,000 children working in Côte d’Ivoire in various sectors of the
3 economy.

International Programme on the Elimination of Child Labour, ILO,

4 Combating Trafficking in Children for Labour Exploitation in West and Central
5 Africa (2001). The U.S. State Department has also estimated that there were at
6

least 15,000 child laborers working on cocoa, coffee, and cotton farms in 2004.

7

Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, Country

8 Reports on Human Rights Practices, 2004: Cote d’Ivoire (2004).
950.

Despite the well-documented use of child labor on cocoa farms in

10 Côte d’Ivoire, Defendants not only purchased cocoa from farms and/or farmer
11 cooperatives which they knew or should have known relied on forced child labor in
12 the cultivating and harvesting of cocoa beans, but Defendants provided such farms
13 with money, supplies, and training to do so with little or no restrictions from the
14 government of Côte d’Ivoire. Upon information and belief, several of the cocoa
15 farms in Côte d’Ivoire from which Defendants source are owned by government
16 officials, whether directly or indirectly, or are otherwise protected by government
17 officials either through the provision of direct security services or through18 payments made to such officials that allow farms and/or farmer cooperatives to
19 continue the use of child labor.
20

51.

Defendants, because of their economic leverage in the region and

21 exclusive supplier/buyer agreements, each had the ability to control and/or limit
22 the use of forced child labor by the supplier farms and/or farmer cooperatives from
23 which they purchased their cocoa beans. The Defendants, based in the U.S., and24 focused on protecting their U.S. market share following increased negative
25 campaigning in the U.S. against their use of child labor in harvesting cocoa in
26 West Africa, decided in the U.S. to do little or nothing to stop the exploitation and27 abuse of child workers and instead merely issue promises and policy statements in
28

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the U.S. to falsely assure the U.S. consumers that they were committed to putting

2

an end to child slavery in their cocoa production. The three Defendants each made3

specific and false assertions in the U.S. to U.S. consumers to deny that they were4

aiding and abetting child slavery, which allowed each of them to continue aiding

5

and abetting child slavery with no measurable loss of U.S. market share.

6

52.

Defendant Nestlé published in the U.S. in English and targeting the7

U.S. market its “Standards of Business Conduct,” which state that “Nestlé is8against all forms of exploitation of children. Nestlé does not provide employment

9

to children before they have reached the age to have completed their compulsory

10

education . . . and expects its suppliers to apply the same standards. Nestlé abides

11

by national laws in all countries in which it has operations and complies with the

12International Labour Organisation (ILO) Convention 138 on Minimum Age for

13

Employment and the ILO Convention 182 on the Worst Forms of Child Labour.”14

Nestlé also informed U.S. consumers in the U.S. that it requires all of its

15

subcontractors and Outsourcing Contractors to adhere to Nestlé’s Corporate

16

Business Principles, and chooses its Suppliers based on, inter alia, their “minimum

17

corporate social responsibility standards.”

18

53.

Nestlé’s 2006 “Principles of Purchasing,” published in the U.S. in

19

English and targeting the U.S. market, states “purchasing should, wherever20

possible, be part of the Supply Chain . . . and that Strategic Buyers perform21

strategic activities such as market research or analysis [and] supplier profiling and22

selection.”23

assistance in crop production.” Under the section, “Traceability,” Nestlé states

24“[t]raceability includes tracking inside our company supply chain, i.e. from the25

reception of raw and packaging materials, production of finished products to26

delivery to customers.”

27

materials is of the utmost importance to Nestlé.

28

Under the section “Raw Materials,” Nestlé states it “provides

Indeed, Nestlé states that “[t]raceability of incoming
In dealing with suppliers,

16
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1

Purchasing must insist on knowing the origin of incoming materials and require2

suppliers to communicate the origin of their materials.” Nestlé’s Principles of3

Purchasing also states that it “actively participate[s] as the first link in an integrated

4

supply chain;” that it “develop[s] supplier relationships;” and that it “continually5monitor[s] the performance, reliability and viability of suppliers.”

6

54.

Nestlé’s 2005 Webpage on Suppliers Management also discusses the7

importance of the Nestlé Supply Chain for production operations. “The Nestlé

8

Quality System covers all steps in the food supply chain, from the farm to the9consumer of the final products. Quality assurance activities are not confined to

10

production centers and head offices. They include working together with producers

11

and suppliers of raw . . . materials.”

12

55.

Nestlé’s Commitment to Africa Brochure, published in the U.S. in

13

English and targeting the U.S. market, further states that “[w]hile we do not own

14

any farmland, we use our influence to help suppliers meet better standards in15

agriculture. . . . Working directly in our supply chain, we provide technical16

assistance to farmers.” Nestlé goes on to state that the “[s]upport provided to17

farmers ranges from technical assistance on income generation to new strategies to18

deal with crop infestation, to specific interventions designed to address issues of19child labour.” “Specific programmes directed at farmers in West Africa include

20

field schools to help farmers with supply chain issues, as well as a grassroots

21'training of trainers' programme to help eliminate the worst forms of child labour.”

22

56.

Defendant Nestlé published in the U.S. in English and targeting the23

U.S. market “The Nestlé Commitment on Child Labour In Agricultural Supply

24

Chains”

25(http://www.nestle.com/assetlibrary/documents/library/documents/corporate_social

26_responsibility/nestle-commitment-child-labour.pdf) stating:

27
28

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SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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1• “Nestlé is against all forms of exploitation of children, and is firmly

2committed to actions to eradicate child labour from its agricultural supply

3

chains, in line with our commitments in the Nestlé Corporate Business4

Principles.”5
6
7• “Nestlé is committed to work with all relevant stakeholders . . . to address
child labour.”• “Nestlé sources agricultural crops from over 5 million farmers, and is

8

exposed to the potential for child labour and the worst forms of child labour

9

across a range of commodities and countries.”

10• “The Commitment has . . . been prepared by Nestlé to specifically guide and

11align its efforts to tackle child labour in its agricultural supply chains.”

12

57.

13
14

Defendant Nestlé published in the U.S. in English and targeting the

U.S. market “The Nestlé Supplier Code,” which states:• The Nestlé Supplier Code “defines the non-negotiable minimum

15

standards that we ask our suppliers and their sub-tier suppliers to respect

16

and adhere to when conducting business with Nestlé.”17• The supplier code “helps the continued implementation of our commitment18

to international standards such as the OECD Guidelines for Multinational

19Enterprises, the UN Guiding Principles on Business and Human Rights, the20Core Conventions of the International Labour Organization (ILO) and the 10

21

Principles of the United Nations Global Compact . . . .”22

• “The Standards of the Code set forth expectations for the Supplier for whom23

Nestlé does business, including their parent, subsidiary, or affiliate entities,

24

as well as all others with whom they do business including all employees

25(including permanent, temporary, contract agency and migrant workers),

26

upstream suppliers and third parties.”

27
28

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1• The first “pillar” of the Nestlé Supplier Code is Human Rights. Included in2

this is a prohibition against child labor.

3

58.

Defendant Nestlé, by publishing in the U.S. in English and targeting4

the U.S. market the various statements discussed above, intended to demonstrate to5

the U.S. market that it had made a decision to prevent child labor harvested cocoa

6from reaching the U.S. market by using its control over its cocoa suppliers to7

prevent child slaves from harvesting Nestlé’s cocoa. While Nestlé admitted its

8control and ability to achieve this, it failed to take the promised action so that it

9

could protect its U.S. market while also continuing to benefit from the cost savings

10of aiding and abetting child slavery.

11

59.

Defendant Cargill's Position Paper on cocoa industry labor, published12

in the U.S. in English and targeting the U.S. market, explicitly states that13“[a]busive treatment towards children in agriculture or in any other industry is not

14

acceptable.” Cargill’s International Code of Conduct, also published in the U.S. in

15

English and targeting the U.S. market, states that Cargill will “comply with the16letter and spirit of all applicable . . . laws designed to accomplish equal and fair

17

opportunities in employment.” Cargill Cocoa Promise, available at18

at:http://www.cargillcocoachocolate.com/wcm/groups/public/@ccc/@all/documen

19

ts/document/na31657361.pdf). The International Code of Conduct also promises:

20• “We form close, supportive relationships with farmers and farmer

21

organization, providing them with solutions that they can own, and giving

22

them the skills and knowledge to implement programs that will make a23

positive and meaningful change.” (p. 2)

24• “Cocoa has always been a crop that offered economic opportunity. But now,

25

with many farms at the end of their productive lifecycle, cocoa productivity

26

is under pressure. The majority of smallholder cocoa farms, particularly in

27West Africa, were established 20–30 years ago. Cocoa is a tree crop and the28

19
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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trees have aged and become less productive; soil nutrient levels have2

decreased and pests and diseases affect both cocoa pod and overall tree3

health. How can we solve this together?2 By working with farmers to

4dramatically improve knowledge and adoption of good agricultural

5

practices – whether that is with the appropriate use of weeding and6pruning techniques or the development of safer harvesting practices. By

7

improving farmers’ incomes and providing better services for farmers,

8

their families and their communities. And by providing farmers with9

the planting materials and other inputs they need to invest in their

10

farms and prepare for a successful future. It’s all part of the Cargill

11

Cocoa Promise, which we are rolling out in six origin countries

12

according to local needs.

13• “We are all too aware of the unique challenges faced in each region, and14

although West Africa – and in particular, Côte d’Ivoire . . . .” (p. 5)

15• “Increasingly, reporting needs to incorporate clear proof of tangible change.

16

That is why we are building on the measurement systems we have17

already established, developing comprehensive indicators to assess the18

impact of our actions and demonstrate the improvement generated by

19

programs on the ground. This allows us to track both inputs (such20

as the number of farmers trained and volumes certified) and outputs (such21

as improved knowledge of pest and disease control management and solid

22

entrepreneurial skills). The next step is to consistently measure the impact

23of all of our activities on a broader scale, using impact assessment

24

frameworks and the skills of our existing in-house research and25

consultancy team. When combined with anecdotal material, this is the kind

26
27
28

2

Emphasis added.
20
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 22 of 38 Page ID#:17281of information that cocoa and chocolate manufacturers can use to engage

2

and activate consumer demand in a credible way. It means consumers can3understand the current situation in origin countries, as well as the4

difference that they can make by buying sustainable products – creating

5

a much more compelling proposition.” (p. 10)• Cargill claims they are “working to protect the rights of children.” (graphic

6

on p. 11)

7

• “Working to Promote and protect the rights of children:

8o . . . [W]e need to raise awareness of child labor issues and910children’s rights in farming communities. The most effective way

11

for us to do this is through farmer training. That is why we have

12

worked in partnership with the International Cocoa Initiative (ICI), a

13

leading organization addressing child labor issues in West African14

cocoa-growing communities, to develop a specific training module.”

15

o “In Côte d’Ivoire, 425 extension agents received four days of

16

intensive training from ICI on the issue of child labor and17

sensitization, equipping them with the skills to effectively train

18

farmers. The project will reach more than 70,000 cocoa producers

19

before 2016.”

20

o In partnership with the International Cocoa Initiative (ICI), 8,720

21

farmers were trained in 2013 to protect and improve the rights of

22children as an integrated part of our farmer training approach. In total

23

70,000 will be trained.
o According to Nick Weatherill, Executive Director, International

24

Cocoa Initiative (ICI): “Working with Cargill and ANADER3, we’ve

25
26
27
28

3

Agence nationale d'appui au développement rural, (http://www.anader.ci/#close).
21
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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been able to ensure that thousands of farmers get specialist training on

2

child labor issues to thousands of farmers. Cargill’s Farmer Field

3

Schools gives us, and the ANADER agents we train, unrivalled access4

to farmers in an established learning environment.”

5• “Supplying smallholders farmers with the knowledge, inputs, and finance6

they need to make good decisions and run a successful farm over the long7

term.”

8o With the right investment, cocoa productivity can increase

9

significantly. Already, in Côte d’Ivoire, we have seen that yields of10over 800–1,000 kilograms per hectare are achievable in a smallholder

11

context. In many cases, this is a 100% increase of current yields. The

12

appropriate use of inputs such as fertilizers and crop protection help

13

farmers to maximize current cocoa yields without compromising the14

future of their farms or local environments. We help them to gain

15

access to the inputs, as well as the financing, for fertilizers and16

crop protection, to invest in their farms and plan for the future.

17

Cargill’s extensive on-the-ground networks include not just18

partnerships with farmer organizations, but also buying stations

19

in all the major cocoa- growing regions. Together, these form an

20

efficient delivery model to store and distribute and provide access to21

fertilizer, crop protection and planting materials to farmers. (p. 22)

22

Cargill has numerous other releases that contain similar representations that it23

has complete control of its supply chain and boasts that it has been recognized

24

in this area. All of these policies, as well as the actual decisions that resulted in

25

Cargill continuing to obtain cocoa harvested by child laborers, were made in the

26

U.S. In addition, Cargill’s recent announcement to close a plant in Lititz

27

Pennsylvania stated that “the company’s vast administrative, research and28

22
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

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development and marketing resources” are located in Minneapolis, where it

2maintains its corporate headquarters.

3

60.

Defendant ADM’s Business Code of Conduct and Ethics, known as

4“The ADM Way,” states with respect to Child Labor that “ADM will not condone

5

the employment or exploitation of legally underage workers or forced labor and6will not knowingly use suppliers who employ such workers or labor.” ADM

7further states that its Code, including its Child Labor provision, is “a statement of8

the values to be recognized in the conduct of ADM’s business by its employees,

9

officers, directors and other agents . . . It is [also] the responsibility of all . . . its

10

subsidiaries worldwide to comply with this Business Code of Conduct and Ethics .

11. . [and that] the values explained in this [Code] are to be consistently applied

12

throughout the world in ADM’s business, not only when it’s convenient or

13

consistent with other business objectives, but in all situations.” ADM also asserts

14

that it “will deal fairly with its customers, suppliers and business partners [and15

that] no ADM representative should take unfair advantage of anyone through . . .

16misrepresentation of material facts or any other unfair dealing practice.”

17

61.

Defendants’ assertions, published in the U.S. in English and targeting18

the U.S. market, make clear that Defendants were able to make decisions in the

19

U.S. that would eradicate child labor and help the child laborers obtain education.

20

However, they failed to implement these decisions after assuring the U.S. market

21

that they would, allowing them to continue to benefit from child slavery without

22

any measurable impact on their bottom line.

23

62.

Despite Defendants’ admitted knowledge of the widespread use of

24

forced child labor on the cocoa farms from which they source and their specific25

policies prohibiting child labor, Defendants not only continued to provide cocoa

26

farms money, supplies, and training to grow cocoa beans for their exclusive use

27

knowing that their assistance would necessarily facilitate child labor, but they

28

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actively lobbied against all legal enforcement mechanisms that would have curbed

2

forced child labor.

3

63.

In 2001, following news reports that child slavery was a key

4

ingredient of American chocolate, U.S. Congressman Eliot Engel introduced a bill

5

that would have forced U.S. chocolate importers and manufacturers to adhere to a

6certification and labeling system that their chocolate was “slave free.” The bill

7

passed the House of Representatives with a vote of 291 to 115 in favor of the8measure.

964.

The U.S. chocolate industry, including Defendants, immediately

10

moved to eradicate the bill (rather than child slavery) urging the legislatures,

11

concerned non-governmental organizations, and the public at large that there was

12

no need for concrete, enforceable legislation against child slavery because they13

would instead implement a private, voluntary mechanism to ensure child labor free14

chocolate.

15

65.

The U.S. chocolate industry, including Defendants, launched a multi-

16

million dollar lobbying effort, which paid off by resulting in the Harkin-Engel

17

Protocol, an entirely voluntary agreement whereby the chocolate industry would

18

essentially police itself and in effect guarantee the continued use of the cheapest

19labor available to produce its product -- that of child slaves.

20

66.

By providing the logistical and financial assistance described herein

21 across a period of years, Defendants knew that the farmers they were assisting
22 were using and continued to use forced child labor, but nevertheless continued to
23 provide such assistance. But for Defendants’ knowing and substantial assistance
24 and their efforts to derail enforceable legal mechanisms via the Harkin-Engel
25 Protocol, the farmers would not have been able to operate their cocoa plantations
26 using forced child labor.
27
28

24
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67.

1

The Defendants made decisions in the U.S. to respond to the Harkin-

2

Engel Protocol passed by the U.S. Congress by adopting so-called monitoring

3

systems that Defendants knew would serve as a tool to further mislead the U.S.

4

market but that would not actually provide rigorous or accurate marketing.

5

Defendants fought efforts in the U.S. to require enforceable standards that would

6

effectively require Defendants to stop profiting from child slavery.4
68.

7

The three individual Plaintiffs, and the members of the class, all were8

forced to work as child slaves during the time that Defendants had decided in the

9

U.S. not to address child slavery, but to instead misrepresent to the U.S. market

10

that they were implementing effective programs to help stop the practice and11rehabilitate the former slaves.
69.

12

More recent sources confirm the ongoing use of child slaves to13

harvest cocoa in Côte D’Ivoire by large multinationals, including Nestlé, ADM,

14

and Cargill. The Dark Side of Chocolate, a film that focuses on the role of the15

multinational companies in perpetuating the use of child slaves, provides shocking

16

details about the extent and the horrors of slavery on cocoa plantations in Côte

17

D’Ivoire (https://www.youtube.com/watch?v=7Vfbv6hNeng). Further, the U.S.

18

Department of Labor funded researchers at Tulane University, who published a192015 study, Survey Results on Child Labor in West African Cocoa Growing Areas,

20

which provides detailed and current facts of the large numbers of children still21

performing hazardous work in harvesting cocoa in Côte D’Ivoire. Defendants have22

continued to operate in the U.S. market based on their decision made in the U.S. to

23

Reports in the past have shown the way that Nestlé profited through keeping laborcosts low through these illegal practices. Cocoa farmers receive only 3.2% of the
25 retail price while the mark-up is 43%. Oxfam, Equality for women starts withchocolate: Mars, Mondelez and Nestle and the fight for Women’s Rights (2013),
26
available at https://www.oxfam.org/sites/www.oxfam.org/files/equality-for27 women-starts-with-chocolate-mb-260213.pdf
4

24

28

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1

continue to aid and abet child slavery while implementing a public relations

2

campaign in the U.S. to mislead the U.S. market about the ongoing use of child3

slavery.

4VII. HARM TO THE INDIVIDUAL PLAINTIFFS

5
6
7

A. Former Child Slave Plaintiffs
70.

Plaintiff John Doe I was trafficked into Côte d’Ivoire at age fourteen

8(14) to work on a large cocoa plantation located in Abobogou, near the town of

9

Bouafle in Côte d’Ivoire. He was forced to work on the plantation until the age of

10

nineteen (19), between the period of 1994 and 2000, when he finally escaped.

11

During the four year period, he was forced to work harvesting and cultivating

12

cocoa beans for up to twelve (12) hours a day and sometimes as many as fourteen

13(14) hours, six days a week. This work included cutting, gathering, and drying the14

cocoa beans for processing. Upon information and belief, the cocoa cultivated on

15this plantation is supplied to any one and/or more of the Defendants herein. He was

16

not paid for his work and only given scraps of food to sustain him. He, along with17

the other children on the plantation, was heavily guarded at all times and at night

18

kept in a locked room to prevent escape. When the guards felt he was not working

19

quickly enough, he was often beaten with tree branches. He was beaten so hard

20

that he suffered cuts on his hands and legs. Plaintiff John Doe I brings this action

21

on behalf of himself and all other similarly situated former child slaves in Mali.

22

71.

Plaintiff John Doe II was trafficked into Côte d’Ivoire and forced to23

work as a child slave on a cocoa plantation for approximately 2 ½ years between

24

the period of 1998-2000. During this time, he was between the age of 12-14 years

25

old, below the legal working age in Côte d’Ivoire. The plantation was located in

26

the Region de Man, Côte d’Ivoire. During the 2 ½ years, he was forced to work27

harvesting and cultivating cocoa beans for up to twelve (12) hours a day and

28

26
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 28 of 38 Page ID#:17341sometimes as many as fourteen (14) hours, six days a week. This work included

2

cutting, gathering, and drying the cocoa beans for processing. Upon information3and belief, the cocoa cultivated on this plantation is supplied to any one and/or

4

more of the Defendants herein. Once on the plantation, his movements were5

strictly controlled and he was not permitted to leave under the threat that he would

6

be severely beaten and his feet cut open, as he had witnessed with the other7

children who attempted escape. At night, he, along with the other children working

8on the farm, were forced to sleep on the floor of a locked room until morning when

9

they were again gathered for work. Plaintiff John Doe II was not paid, provided

10

with only the bare minimum of food, and beaten with a whip when the guards felt

11

he was not performing adequately. Plaintiff John Doe II brings this action on

12behalf of himself and all other similarly situated former child slaves in Mali.

13

72.

Plaintiff John Doe III was was trafficked into Côte d’Ivoire and forced

14

into slavery at age 14 on a cocoa plantation located in the Bengalo Region de Man,

15

Côte d’Ivoire. He was forced to work on the plantation for approximately four (4)16years until he was 18 years old from 1996-2000. During this time, he worked

17

between twelve (12) and fourteen (14) hours, six days a week cutting, gathering,18

and drying cocoa beans and was not paid for his work. Upon information and19

belief, the cocoa cultivated on this plantation is supplied to any one and/or more of20

the Defendants herein. John Doe III could not leave the plantation under fear that21

he would be severely beaten and forced to drink urine, as had been done with other22

the children who attempted escape. He was watched at gun point at all times and at

23

night was forced to sleep in a small locked room with no windows and several

24

other children on the floor. When he did not perform adequately, he was often

25

whipped by the overseer. Plaintiff John Doe III brings this action on behalf of26

himself and all other similarly situated former child slaves in Mali.

27
28

27
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1

73.

Plaintiff John Doe IV was trafficked into Côte d’Ivoire when he was2around the age of twelve (12) to work on a cocoa plantation in Côte d’Ivoire. He

3

was recruited by a “locateur” who sold him into slavery. The plantation he was4

sold to was located in Kassangoro. He was forced to work on the plantation for5

approximately a year between 1998 and 1999, when he finally escaped. During

6

this time, he was forced to work harvesting and cultivating cocoa beans for twelve

7(12) hours to fourteen (14) hours a day. This work included cutting, gathering, and8drying the cocoa beans for processing. Upon information and belief, the cocoa

9cultivated on this plantation is supplied to one or more of the Defendants herein.

10

He was not paid for his work and only poor food to sustain him. He, along with the11other children on the plantation, was heavily guarded at all times and at night kept

12

in a locked room to prevent escape. He tried to escape several times before he13

succeeded. Once time when he was caught the guards cut his feet at the bottoms

14

and rubbed pepper in the wounds. Another time, he was tied to a papaya tree and15

was severely beaten. This damaged his left arm and left it permanently damaged.

16

He finally escaped with a few other children by digging a hole under the wall of17

the hut where they slept with a dirt floor. He escaped to Baoule. The Malian Envoy

18

helped him and other children to get home to their homes and then went back to

19

rescue other Malian children working on the plantation. Plaintiff John Doe IV

20brings this action on behalf of himself and all other similarly situated former child21

slaves in Mali.

22

74.

Plaintiff John Doe V was sold into slavery and trafficked into Côte

23

d’Ivoire when he was eleven years old by a “locator.” He was forced to work as a24child slave on a cocoa plantation for less than a year in approximately 1998. The

25

plantation was located in Kassangoro. He was forced to work harvesting and26

cultivating cocoa beans for long hours. This was all he did. The work included

27

cutting, gathering, and drying the cocoa beans for processing. Upon information

28

28
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 30 of 38 Page ID#:17361and belief, the cocoa cultivated on this plantation is supplied to any one and/or2

more of the Defendants herein. He was guarded by men with guns. One of the3

guards was called “nyejugu” (sour face). He ran away once but was captured and4severely beaten. He was rescued by the Malian Envoy because another child had

5escaped and told his family where he was. Plaintiff John Doe V brings this action

6

on behalf of himself and all other similarly situated former child slaves in Mali.

7

75.

Plaintiff John Doe VI was trafficked into Côte d’Ivoire at age ten (10)8

to work on a large cocoa plantation located in Koussou in Côte d’Ivoire. A man

9

took him from Mali to Côte d’Ivoire and sold him to a plantation for 20,000 CFA.

10

He was forced to work on the plantation for three (3) years between 1997 and

11

2001, when he finally escaped. During the three-year period, he was forced to

12

work harvesting and cultivating cocoa beans for very long days, sometimes as

13many as fourteen (14) hours, six days a week. This work included cutting,14

gathering, and drying the cocoa beans for processing. Upon information and15

belief, the cocoa cultivated on this plantation is supplied to one or more of the

16

Defendants herein. He was not paid for his work and only given scraps of food to17sustain him. He, along with the other children on the plantation, was heavily

18

guarded at all times and at night kept in a locked room to prevent escape. John

19

Doe VI could not leave the plantation under fear that he would be severely

20

punished. He was with around 75 other Malian children. He saw that children who

21

tried to flee were caught and the bottom of their feet were cut and rubbed with salt.

22

He was beaten for working too slow when he was sick. He has many scars from23

beatings and from cutting himself with a machete while working. He saw other24

children who died on the plantation. Plaintiff John Doe VI brings this action on

25

behalf of himself and all other similarly situated former child slaves in Mali.

26

76.

The members of the class have been forced to harvest cocoa in the

27 major cocoa regions of Côte d’Ivoire, including but not limited to the geographical28

29
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regions of Bouake, Bouaflé, Man, Daloa, Odienne, Oume, Gagna, Soubre,

2

Duekoue and San Pédro. All Defendants have sourcing relationships within one or3

more of those areas, and each Defendant has utilized substantial amounts of cocoa

4

harvested with child laborers, including members of the class.

5

VIII. DEFENDANTS’ VIOLATIONS OF LAW

6

77.

7
8

The causes of action maintained herein arise under and violate thefollowing laws, agreements, conventions, resolutions and treaties:

9(a) Alien Tort Statute (ATS), 28 U.S.C. § 1350;

10(b) Protocol Amending the Slavery Convention, done Dec. 7, 1953, 7

11
12
13
14
15
16

U.S.T. 479 (entered into force Dec. 7, 1953);(c) Slavery Convention, concluded Sept. 1926, 46 Stat. 2183, T.S. No. 788. 60
I.N.T.S 253 (entered into force Mar. 9, 1927);(d) Supplementary Convention on the Abolition of Slavery, the Slave
Trade, and Institutions and Practices Similar to Slavery;(e) International Labour Organisation Convention No. 29 Concerning

17

Forced or Compulsory Labor (1930), 39 U.N.T.S. 55 (entered into force May 1,181932);

1920(f) International Labour Organisation Convention No. 105 Concerning theAbolition of Forced Labour Convention;

21(g) International Labour Organisation (ILO) Convention 138 on Minimum

22

Age for Employment (1973) 1015 U.N.T.S. 297 (entered into force June 19, 1976);2324(h) ILO Convention 182 on the Worst Forms of Child Labour (1999) 38
I.L.M. 1207(entered into force November 19, 2000);25(i) United Nations Charter, 59 Stat. 1031, 3 Bevans 1153 (1945);

26

(j)

27
28

Universal Decl. of Human Rights, G.A. Res. 217A(iii), U.N. Doc.

A/810 (1948);
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2
3(k)International Covenant on Civil and Political Rights, G.A. Res.

2220A(xxi), 21 U.N. Doc., GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966);(l)Convention Against Torture and Other Cruel, Inhuman or Degrading

4

Treatment or Punishment, G.A. res. 39/46, 39 U.N. Doc., GAOR Supp. (No. 51) at

5

197, U.N. Doc. A/39/51 (1984);6(m) Declaration on the Protection of All Persons From Being Subjected to7

Torture and Other Cruel, Inhuman or Degrading Treatment or

8

G.A. Res. 3452, 30 U.N. Doc., GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034

9(1976);

10(n) Customary international law;

11(o) Federal Common and Statutory Law.

Punishment,

12

IX.

13
14
15
16
17
18
19
20
21
22
23
24
25

CLAIMS FOR RELIEF

COUNT IFORCED LABOR BY ALL FORMER CHILD SLAVE PLAINTIFFSAGAINST ALL DEFENDANTS
THE ALIEN TORT STATUTE, 28 U.S.C. § 1350
78.

The Former Child Slave Plaintiffs incorporate by reference paragraphs

1-77 of this Complaint as if fully set forth herein.
79.

The Former Child Slave Plaintiffs were placed in fear for their lives,

were deprived of their freedom, separated from their families and forced to suffer
severe physical and mental abuse.
80.

Defendants’ use of forced labor under these conditions of torture

violate the law of nations, customary international law, and worldwide industry
standards and practices, including, but not limited to those identified in paragraph81.

To the extent necessary, Defendants’ actions occurred under color of

26
27
28

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SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 33 of 38 Page ID#:17391

law and/or in conspiracy or on behalf of those acting under color of official

2

authority, such that the injuries inflicted on these Plaintiffs as a result of the forced3labor were inflicted deliberately and intentionally through the acts and/or omission

4of responsible state officials and/or their agents to act in preventing and/or limiting5

the trafficking or otherwise the use of child slaves. Upon information and belief,6

there are also several farms which are owned by government officials, whether

7

directly or indirectly, or are otherwise protected by government officials either

8through the provision of security services or through payments made to such9

officials that allow farms and/or farmer cooperatives to continue the use of child10

labor.
82.

11

Defendants’ conduct in violation of customary international law either

12

directly caused these injuries, or Defendants are liable for these injuries because

13

they provided knowing, substantial assistance to the direct perpetrators, or because

14

the direct perpetrators were agents, and/or employees of Defendants or of

15

companies that are the alter egos of Defendants.
83.

16

The conduct of Defendants was malicious, fraudulent and/or

17

oppressive and done with a willful and conscious disregard for the Former Child

18

Slave Plaintiffs’ rights and for the deleterious consequences of Defendants' actions.

19

As a result, the Former Child Slave Plaintiffs have sustained significant injuries

20

and these Plaintiffs will continue to experience pain and suffering and extreme and21

severe mental anguish and emotional distress. The Former Child Slave Plaintiffs

22

are thereby entitled to compensatory and punitive damages in amounts to be23

proven at trial.

24
25
26

//

27

//

28

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SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 34 of 38 Page ID#:1740

COUNT IICRUEL, INHUMAN, OR DEGRADING TREATMENTBY ALL FORMER CHILD SLAVE PLAINTIFFSAGAINST ALL DEFENDANTS
THE ALIEN TORT STATUTE, 28 U.S.C. § 1350

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

84.

The Former Child Slave Plaintiffs incorporate by reference paragraphs

1-81 of this Complaint as if fully set forth herein.
85.

The acts described herein had the intent and the effect of grossly

humiliating and debasing the Former Child Slave Plaintiffs, forcing them to act
against their will and conscience, inciting fear and anguish, and breaking their
physical and/or moral resistance.
86.

Defendants' actions forced the Former Child Slave Plaintiffs against

their will and under fear of harm, to labor for Defendants’ economic benefit and indoing so the Former Child Slave Plaintiffs were placed in great fear for their lives
and forced to suffer severe physical and psychological abuse and agony.
87.

In acting through the implicit sanction of the state, Defendants acted

under color of law and/or in conspiracy or on behalf of those acting under color of
official authority, and the injuries inflicted on the Former Child Slave Plaintiffs asa result of the cruel, inhuman and degrading treatment were inflicted deliberately
and intentionally through the omission of responsible state officials and/or theiragents to act in preventing and/or limiting the trafficking or otherwise the use ofchild slaves. Upon information and belief, there are also several farms which are
owned by government officials, whether directly or indirectly, or are otherwise
protected by government officials either through the provision of security services
or through payments made to such officials that allow farms and/or farmer
cooperatives to continue the use of child labor.
88.

The acts described herein constitute cruel, inhuman or degrading

treatment in violation of the law of nations under the ATS and Defendants are
33
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 35 of 38 Page ID#:17411

liable because they directly caused these injuries or they provided knowing,2

substantial assistance to the direct perpetrators, or because the direct perpetrators3

were agents, and/or employees of Defendants or of companies that are the alter

4egos of Defendants.
89.

5
6

Former Child Slave Plaintiffs are thereby entitled to compensatory

and punitive damages in amounts to be proven at trial.

7

COUNT IIITORTURE BY ALL FORMER CHILD SLAVE PLAINTIFFSAGAINST ALL DEFENDANTS
THE ALIEN TORT STATUTE, 28 U.S.C. § 1350

8
9
10

90.

11
12

The Former Child Slave Plaintiffs incorporate by reference paragraphs

1-89 of this Complaint as if fully set forth herein.
91.

13

Defendants’ actions were undertaken under the color of foreign

14

authority. Specifically, Defendants acted under color of law, and/or in conspiracy

15

or on behalf of those acting under color of official authority, by acting with the16

implicit sanction of the state and/or through the intentional omission of responsible

17

state officials and/or their agents to act in preventing and/or limiting the trafficking

18

or otherwise the use of child slaves into Côte d’Ivoire. Upon information and19

belief, there are also several farms which are owned by government officials,

20

whether directly or indirectly, or are otherwise protected by government officials,

21

either through the provision of security services or through payments made to such

22

officials that allow farms and/or farmer cooperatives to continue the use of child23

labor.

24

92.

Defendants’ conduct either directly caused Plaintiffs’ injuries, or they25

are liable for Plaintiffs’ injuries because they provided knowing, substantial

26

assistance to the direct perpetrators, or because the direct perpetrators were agents,

27
28

34
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 36 of 38 Page ID#:1742

1

and/or employees of Defendants or of companies that are the alter egos of2

Defendants.
93.

3

The acts described herein were inflicted deliberately and intentionally4

for purposes which included, among others, punishing the victim or intimidating5

the victim or third persons, and constitute torture in violation of the law of nations

6

under the ATS.

7

94.

Defendants’ tortious acts described herein placed all members of the8

Former Child Slave Plaintiffs in great fear for their lives and caused them to suffer

9severe physical and mental pain and suffering. The Former Child Slave Plaintiffs

10

are thereby entitled to compensatory and punitive damages in amounts to be

11

proven at trial.

12

X.

13

95.

14
15

LIABILITY

The Plaintiffs incorporate by reference paragraphs 1-94 of thisComplaint as if set forth herein.
96.

16

Defendants are directly liable for any actions that they aided and17abetted by knowingly providing financial support, supplies, training, and/or other18

substantial assistance that contributed to the ability of their agents, employees

19

and/or partners to use and/or facilitate the use of child slave labor, including but

20

not limited to any farm and/or farmer cooperative that held any agreement,

21

contract, and/or memorandum of understanding, written or oral, to supply cocoa

22beans.

23

97.

To the extent that Defendants can be said to have acted indirectly,

24

Defendants are vicariously liable for the actions of their agents, employees, co-25

venturers and/or partners, including specifically any farm and/or farmer

26

cooperative which held any agreement, contract, and/or memorandum of27

understanding, written or oral, to supply cocoa beans to such Defendants.

28

35
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 37 of 38 Page ID#:174398.

1

To the extent that any such agent, employee, co-venturers and/or

2

partner used and/or facilitated the use of child slave labor and/or made material

3

misrepresentations and omissions, such entity was acting within the course and4

scope of such agency, enterprise, or venture and Defendants confirmed and ratified

5such conduct.

699.

Defendants are further liable for the acts of any and all corporations

7

and/or entities found to be their alter ego. Defendants’ control over these entities’

8

operations, particularly with respect to the sourcing, purchasing, manufacturing,

9

distribution, and/or retailing of cocoa and cocoa derived products, renders them10

mere conduits for the receipt or transfer of funds and/or products with respect to11

cocoa products derived from the Côte d’Ivoire. Such inherent and pervasive failure12

to maintain separate identities constitutes improper conduct and disrespects the13

privilege of using the corporate form to conduct business.

14

XI.

15

DEMAND FOR JURY TRIAL

100. Plaintiffs demand a trial by jury on all issues so triable.

16
17

XII. PRAYER FOR RELIEF

18
19101. WHEREFORE, Plaintiffs respectfully request the Court to:20(a) enter judgment in favor of the Plaintiffs on all counts of the Complaint;

21(b) award the Plaintiffs compensatory and punitive damages;

22(c) grant the Plaintiffs equitable relief including, but not limited to, an

23injunction prohibiting further damage to their persons, remedying past damage,24

and protecting their rights under customary international law;(d) award Plaintiffs the costs of suit including reasonable attorneys’ fees;

25
26

and

27
28

36
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Case 2:05-cv-05133-SVW-MRW Document 208 Filed 07/14/16 Page 38 of 38 Page ID#:174412(e) award Plaintiffs such other and further relief as the Court deems justunder the circumstances.

3
4
5
6
7

Dated: July 14, 2016
Terry Collingsworth (DC Bar# 471830)
Attorney for Plaintiffs

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

37
SECOND AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGESEXHIBIT
5

EXHIBIT
6

Reports on Forced Child Labor in Cote d’Ivoire
Government reports• U.S. Department of Laboro Child Labor and Forced Labor Reports: Cote d’Ivoire,https://www.dol.gov/agencies/ilab/resources/reports/child-labor/cotedivoire§ FINDINGS ON THE WORST FORMS OF CHILD LABOR: CÔTE D’IVOIRE , U.S.
DEP’T. LABOR (2018),
https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2018/Cote%20d%27lvoire.pdf§ FINDINGS ON THE WORST FORMS OF CHILD LABOR: CÔTE D’IVOIRE , U.S.
DEP’T. LABOR (2017),
https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2017/CotedIvoire.pdf§ FINDINGS ON THE WORST FORMS OF CHILD LABOR: CÔTE D’IVOIRE , U.S.
DEP’T. LABOR (2016),
https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2016/cotedivoire.pdf§ FINDINGS ON THE WORST FORMS OF CHILD LABOR: CÔTE D’IVOIRE , U.S.
DEP’T. LABOR (2015),
https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2015/cotedivoire.pdf§ FINDINGS ON THE WORST FORMS OF CHILD LABOR: CÔTE D’IVOIRE , U.S.
DEP’T. LABOR (2014),
https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2014/cotedivoire.pdf§ FINDINGS ON THE WORST FORMS OF CHILD LABOR: CÔTE D’IVOIRE , U.S.
DEP’T. LABOR (2013),
https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2013/cotedivoire.pdf§ FINDINGS ON THE WORST FORMS OF CHILD LABOR: CÔTE D’IVOIRE , U.S.
DEP’T. LABOR (2012),
https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2012/cotedivoire.pdf§ FINDINGS ON THE WORST FORMS OF CHILD LABOR: CÔTE D’IVOIRE , U.S.
DEP’T. LABOR (2011),
https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2011/cotedivoire.pdf§ FINDINGS ON THE WORST FORMS OF CHILD LABOR: CÔTE D’IVOIRE , U.S.
DEP’T. LABOR (2010),
https://www.dol.gov/sites/dolgov/files/ILAB/child_labor_reports/tda2010/cotedivoire.pdf
o Child Labor in the Production of Cocoa,
https://www.dol.gov/agencies/ilab/our-work/child-forced-labortrafficking/child-labor-cocoa§ CHILD LABOR COCOA COORDINATING GROUP ANNUAL REPORT, U.S.
DEP’T. LABOR (2018),1https://www.dol.gov/sites/dolgov/files/ILAB/legacy/files/CLCCG2018AnnualReport.pdf§ CHILD LABOR COCOA COORDINATING GROUP ANNUAL REPORT, U.S.
DEP’T. LABOR (2017),
https://www.dol.gov/sites/dolgov/files/ILAB/legacy/files/CLCCG2017AnnualReport.pdf§ CHILD LABOR COCOA COORDINATING GROUP ANNUAL REPORT, U.S.
DEP’T. LABOR (2016),
https://www.dol.gov/sites/dolgov/files/ILAB/legacy/files/CLCCG%202016%20Annual%20Report.pdf§ CHILD LABOR COCOA COORDINATING GROUP ANNUAL REPORT, U.S.
DEP’T. LABOR (2015),
https://www.dol.gov/sites/dolgov/files/ILAB/legacy/files/2015CLCCG-Report.pdf§ CHILD LABOR COCOA COORDINATING GROUP ANNUAL REPORT, U.S.
DEP’T. LABOR (2014),
https://www.dol.gov/sites/dolgov/files/ILAB/legacy/files/2014CLCCG-Report.pdf§ CHILD LABOR COCOA COORDINATING GROUP ANNUAL REPORT, U.S.
DEP’T. LABOR (2013),
https://www.dol.gov/sites/dolgov/files/ILAB/legacy/files/2013CLCCG-ANNUAL-REPORT-032414.pdf§ CHILD LABOR COCOA COORDINATING GROUP ANNUAL REPORT, U.S.
DEP’T. LABOR (2012),
https://www.dol.gov/sites/dolgov/files/ILAB/legacy/files/2012CLCCG-Report.pdf§ CHILD LABOR COCOA COORDINATING GROUP ANNUAL REPORT, U.S.
DEP’T. LABOR (2011),
https://www.dol.gov/sites/dolgov/files/ILAB/legacy/files/2011CLCCG-Report.pdf
o Department of State: U.S. Embassy in Cote d’Ivoire§ Human Rights Report• COTE D’IVOIRE 2018 HUMAN RIGHTS REPORT, U.S. EMBASSY IN
COTE D’IVOIRE (2018), https://ci.usembassy.gov/wpcontent/uploads/sites/29/Cote-dIvoire-HRR-2018English.pdf• COTE D’IVOIRE 2017 HUMAN RIGHTS REPORT, U.S. EMBASSY IN
COTE D’IVOIRE (2017), https://ci.usembassy.gov/wpcontent/uploads/sites/29/HRR_2017_Engl.pdf• COTE D’IVOIRE 2016 HUMAN RIGHTS REPORT, U.S. EMBASSY IN
COTE D’IVOIRE (2016), https://ci.usembassy.gov/wpcontent/uploads/sites/29/CI-HRR-2016-English.pdf§ Trafficking Report• 2019 TRAFFICKING IN PERSONS REPORT: COTE D’IVOIRE, U.S.
EMBASSY IN COTE D’IVOIRE (2019),
https://www.state.gov/reports/2019-trafficking-in-personsreport-2/cote-divoire/
2

•

•

•

•

2018 TRAFFICKING IN PERSONS REPORT: COTE D’IVOIRE, U.S.
EMBASSY IN COTE D’IVOIRE (2018),
https://www.state.gov/reports/2018-trafficking-in-personsreport/cote-divoire/2017 TRAFFICKING IN PERSONS REPORT: COTE D’IVOIRE, U.S.
EMBASSY IN COTE D’IVOIRE (2017),
https://www.state.gov/reports/2017-trafficking-in-personsreport/cote-divoire/2016 TRAFFICKING IN PERSONS REPORT: COTE D’IVOIRE, U.S.
EMBASSY IN COTE D’IVOIRE (2016),
https://ci.usembassy.gov/wpcontent/uploads/sites/29/2017/08/CI_2017_TIP_Report_
Narrative-_FINAL_20JUNE2017_Engl.pdf
2015 TRAFFICKING IN PERSONS REPORT: COTE D’IVOIRE, U.S.
EMBASSY IN COTE D’IVOIRE (2015),
https://ci.usembassy.gov/wpcontent/uploads/sites/29/2016/08/2015_Cote_dIvoire_TI
P_Narrative_FINAL_Engl.pdf

NGO reports• Fair Labor Associationo Nestle§ ASSESSMENT OF NESTLE’S STANDARD COCOA SUPPLY CHAIN (“NOTCOVERED BY THE NESTLE COCOA PLAN”) IN COTE D’IVOIRE, FAIR LABORASSOCIATION, (Aug. 2016),
https://www.fairlabor.org/sites/default/files/documents/reports/a
ssessment_nestle_standard_supply_chain_ivory_coast_august_2
016.pdf§ INDEPENDENT EXTERNAL MONITORING OF NESTLE’S COCOA SUPPLYCHAIN IN IVORY COAST: 2016, FAIR LABOR ASSOCIATION (2017),
https://www.fairlabor.org/sites/default/files/documents/reports/o
ctober_2017_nestle_executive_summary.pdf§ INDEPENDENT EXTERNAL MONITORING OF NESTLE’S COCOA SUPPLYCHAIN IN IVORY COAST: 2015, FAIR LABOR ASSOCIATION (2016),
https://www.fairlabor.org/sites/default/files/documents/reports/s
eptember_2016_nestle_executive_summary.pdf§ INDEPENDENT EXTERNAL MONITORING OF NESTLE’S COCOA SUPPLYCHAIN IN IVORY COAST: 2014, FAIR LABOR ASSOCIATION (2014–2015),
https://www.fairlabor.org/sites/default/files/documents/reports/s
eptember_2015_nestle_executive_summary.pdf§ INDEPENDENT EXTERNAL MONITORING AGRICULTURAL REPORT:GAGNOA, FAIR LABOR ASSOCIATION (2016),
https://www.fairlabor.org/sites/default/files/documents/reports/n
estle_ivc_cocoa_gagnoa_2016.pdf§ INDEPENDENT EXTERNAL MONITORING AGRICULTURAL REPORT:GUEMON, FAIR LABOR ASSOCIATION (2016),
https://www.fairlabor.org/sites/default/files/documents/reports/n
estle_ivc_cocoa_guemon_2016.pdf
3

§

§

§

§

•

•

•

INDEPENDENT EXTERNAL MONITORING AGRICULTURAL REPORT: GUITRY
IEV, FAIR LABOR ASSOCIATION (2016),
https://www.fairlabor.org/sites/default/files/documents/reports/n
estle_ivc_cocoa_guitry_iev_2016.pdf
INDEPENDENT EXTERNAL MONITORING AGRICULTURAL REPORT:MARAHOUE, FAIR LABOR ASSOCIATION (2016),
https://www.fairlabor.org/sites/default/files/documents/reports/n
estle_ivc_cocoa_marahoue_2016.pdf
INDEPENDENT EXTERNAL MONITORING AGRICULTURAL REPORT: SAN
PEDRO, FAIR LABOR ASSOCIATION (2016),
https://www.fairlabor.org/sites/default/files/documents/reports/n
estle_ivc_cocoa_sanpedro_2016.pdf
SUSTAINABLE MANAGEMENT OF NESTLE’S COCOA SUPPLY CHAIN IN THE
IVORY COAST—FOCUS ON LABOR STANDARDS, FAIR LABOR ASSOCIATION(June 2012),
https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=2740&context=globaldocs

o Olam§ INDEPENDENT EXTERNAL MONITORING OF OLAM’S COCOA SUPPLYCHAIN IN IVORY COAST: 2016, FAIR LABOR ASSOCIATION (2016),
https://www.fairlabor.org/sites/default/files/documents/reports/n
ovember_2017_olam_executive_summary.pdf§ INDEPENDENT EXTERNAL MONITORING OF OLAM’S COCOA SUPPLYCHAIN IN IVORY COAST: 2015, FAIR LABOR ASSOCIATION (2015–2016),
https://www.fairlabor.org/sites/default/files/documents/reports/o
lam_cocoa_supply_chain_ivory_coast_2015_2016.pdf§ INDEPENDENT EXTERNAL MONITORING AGRICULTURAL REPORT:INDENIE, FAIR LABOR ASSOCIATION (2016),
https://www.fairlabor.org/sites/default/files/documents/reports/o
lam_ivc_cocoa_indenie_2016.pdf§ INDEPENDENT EXTERNAL MONITORING AGRICULTURAL REPORT:MARAHOUE, FAIR LABOR ASSOCIATION (2016),
https://www.fairlabor.org/sites/default/files/documents/reports/o
lam_ivc_cococa_marahoue_2016.pdf§ INDEPENDENT EXTERNAL MONITORING AGRICULTURAL REPORT:TONKPI, FAIR LABOR ASSOCIATION (2016),
https://www.fairlabor.org/sites/default/files/documents/reports/o
lam_ivc_cocoa_tonkpi_2016.pdf
Food Empowerment Project
o CHILD LABOR AND SLAVERY IN THE CHOCOLATE INDUSTRY, FOOREMPOWERMENT PROJECT, https://foodispower.org/human-laborslavery/slavery-chocolate/
Global Slavery Indexo 2018 FINDINGS: COCOA, GLOBAL SLAVERY INDEX (2018),
https://www.globalslaveryindex.org/2018/findings/importingrisk/cocoa/
International Cocoa Initiative
4

•

•

•

•

•

o EDUCATION QUALITY AND CHILD LABOUR, INTERNATIONAL COCOA INITIATIVE(June 2019), https://cocoainitiative.org/wpcontent/uploads/2019/06/Education-quality-and-child-labour-evidencefrom-C%C3%B4te-dIvoire-and-Ghana_June2019.pdf
o HUMAN RIGHTS DUE DILIGENCE IN SUPPLY CHAINS, INTERNATIONAL COCOA
INITIATIVE (Oct. 2019), https://cocoainitiative.org/wpcontent/uploads/2019/10/HRDD_report_ICI_Final_w_image.pdf
o ICI EXTERNAL STAKEHOLDER MEETING REPORT, INTERNATIONAL COCOA
INITIATIVE (June 20, 2013), https://cocoainitiative.org/wpcontent/uploads/2016/07/June_2013_stakeholder_meeting.pdf
o ICI STAKEHOLDER MEETING: ABIDJAN, INTERNATIONAL COCOA INITIATIVE(Nov. 18, 2013), https://cocoainitiative.org/wpcontent/uploads/2016/07/2013_stakeholder.pdf
o ICI STAKEHOLDER MEETING: GENEVA, INTERNATIONAL COCOA INITIATIVE(Nov. 18, 2014), https://cocoainitiative.org/wpcontent/uploads/2016/07/2014_stakeholder.pdf
o Lotte Griek, Jennifer Penikett, & Esther Hougee, Bitter Harvest: Child
Labour in the Cocoa Supply Chain, INTERNATIONAL COCOA INITIATIVE(June 2010), https://cocoainitiative.org/wpcontent/uploads/2017/09/Bitter-Harvest-Child-Labour-in-the-CocoaSupply-Chain.pdf
o RESEARCHING THE IMPACT OF INCREASED COCOA YIELDS ON THE LABOUR
MARKET AND CHILD LABOUR RISK IN GHANA AND COTE D’IVOIRE,
INTERNATIONAL COCOA INITIATIVE (2016), https://cocoainitiative.org/wpcontent/uploads/2016/12/market_research_full_web.pdf
International Labor Rights Forumo THE FAIRNESS GAP: FARMER INCOMES AND ROOT CAUSE SOLUTIONS TO ENDING
CHILD LABOR IN THE COCOA INDUSTRY, INTERNATIONAL LABOR RIGHTS FORUM(Dec. 2014), https://cocoainitiative.org/wpcontent/uploads/2016/09/The-Fairness-Gap-Farmer-Incomes-and-RootCause-Solutions-to-Ending-Child-Labor-in-the-Cocoa-Industry-2014.pdf
True Price and IDH
o THE TRUE PRICE OF COCOA IVORY COAST, IDH & TRUE PRICE (2016),
https://cocoainitiative.org/wp-content/uploads/2016/10/The-True-Priceof-Cocoa.pdf
UN Conference on Trade and Development (UNCTAD)
o COCOA INDUSTRY: INTEGRATING SMALL FARMERS INTO THE GLOBAL VALUECHAIN, U.N. CONFERENCE ON TRADE AND DEVELOPMENT (2016),
https://unctad.org/en/PublicationsLibrary/suc2015d4_en.pdf
UNICEFo CHILDREN’S RIGHTS IN THE COCOA-GROWING COMMUNITIES OF COTE D’IVOIRE,UNICEF, (Nov. 2018), https://www.unicef.org/csr/css/synthesis-reportchildren-rights-cocoa-communities-en.pdf
Veriteo ASSESSMENT OF FORCED LABOR RISK IN THE COCOA SECTOR OF COTE D’IVOIRE,VERITÉ, (Feb. 2019), https://www.verite.org/wp-

5content/uploads/2019/02/Verite-Report-Forced-Labor-in-Cocoa-inCDI.pdf
o RECOMMENDATIONS FOR ADDRESSING FORCED LABOR RISK IN THE COCOA
SECTOR OF COTE D’IVOIRE, VERITE (Feb. 2019),
https://cocoainitiative.org/wp-content/uploads/2019/02/VeriteRecommendations-Forced-Labor-in-Cocoa-in-CDI.pdf• VOICE Networko COCOA BAROMETER (2018), https://www.voicenetwork.eu/wpcontent/uploads/2019/08/Cocoaborometer2018_web4.pdf
o COCOA BAROMETER (2015), https://www.voicenetwork.eu/wpcontent/uploads/2019/07/Cocoa-Barometer-2015.pdf• Walk Free Foundationo BITTER SWEETS: PREVALENCE OF FORCED LABOUR & CHILD LABOUR IN THE
COCOA SECTORS OF COTE D’IVOIRE & GHANA, WALK FREE FOUNDATION (2018),
https://cocoainitiative.org/wp-content/uploads/2018/10/CocoaReport_181004_V15-FNL_digital.pdf• World Cocoa Foundation/African Cocoa Initiativeo Final Report: Oct. 2011–Dec. 2016, Cooperative Agreement No. AID-OAAA-11-00061, WORLD COCOA FOUNDATION & AFRICAN COCOA INITIATIVE (Mar.
31, 2017), https://www.worldcocoafoundation.org/wpcontent/uploads/files_mf/1491922197WCFACIFinalReportFinalforSharin
g.pdf
News reports• BBC
o Humphrey Hawksley, Ivory Coast cocoa farms child labour: little change,
BBC (Nov. 10, 2011), https://www.bbc.com/news/world-africa-15681986
o Tracing the bitter truth of chocolate and child labor, BBC NEWS, (Mar. 24,2010),
http://news.bbc.co.uk/panorama/hi/front_page/newsid_8583000/8583
499.stm• CNN
o Chocolate’s Child Slaves, CNN (May 26, 2015),
https://www.cnn.com/videos/world/2015/05/26/chocolate-child-slavesivory-coast-spc-cfp.cnn• Fortuneo Brian O’Keefe, Bitter Sweets, FORTUNE (Mar. 1, 2016),
https://fortune.com/longform/big-chocolate-child-labor/• The Guardiano Tim Adams, From bean to bar in Ivory Coast, a country built on cocoa,
THE GUARDIAN, (Feb. 24, 2019), https://www.theguardian.com/globaldevelopment/2019/feb/24/ivory-coast-cocoa-farmers-fairtrade-fortnightwomen-farmers-trade-justice• Washington Posto Peter Whoriskey & Rachel Siegel, Cocoa’s child laborers, THE WASHINGTONPOST (June 5, 2019),6https://www.washingtonpost.com/graphics/2019/business/hersheynestle-mars-chocolate-child-labor-west-africa/
Scholarly research• Tulane University
o FINAL REPORT: SURVEY RESEARCH ON CHILD LABOR IN WEST AFRICAN COCOAGROWING AREAS, TULANE UNIVERSITY (2015),
https://www.dol.gov/sites/dolgov/files/ILAB/research_file_attachment/
Tulane%20University%20%20Survey%20Research%20Cocoa%20Sector%20%2030%20July%202015.pdf
o FINAL RESEARCH: SURVEY RESEARCH ON CHILD LABOR IN WEST AFRICANCOCOA GROWING AREAS 2013/14, TULANE UNIVERSITY (July 30, 2015),
https://cocoainitiative.org/wpcontent/uploads/2014/07/tulane_university__survey_research_on_child_labor_in_the_cocoa_sector__30_july_2015.pdf
o FOURTH ANNUAL REPORT: OVERSIGHT OF PUBLIC AND PRIVATE INITIATIVES TOELIMINATE THE WORST OF CHILD LABOR IN THE COCOA SECTOR IN COTE
D’IVOIRE AND GHANA, TULANE UNIVERSITY (2010),
https://www.dol.gov/sites/dolgov/files/ILAB/research_file_attachment/
Final%20Fourth%20Annual%20Report.pdf
o OVERSIGHT OF PUBLIC AND PRIVATE INITIATIVES TO ELIMINATE THE WORSTFORMS OF CHILD LABOR IN THE COCOA SECTOR IN COTE D’IVOIRE AND GHANA,TULANE UNIVERSITY, (Mar. 31, 2011),
https://issuu.com/stevebutton/docs/tulane_final_reporto SURVEY RESEARCH ON CHILD LABOR IN WEST AFRICAN COCOA GROWINGAREAS: CLCCG MEETING AND STAKEHOLDER BRIEFING, WASHINGTON DC,
TULANE UNIVERSITY, (Mar. 12, 2013),
https://www.dol.gov/sites/dolgov/files/ILAB/research_file_attachment/
Tulane_%20CLCCG_March%202013.pdf
Misc.
• African Economic Research Consortium, Nairobi
o Edouard Pokou Abou, A Re-examination of the Determinants of Child
Labour in Cote d’Ivoire, AERC Research Paper 289, AFRICAN ECONOMICRESEARCH CONSORTIUM, NAIROBI (Dec. 2014),
https://cocoainitiative.org/wp-content/uploads/2017/10/Abou-2014-ARe-examination-of-the-Determinants.pdf• Embode Ltd.
o CHILDREN AT THE HEART: ASSESSMENT OF CHILD LABOUR AND CHILD SLAVERYIN COTE D’IVOIRE’S COCOA SECTOR AND RECOMMENDATIONS TO MONDELEZ
INTERNATIONAL, EMBODE LTD. (2016),
https://www.cocoalife.org/~/media/CocoaLife/en/download/article/FUL
L_REPORT_Cote_Ivoire_Mondelez_Embode_ChildrenattheHeart.pdf

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