Episode 7

In the course of this series, we’ve seen the ways that corporate goodwill alone is not enough to ensure fair livelihoods for farmers, or to protect the planet that we all share. Nestlé, and so many other corporations, are ready to dodge commitments in order to protect their profits. In this episode, we delve into the change needed to end exploitation as usual—and create space to thrive for the inspiring farmer- and community-led projects we’ve heard from throughout this series.

In our final episode of the season, we’re unwrapping our own thoughts on those questions and joining us is Charity Ryerson, Executive Director and founder of Corporate Accountability Lab (CAL). She’s using multiple legal strategies to pursue Nestlé and other big chocolate brands for their continued use of child labor—and a business model that is built on exploitation. This conversation explores creative strategies to raise the cost of business-as-usual, and the political change we need to build true corporate accountability. Listen for more ways to take action—not just as consumers, but as global citizens.

Take Action Beyond the Episode: Add your name to our petition and tell Nestlé, Cargill, and other big chocolate companies to STOP using child labor in their supply chains. Then, join us on May 7, 2021 at 10 AM PST for a webinar in celebration of World Fair Trade Day: Building a Fair, Ethical Chocolate Trade. Featuring panelists from Alter Eco, Dr. Bronner’s, Norandino Cooperative, Equal Exchange, and Serendipalm—plus a live Q&A to follow! Seats are limited, so register now to reserve your spot!

Dana Geffner:
This is going to be the last episode in our series focusing on unwrapping the KitKat bar. We started tracing the ingredients, cocoa, sugar, palm oil. And now in this episode, we’re unwrapping our own ongoing thought processes too.

When Nestlé announced their decision to drop Fairtrade certification and switch to Rainforest Alliance’s label, we were conflicted. On the one hand, we support farmer organizations making the call on what works best for them – and what they were calling for was for Nestlé to continue to deal with them on fair trade terms. And on the other hand, Nestlé is the sort of multinational whose human rights record is totally at odds with the values of the fair trade movement. Out of that tension, we built this whole series of conversations. And if there is any takeaway here, I think by now it’s clear. We cannot rely on corporate goodwill alone to protect basic human rights.
Last episode, Anna talked to Terry Collingsworth of International Rights Advocates. They’re the lawyers who are representing 6 formerly trafficked child laborers suing Nestlé and Cargill in a case that’s currently at the US Supreme Court. That conversation laid out some of the ways that Nestlé is being held accountable for their exploitative business practices. But the consequences of that case are much bigger than Nestlé. What hangs in the balance is whether corporations will be let off the hook for the very worst abuses so long as those abuses happen outside the US. There’s so much at stake in this moment.

And there’s also momentum building to pair grassroots efforts for corporate accountability with legal frameworks that are a match for modern supply chains. In this episode, our Campaigns Manager, Anna Canning talks with Charity Ryerson of Corporate Accountability Lab. That case suing Nestlé and Cargill that’s in the Supreme Court right now? Charity filed a brief in support of those formerly trafficked child laborers on behalf of 18 small- and mid-sized chocolate companies supporting real consequences for human rights violations in supply chains. Right now, we’ve seen how there’s a race to the bottom for cheaper ingredients, cheaper certification labels, cheaper everything to feed corporate profits.
What would it take to stop that race? Their conversation explores a few ways to raise the costs of business as usual.

Anna Canning:
Hi, Charity. So welcome to For a Better World. I think my first question for you is just, you know, your organization, Corporate Accountability Lab is pretty new. What led you to found it?

Charity Ryerson:
I founded it about four years ago and before I started CAL I was an Alien Tort Statute litigator. I was looking at the way that, you know, victims from outside of the United States were bringing claims in U.S. Courts. and not only were the cases really hard and did we lose a lot, but then the Supreme Court announced a series of decisions that really limited the area of law. And so I just found that as a litigator, we were, you know, spending, investing a lot of time and resources with communities that had been horribly affected by really egregious human rights abuses. And we just weren’t really able to get them the kind of remedy that I think that they deserved and that was frankly kind of painful.

Charity Ryerson:
So, I started CAL as a lab to really experiment with creating new legal strategies, using totally different areas of law, in a sense as a stop gap in the hopes that eventually we could get some comprehensive federal legislation that would address this directly and more effectively so that we would have the tools that were created for this purpose instead of constantly trying to repurpose other things. But we don’t have that right now. So that’s what we do.

Anna Canning:
Interesting. So which came first for you in the course of your career, human rights or law?

Charity Ryerson:
Human rights. So when I was when I was in college, I was really involved in the student anti sweatshop movement. At the time we were protesting Niketown around conditions in Mexican factories. And, you know, that was like a crash course in global supply chains.

So, I felt like student organizing and student activism was just such an amazing opportunity. So, coming out of college, I then worked for a little nonprofit for a few years doing some international labor solidarity and monitoring on farms and in factories in Latin America. So I did a lot of work in Colombia and the Sabana de Bogota, in the flower sector in the banana—banana farms in Guatemala and Honduras, just working with unions that were organizing or workers that were impacted by U.S. Companies.

Charity Ryerson:
I was working with flower workers in Colombia who were having reproductive health effects from pesticide exposure, just because the Dole farm that they worked for would not abide by the rules written on the side of the pesticide containers. Just don’t spray while the women are in the tent.

Anna Canning:
These demands sound pretty simple, right? Follow the absolute basic rules to keep working people safe. But Charity didn’t feel like the consumer campaigns and the pressure they applied to the companies were having the kind of impact that she wanted. Instead she went to law school, inspired by cases like the ones we talked about in the last episode, suing corporations over transnational human rights abuses. And that’s how she ended up founding Corporate Accountability Lab—and then setting out to tackle some of the most well-known human rights abuses—those in cocoa supply chains.

Charity Ryerson:
We started working with some organizations in West Africa and thinking about this a few years ago, and we just started going out and doing exploratory visits to get a sense of the industry and to try to understand what the drivers of the problem were. I think when people think about child labor and forced labor and some of these conditions, it’s hard to really understand how complicated a context is that gives rise to that kind of, of human rights abuse. It’s very rarely, you know, there’s a trafficker, he grabs this kid, he forces him to work. He beats him. I think people have sort of a caricature in their minds that doesn’t appreciate the complexity of the economic environment.

That’s really created by big corporate buying practices. So we needed to trace that a little bit. So we started going out and meeting with farmers and working on this issue, and we learned a lot about how it works and unveiling that at least for ourselves and that process was it was alarming and concerning and really emphasized the extent to which this is a really big structural problem that reflects a lot of the problems in the way the global economy operates. And that we’re not going to be able to get out of this problem by better purchasing decisions. So while ethical purchasing is important, we cannot buy ourselves— our way out of the child trafficking problem in Cote d’Ivoire, something needs to happen at a systemic level. And so at that point, we decided to keep moving with it and see if we could look at some of those incentives in the supply chain and use whatever legal strategy is at our disposal to impact it.

Anna Canning:
Out of those trips came a report titled Empty Promises. The subheading is a bit of a mouthful: The Failure of Voluntary Corporate Social Responsibility Initiatives to Improve Farmer Incomes in the Ivorian Cocoa Sector. And before we even got into how those initiatives might have failed, I first asked Charity to explain what a Voluntary Corporate Social Responsibility is. She started by pointing out that this isn’t just a cocoa problem, or even just a food system problem. It applies to the clothes we wear and electronics too – all of them exploit people in supply chains and all have been pushed to address it.

Charity Ryerson:
So if you think back to the late nineties, when everyone was really scandalized by sweatshops, when suddenly everyone realized that their goods were being made in sweatshops you know, this is something that at that point, there was a lot of pressure. People started talking about it, it was in the media. And so all of the companies adopted codes of conduct where they, they said we’re going to commit not to, you know do forced overtime, underpayment of the minimum wage, discrimination. So they started to incorporate these things into contracts. They developed CSR, Corporate Social Responsibility, departments. Those departments essentially became public relations departments.

Anna Canning:
Sound familiar? It’s a lot of what we’ve been talking about all season long.

Charity Ryerson:
Voluntary Corporate Social Responsibility refers to a lot of the public representations that companies make about how they produce their goods. And that includes everything in the realm of ethical consumerism. It’s the shiny photos you see at the Starbucks of coffee workers on farms.

Anna Canning:
It’s not just a Starbucks’ thing—go to so many corporations’ websites, click to the Corporate Social Responsibility pages,

Charity Ryerson:
So what you’ll see is, you know, a program that looks really great. They’re building schools, they’re building roads, they’re supporting farmers. And then they don’t say how much of their supply chain, this applies too. And if you dig a little deeper, it’s very hard to discover, but you can discover that it’s like 2% of the supply chain, or it’s a single pilot project in a single place. And so they’re representing this as though this is how they manage their supply chains. Here’s our happy workers, here’s our happy farmers. But it’s really not representative of what they do overall. And so in that way, CSR has become sort of a bad word because it’s really more public relations than it is social responsibility. So when we talk about volunteerism or this voluntary CSR, what we’re really referring to is the need to have more binding standards. So that companies are doing things from a perspective of compliance, rather than doing it from a perspective of public relations.

Anna Canning:
The rise of these corporate social responsibility programs mirrors what we’ve been discussing over the past few episodes. Back in Episode 4, Merling Preza talked about the small-scale farmer-led movement for fair trade and how that’s gotten co-opted by corporate marketing. What’s real, what’s just for show? I know I’ve fallen into rabbit holes and spent way too long trying to make minute distinctions that may not make a difference. But Charity keeps it really clear. There are some things that aren’t super murky. We do know the difference between right and wrong.

Charity Ryerson:
One thing that has been a really important evolution in this field over the last decade is the UN Guiding Principles on Business and Human Rights.

Anna Canning:
These principles represent an international consensus by stakeholders and the United Nations. There are three basic pillars: first, that governments have a responsibility to protect human rights. Second, that corporations have a responsibility to respect human rights. And third, that people who have been harmed by corporate abuses should have what they call “access to remedy.” Whether that’s through courts or otherwise is a topic that gets debated.
Most of my conversation with Charity focuses on those first two pillars—the responsibilities of governments and corporations. And here’s where the international consensus has really advanced in the last decade. It’s not just that corporations are responsible in that nice building-schools-sort-of-way we’ve been talking about. Instead, it’s putting the onus on corporations

Charity Ryerson:
…It is their responsibility to do due diligence in their supply chain to ensure that these problematic practices are not taking place. The prior regime or standard was that companies would say, that’s just my supplier. I don’t have any responsibility for what happens at the supplier level. Even if the company is setting the standards under which those goods are being produced, they still weren’t taking any responsibility for the harms that were created within those supply chains. So the idea of moving from volunteerism to a more binding set of standards is thinking about how we can both through the law, create incentives for companies so that they want to avoid harming people, because it would cost them a lot of money. So make it into a line item.

Anna Canning:
Instead of putting pressure on corporations to do the right thing in hopes of maintaining their reputation or growing their market share, this approach recognizes that corporate structures are built on the bottom line. In the corporate cost-benefit analysis, it’s cheaper to maintain the status quo of poverty prices and do a little bit of good stuff around the edges.
Forced labor, child trafficking, deforestation, and exploitation are all the consequences of that status quo. And too often, instead of tackling the root causes and addressing the poverty prices and historical power imbalances, companies roll out their corporate social responsibility programs, their schools, and their water projects like the moral equivalent of carbon offsets.

Charity Ryerson:
I think this really speaks to the problem of the whole CSR infrastructure and why it is fundamentally flawed. The issue is it’s speaking to consumers, giving consumers the impression that they have the ability to make a choice with their dollar to buy something that was created in a way that’s consistent with their values. Consumers do not have that choice. That is not real. Consumers just can’t get enough information to make that choice.

Anna Canning:
That idea of consumer choice is one of the underpinnings of our modern capitalist system. The myth that you and I and all of us are “self-interested, rational actors” who move through the economy making logical, predictable decisions. This is the underpinning of the whole fairy tale of the Invisible Hand of the market – the idea that if people have made a choice to buy something, that’s because they believe it’s in their own best interest – and that of the rest of society.

Charity Ryerson:
That’s just not real. So because we don’t have the ability to do that as consumers, it ends up setting up the situation in which companies are incentivized to have the shiny brochures and pictures of farmers, et cetera. But they’re not really incentivized to actually do a good job to actually make sure that their practices are rights-respecting throughout their supply chains.

Anna Canning:
What would it mean to have “rights-respecting” practices throughout supply chains, as Charity just said? Well, a first step would be to pay farmers living incomes. That’s not a guarantee that there would be an end to forced and child labor or deforestation, but it would mean that those things were no longer necessary tactics to survival.
Big Chocolate companies have continually dodged paying fair prices to cocoa farmers. On average, a West African cocoa farmer earns less than $1 per day. There’s no way to make that feed a family, send children to school, and tend to and invest in a farm. Pretty consistently, chocolate companies have said,

Charity Ryerson:
If the problem is farmer incomes, then what farmers need to do is they need to figure out how to make their trees produce more. They need to plant more trees.

So they focused on productivity as the way to address farmer income, ignoring the fact that the price is just too low, right? So farmers work harder. They work longer hours. They get more land, they grow more trees than they should be able to have enough money to not rely on illegal forms of labor, just to be able to survive. But you have a situation in Cote d’Ivoire and Ghana, where you could be an amazing farmer and using all of the best practices and having the most productive trees and having invested in all the right fertilizers. And you could still be dirt poor, right? But a really successful farmer should be rich, just as rich as a really successful businessman on some level. Right? And so we have a situation in which it doesn’t matter how well you do, you always fail. And so farmers who are just trying to keep shoes on their kids, food in bellies, it’s not as though they’re paying electricity bills.

Charity Ryerson:
All of the villages that we’ve visited, none of them had electricity. None of them had indoor plumbing. They had a single outhouse that they shared amongst a village of many, many people, right? These are villages that live in extraordinary poverty. There’s very little education happening. A lot of kids are not going to school. Some of the schools that exist were set up by NGOs because the government hasn’t set up schools in the region. So the context is really hard, but a big reason for it to be so hard is because the farmers don’t earn enough, right? There’s no tax base because there’s no earnings. And the multinationals are making a killing off of this extraordinarily cheap commodity that they’re then pumping into a luxury good for global North consumption. That—I mean, honestly, that’s ethically very disturbing if you look at the big picture of the way that economy is working.

Charity Ryerson:
And so when the governments of Cote d’Ivoire and Ghana said, you know, we actually just need to raise the price. We need to raise the price. There’s always going to be a need for free labor. Whether that is child labor within the family, trafficked child labor from over borders, adult forced labor, there will always be a need for free labor if the price of this commodity is this low. So if we’re going to address it, we have to raise it. And so they instituted the LID price.

Anna Canning:
LID stands for Living Income Differential. That’s an add-on sum of $400 per metric ton, the unit in which cocoa is traded. We discussed this some in Episode 5 as well, in our conversation with Joanna from Fairtrade Yorkshire. When Nestlé committed to paying the Fairtrade Minimum price for the next two harvests, and then it turned out that they were already going to have to pay more than that by law? That’s the price we’re talking about here.

Charity Ryerson:
Is the LID price enough? No, it’s not enough, but it would start us walking down a road that we need to start walking down, right. Or we will never address these problems.
So then when major industry actors like Hershey’s and others went and tried to undermine this systematically, they went and they bought, they bought cocoa off of international markets.

Charity Ryerson:
Then a bunch of cocoa in West Africa just sat in warehouses while companies were refusing to pay the price. And when you look at the profits of these companies, year over year and their decision to do this, considering how little this would actually impact their bottom line.

Anna Canning:
The difference is just $400 per metric ton. That’s just 18 cents per pound, to translate it to units of measure that are a bit more easy to picture. And per candy bar? It’s even more negligible.

Charity Ryerson:
They obviously have an agenda in keeping this price extraordinarily low. And so if they continue to act surprised about child labor, or if they continue to say that their very limited efforts to address child labor are mysteriously not working and they can’t figure out why. I would just say, step back a minute, you had an opportunity to have an even playing field where everyone in the industry was paying a higher price because before they said they don’t want to pay a higher price because that puts them at a competitive disadvantage. So now they were all going to be on the same even playing field. And they decided to undermine this and force the system to collapse. That’s pretty inexcusable. And I think that at that point, whatever we’re seeing on their shiny brochures about whatever schools they may have built, we should not find that credible. And we, and frankly, as consumers, we should be outraged that they’re trying to mislead us in this way while intentionally undermining efforts to make the problem go away.

Anna Canning:
OK, just to recap here. For far too long, the chocolate industry has tried to put the responsibility of improving farmer incomes onto cocoa farmers, pushing for more productivity and letting themselves off the hook. One of their main excuses for not paying higher prices? Whoever went first would be at a competitive disadvantage compared to the other chocolate brands. Then the governments of Cote d’Ivoire and Ghana set a higher minimum price to improve farmers’ livelihoods. And now we see the big chocolate companies making all sorts of moves to try to dodge paying. I should probably slip an “allegedly” in there somewhere as, once again, the corporations in question have issued some very carefully lawyered statements backing away from responsibility.

Unfortunately, there’s not a clear law on the books that covers this scenario, in the U.S., or internationally. Instead, let’s get real. Too many of our corporate codes incentivize this— it’s good business to try to get the very lowest price possible.

However, Charity and her team are working to raise the cost of exploitation.

Charity Ryerson:
In the United States, we have the trafficking statute,

Anna Canning:
That’s the Trafficking Victims Protection Act. I talked to Terry about this one at length in Episode 6. Unlike the old-timey law that formerly trafficked child laborers are using to sue Nestlé and Cargill at the Supreme Court, this law is specifically meant to deal with corporate harms done to people working in corporate supply chains.

Charity Ryerson:
and that statute creates liability, not just for people who intentionally engage in the practice of trafficking, but who knowingly benefit from it. And that’s the entire cocoa industry, right? All of the major players in the cocoa industry, knowingly benefit from trafficking. So that statute has criminal provisions and it also has civil provisions. So there is a case that was just filed under the civil provisions on behalf of some formerly trafficked children.

Charity Ryerson:
I would love to see the government exercise their power with the criminal provisions and go after major cocoa industry actors for knowingly benefiting from the practice of trafficking. And you know, essentially what that does is it just, it shifts the narrative. So

Charity Ryerson:
instead of incentivizing them to say, “I don’t know what farms I source from. I’m not responsible for that. I don’t ask my suppliers any questions.”

Charity Ryerson:
It says, if you’re aware of the trafficking and you benefit economically from it, then you have liability for it. So then they’re incentivized to go all the way down to the farm level and see what’s happening and to change the practices that are giving rise to these problems.

Charity Ryerson:
We need a lot more civil cases and I would love to see criminal cases being filed by the government in that.

Anna Canning:
So, one of the strategies to stop corporate exploitation is to raise the cost through legal actions on behalf of those harmed. Cases like the ones we’ve been talking about with formerly trafficked child laborers suing Nestlé, Cargill, and the other big chocolate companies. But, as we’ve discussed a lot over the last few episodes, forced and child labor aren’t just an occasional issue in cocoa supply chains. They are baked into the system.
And that means that the vast majority of conventional chocolate products coming into the U.S. are tainted by forced and child labor.

AND – there’s actually a law against that. It’s

Charity Ryerson:
the Tariff Act of 1930, which prohibits the importation of goods made with forced and prison labor. So we filed a petition last year, is that last year? Yeah, last year on Valentine’s Day COVID year, you get kind of lost in it.

Anna Canning:
This petition asked US Customs and Border Patrol to stop chocolate containing cocoa from Cote d’Ivoire from entering the country given how common forced and child labor is in the industry. The technical term for that process is a Withhold Release Order, literally telling customs inspectors not to release those chocolate bars into the country.

Charity Ryerson:
So what CBP did when they received our petition is they issued a twenty-five part questionnaire to all of the major actors in the cocoa industry. They wanted transparency on a lot of policies and procedures, but also they wanted supply chain transparency down to the farm level. So until that point, until that survey was issued, a lot of companies were saying, “I just don’t know what farms we source from. I go to this buying company and this buying company takes the truck out and they drive around to these villages and they gather up the cocoa. But I don’t really know.”

The reality is the buying company knows exactly where all these farms are, right? Like, the buying company is fully aware. And that’s just a question they needed to ask the buying company. And to be honest, I think they all had asked their buying companies that question, they just took the position that they didn’t know.

So now that they’ve had to turn all of this information over to CBP,

Anna Canning:
That’s Customs and Border Patrol.

Charity Ryerson:
We know that they have it, and some companies have even taken the step of actually providing some of that transparency, but really just to the co-op or buying company level, they’re not still providing farm level transparency, which we really need. But so that means that it was kind of a use of the Tariff Act that caused some sort of trade consequences just by forcing them to produce information to CBP as a part of an ongoing investigation.

Anna Canning:
So you filed that a year ago, right? So, but chocolate with what we know as forced and child labor is still coming into the country, is there a timeline on that or is that just live in bureaucratic limbo now? How does that work?

Charity Ryerson:
Yeah, I think it does live in bureaucratic limbo. You know,, this tool, these 307 petitions, Customs and Border Protection has taken a lot of different actions. We also worked on one related to Xinjiang cotton. So the Uyghur Muslim internment camps in China that have gotten a lot of press and has been declared a genocide both by the Trump and the Biden administrations. We filed a petition saying that all of the goods coming out of those reeducation or prison labor camps should be stopped on their way to the United States. So in that case, they did issue a regional Withhold Release Order to block all of those goods from coming in. And then it’s on CBP and folks at the ports to actually stop the goods and to be able to trace them, which is another issue, right? What if they’re producing textiles in a Chinese prison labor camp, exporting them to Vietnam and then importing them into the U.S., is CBP going to be able to trace that? Under the law,

Charity Ryerson:
It says no goods made with forced labor in whole or in part. So anything that is tainted by forced labor should be stopped at the border under the law that is illegal entry. CBP doesn’t really have the capacity to fully enforce that law.

And, you know, from our conversations with them, I think that they’re aware that the cocoa industry is tainted. Everything coming in is tainted with the practices of forced and trafficked child labor. Like that’s kind of clear to everyone. I think the question is how would you enforce that? Right? If most of that cocoa is going out of West Africa and it’s going to Europe to be processed. And then from Europe, it’s coming in, in manufactured form, we’re talking about a taint in the raw product that is then mixed with many other products and a process and packaged, et cetera, before it comes to the U.S. That is very, very hard to trace.

Anna Canning:
Once again, we see how corporations have built supply chains to track down the cheapest ingredient all across the globe. And these convoluted supply chains they’re a feature, not a bug in the system. Am I sounding like a broken record? But as corporations have dodged taxes and hoarded more money for themselves, they’ve also left governments increasingly under resourced. The US government, one of the richest in the world, doesn’t have the capacity to enforce its own laws when it comes to halting the flow of goods made with forced labor. Or maybe it’s just that it doesn’t have the will.

Either way, these petitions to get Customs to hold chocolate made with forced labor at the border is another way of raising the cost of the status quo for corporations.

Charity Ryerson:
So I think that we need to create credible threats to the industry to try to get them to take the steps that they just obviously should’ve taken 20 years ago when they signed the Harkin-Engel Protocol.

Anna Canning:
The Harkin-Engel Protocol was that voluntary pledge by chocolate manufacturers to eliminate child labor in their supply chains that we focused on a lot in Episode 6. It’s the one where the companies made a promise to end child labor— and have now been giving themselves an extension ever since.

However, there is momentum growing to take some of those pillars of human rights responsibilities that we were talking about earlier and turn them into law—especially in Europe.

Charity Ryerson:
We need to see if some of the evolving legislation in Europe is going to give us a little bit more you know, opportunity here. It could be something where we’re moving toward an international norm that eventually the U.S. could even get on board with. Hope springs eternal. You know, but I think that if we don’t move in that direction, then we’re essentially saying that we expect to continue to live in an economy where everyone knows that every piece of clothing we’re wearing, every computer that we’re working on, every phone that we’re talking on, every cup that we’re drinking out of is made with conditions that none of us can really say that we can support, right?

If consumers understood that your $1.25 Hershey bar, if you sold that same Hershey bar for $1.32; if it all went to the farmer, you could be like doubling the farmer’s income, but realistically, some of it would go to the co-op and whatever, but we could be talking about an almost imperceptible increase in a consumer price on a lot of products in order to significantly increase the amount going to the producer of the commodity or the factory worker or whatever.

Anna Canning:
Charity isn’t pulling the numbers in this word problem out of thin air. A cocoa farmer gets just 6% of the retail price of a conventional chocolate bar. That 7 cent price increase she’s talking about would double a farmer’s income.

Although this isn’t just an issue of farmers vs those of us who want to enjoy a chocolate bar from time to time. Chocolate companies get 35% of that $1.25 chocolate bar and the grocery stores that sell the bar? Their cut is 44% of that $1.25.

Charity Ryerson:
I think people think, “Oh, you know, if we were going to have these really high standards, then all the goods that we consume would be too expensive.” No, that’s not true. What we need to do is either pass the price on to consumers, or we need to create a system in which companies are able to reduce their profit margin slightly in order to produce things in compliance with international law.

Charity Ryerson:
Now, because we have this shareholder primacy model where if a company reduces the profit of the company that can really result in a lot of negative consequences and their job is to maximize profits. And if they don’t do that, they’re not upholding their fiduciary responsibilities to the corporate form.

Anna Canning:
I have to confess, in my work, I probably say “put people and the planet before profits” at least once a day. But it’s not just a glib slogan, as Charity reminds me here. It’s actually a call to address the fact that in our current system, corporate CEOs have a responsibility to protect profits and shareholder value. They can actually get in trouble for putting people and the planet first.

Corporations can be dodging the Ivorian government’s efforts to increase the price that farmers earn, as we were talking about earlier, at the same time as they’re posting glossy photos about the good that their corporate social responsibility programs do in the world. And they don’t feel the same contradiction that I do when raging about their hypocrisy. Instead, they’re just carrying out their duties to make as much money as possible. However,

Charity Ryerson:
Shareholder primacy doesn’t mean companies can violate the law, right? And if certain practices are gonna expose them to liability or higher costs over time, then they can invest now in order to offset those. And so there are ways that we can make all of these different kind of constructs work together, however problematic they might be. But it does mean that we need legal liability. We need actual consequences. So that companies are forced to see this as a real cost of doing business.

Anna Canning:
Last episode, we talked to Terry Collingsworth who filed the case in the Supreme Court representing six former child laborers, who are suing Nestlé and Cargill. Charity filed two briefs in support of that case, pointing out that trafficking and child labor are not just another cost of making chocolate, but the result of Nestlé and Cargill’s priorities and business model.

There were two separate briefs, one on behalf of Tony’s Chocolonely, and the other on behalf of a group of 18 small to mid-sized chocolate companies. And, while there are differences in their supply chains and business models, all these companies agreed on one fundamental bottomline:

Charity Ryerson:
Yes, there should be corporate liability for aiding and abetting trafficking. And why did they say this? Well, their argument is that so long as these big companies are able to violate human rights; are able to violate international law and domestic law with impunity—it means that there’s not an even playing field. So the companies that want to do it right, and want to make sure that their goods are produced just legally. I don’t even mean at some extraordinarily high standard, but just in compliance with domestic and international law, they’re disadvantaged because they have to pay a higher price for that. And so while all of these big companies are undercutting the market by having free, illegal forms of labor in their supply chain, in order to support the extremely low commodity price that they pay, all of these other guys are facing, you know, a competition at the grocery store that is unfair to them.

And so I think that this is something that we need to think about when we think about letting companies off the hook for these kinds of practices. It means that the companies with the worst practices are always going to have a market advantage. And so the companies with the best practices are not going to survive. They’re going to stay really small. And it means that as consumers, we’re never going to have mainstream ethical options. We’re always going to be looking at a shelf full of goods, created in ways that are inconsistent with our values. And we won’t be able to move on past that. So that’s a really powerful argument that I would like to see made in Congress. I would like to see members of Congress really grappling with what that means for us in the way that we are suppressing small businesses by allowing these big companies to get away with these kinds of practices.

Anna Canning:
How did you, like in the course of putting together this brief, how did you go about vetting that, you know, these 18 companies were producing in a way that was free of child labor?

Charity Ryerson:
That might’ve been the hardest part. So in the briefs we go through and we talk a lot about their supply chain practices, because we had a lot of back and forth with all these companies. We wanted to show the Supreme Court justices, that there are models that work, and it’s not one model. It’s not that they all do the same thing. They actually all do it very differently. And especially amongst these small companies, they’re positioned differently. So if you’re growing in Hawaii, you are complying with Hawaiian labor law. And that’s really all we had to figure out. Are you complying with Hawaiian labor law? Okay, then you’re probably good to go. If you’re growing in Peru or Ecuador, there is just the reality that it is a lower risk environment in terms of human rights. So significantly less child labor, and there’s not trafficked child labor, at least not at this level in a lot of the countries of origin, for some of the smaller companies. They all have direct farmer relationships.

And they spend a lot of time going down and working with the farmers they source from. They have their own standards that are enforced in a number of different ways, but what a lot of them do is they pay a price that is significantly higher than the price, even in those countries. So, cocoa coming out of Ecuador is much more expensive than cocoa coming out of Côte d’Ivoire. These companies are paying much above the market price for cocoa in Ecuador, in order to ensure that their higher labor standards can be complied with. So they’re engaging in purchasing practices that create an environment that is more rights-respecting. So that was one thing that we were looking at was how much are you paying? How often do you go, what are your standards? What happens if there’s a violation of your standards? So we went through a long process with all of them and because all of their practices are so different that ended up making it, you know, pretty labor intensive.

Anna Canning:
As a good lawyer, Charity points out that this intensive vetting is really above and beyond the requirements of the case. That Alien Tort Statute where Nestlé is currently arguing for corporate immunity doesn’t even cover regular child labor. It’s only for the worst forms, for cases that deal with the trafficking of children.

Charity Ryerson:
If you have just the most basic supply chain due diligence, you can probably assure that you don’t have trafficked children in your supply chain if you are doing a reasonable job. So, the other thing I think is that the Tony’s brief is particularly interesting because I think that what Tony’s has done is, they’ve set up a supply chain system that is replicable by larger companies. So they get some critique over this, right? Because I think that some of the smaller companies are sort of more pure, right? They are working with one farm. It’s a really small supply chain. They’re producing a really small amount of chocolate. They can have this really intense, personal relationship with that farm, see things firsthand. They’re not having to hire third-party auditors that have sort of bad incentives and are coming in and checking boxes. And so those models might not be replicable for a company like Nestlé or Cargill.

And so they’re trying to create something that anybody can do. So that includes paying a higher price. They have pretty intensive relationships with the cooperatives that they work with. They have a supply chain transparency down to the farm level. They are working with one of the big agribusiness companies, Barry Callebaut, that a lot of other big companies work with, but they have a dedicated line for processing.

So, what they’ve done is they’ve worked with a company like this, but separated out their production so that it’s not going to be mixed with all of the other beans that were, you know, made by trafficked children, which certainly Barry Callebaut was processing a lot of trafficked child-produced cocoa. So then Barry Callebaut has a separate line for Tony’s. So, what they’ve done is they’ve kind of created this in hopes that others would replicate it. So there’s a little bit of tension, I guess, between, you know, some of the smaller companies and companies like Tony’s, but what they’re all doing is they’re all doing enough to make sure that they’re just not profiting off of trafficked child labor. That is not that high of a bar. We can have critiques of how anyone has their system, but we’re just saying no trafficked child labor.

Anna Canning:
And Barry Callebaut is one of the companies that is also in that suit that you filed on Valentine’s Day.

Charity Ryerson:
We named them in the 307 petition.

Anna Canning:
That’s where they’re calling on US Customs to issue a Withhold Release Order to stop chocolate at the border.

Charity Ryerson:
Because they absolutely are as involved as anyone else in importing, in causing the importation or benefiting from the importation of trafficked child produced cocoa.

Anna Canning:
So they know how to set up a system at this point, there’s a model for it. They are just, they have chosen to opt out of that model.

Charity Ryerson:
Right. Well, what they have done is they have chosen to sort of allow one company to pay extra for them to do a special service, which we should call the special service of complying with international law while allowing everyone else that’s getting processed for their facility to not comply with international law. And then they themselves are similarly not complying as a result. So, I mean, we can give them credit for doing this separate thing, but basically Tony’s is just paying them more money. So I don’t think that they are doing this out of the goodness of their hearts. I think they’re doing it because they got an extra premium in order to have a dedicated line.

Anna Canning:
Makes sense. And so back to, you know, those 18 small companies that you’re talking about, and, you know, you talk about the model where you go to the farm and you do the farm visit and all of that. But a lot of those companies, you know, they’re not necessarily certified, there’s not outside verification. How does one, how are you distinguishing that and what they’re doing from kind of that problematic CSR model that we started out talking about?

Charity Ryerson:
Yeah. So let’s talk about certification. I think that’s a good segue into certification, which is kind of a pet issue of mine.

Anna Canning:
(Laughter) Yeah.

Charity Ryerson:
I’m gonna tell you what I think about certification through an anecdote.

Anna Canning:
For this anecdote, Charity takes me back to her travels to Cote d’Ivoire, when she and her team were originally doing research into cocoa.

Charity Ryerson:
There’s 70-some odd ethnic groups in Cote d’Ivoire; they have all different languages. So we went to Baoulé communities and Anzi communities and Malinke in Burkinabé in order to get kind of a broader perspective. So, to try to get a sense of what is the experience of the cocoa farmer? How are they experiencing this? How do they look at the supply chain from where they sit?

So, we went and we did these consultations. We would sit down with groups of like small groups of farmers. We would do women farmers, this was a very patriarchal, an intensely patriarchal system. And a lot of these Ivorian ethnic groups in which women are not allowed to hold property or money. And so these are normally like widows who are still sort of overseeing a farm that their husband had owned. Otherwise you have almost no female ownership of farms. So we would sit down with each of these groups to try to get a sense of their perspective on what was happening. And we would always ask them about certification. And we would ask them about audits. Has anyone come out and visited your farm? What did they say to you? Did they have a checklist?

You know, we’d ask a lot of questions just to try to see how this playing out in real life. It was, you know, as someone who has been sort of critical of certification for a long time, I would say this was shocking. I was shocked. So we talked to farmers that had no certification. We talked to farmers who were Rainforest Alliance certified. We talked to other farmers who were Fairtrade certified and farmers that had been certified and then weren’t certified and kind of gone in and out of the model. A lot of certification is happening at the village level. So instead of it being farm to farm, it’s like the whole village and all of their farms surrounding which might be as small as two hectares. So a lot of really tiny farms will sort of be grouped together under a certification.

Anna Canning:
As an aside, this is pretty common in certification. Instead of having each farmer who has a tiny plot of land handle all the paperwork solo, the certification is managed by a central cooperative or association. That cooperative is then supposed to have internal control systems to keep track of who’s certified, how much they’re producing, and otherwise administer the certification. But that’s not what Charity saw.

Charity Ryerson:
So, we talked to them about all of this and the most fascinating thing was that the farmers that were certified, one, almost none of them had ever seen any of the premium. So all that extra money that’s supposed to be getting down to the farmer. They’re not seeing it. And if they are seeing it, it’s in a very small amount. And if they’re seeing it, they don’t know in advance how much it’s going to be. So they don’t have any ability to change their farming practices in preparation for this.

Anna Canning:
OK, time to talk certification details again. The fairtrade premium that Charity is talking about here is that additional sum, $240 per metric ton in the case of cocoa, that buyers pay for cocoa purchased on fair trade terms. That money gets paid to the farmers’ cooperative, and the co-op is supposed to decide democratically how that premium money gets spent. I checked Fairtrade International’s data on premium distribution for cocoa. Overall, 45% of those premium dollars stay with producer organizations to do administrative sorts of work, staff training, offices, the work of maintaining the certification. Direct payments to farmers make up about 21% of premium spending.

And that part where farmers don’t know in advance how much their premium is going to be? That’s because the premium is calculated based on the amount of cocoa sold on fair trade terms. On average, 30% of the cocoa from fair trade certified farmer organizations finds a fair trade buyer and gets that premium. And while advocates like us have long said that more needs to be done to prioritize long-term relationships and more predictable contracts from season to season, that’s not a requirement.

This premium issue is a sticky one – and really points to the limits of market-driven change. Let’s be honest. Fair trade marketers have really overstated what this fair trade premium can do. Fair livelihoods for farm families, clean water projects, schools, agricultural extension services, stronger cooperative organizations, professional staff, the list goes on. But the money certainly doesn’t.
By Fairtrade’s own calculations, their minimum prices fall short of living incomes for farmers. But what happened when they last raised that minimum price? Well, Nestlé dropped Fairtrade certification for one. Now, back to the Ivorian farmers.

Charity Ryerson:
So, now what you have is a farmer who is vaguely aware (and sometimes really vaguely aware) that maybe they’re supposed to be complying with higher standards in terms of pesticide usage, child labor, the children using machetes, et cetera. They might be aware on some level though, the level of awareness varied a lot, that that is the case, but they have no additional money or resources or training in order to achieve that.

Now, in some cases they hadn’t received any money, but they had received a training or their co-op had offered a training that maybe they went to or did not. Only one farm was able to tell us that someone from Fairtrade or the co-op representing Fairtrade had ever come out to inspect their farm. And they said they got a call in advance so that they could clean up all the pesticide bottles before the person arrived, which we assume would also mean they would get the kids off of the farm before the person arrived. So we didn’t see a lot in terms of monitoring. We didn’t see a lot of benefits to farmers, but this is the thing that I think was really the most shocking, is when we went out there, we wanted to give all of these farmers like various chocolate products that are sold in the U.S. Just cause I didn’t know the extent to which they would have experienced this.

But so we would, we would come with a Hershey bar or some kind of standard chocolate bar and a fair trade chocolate bar. We would hold them both up. And we would say, this is, you know, the Hershey bar retails at, I forget $1.29. And this fair trade chocolate bar retails at $3.50 and the consumer is buying this fair trade chocolate bar in part, because it has this label here. And so if you’re certified fair trade, then your cocoa can go into this bar and they’re willing to pay three times as much as they are for the other bar. People stood up, they yelled, they threw their fists in the air, the level of outrage that they felt. It was kind of coming home to them that they are jumping through hoops or being in the system where they don’t really understand why they might be getting a premium or not getting a premium. It’s this really confusing thing, but it’s this conversation they’re really a part of because they’re just trying to figure out how to get more money. And they’re realizing that there is a massive profit being made and it is not by them. It’s a profit that’s being made off of their backs and they are not benefiting from it.

Charity Ryerson:
And so I think that my critique of the certification model in general, Rainforest Alliance, et cetera, is that it’s a model in which the certifiers are incentivized to over certify. And that is exactly what you see, right? You don’t see what we remember of fair trade when it first started. And it was small coffee co-ops, little family-owned businesses that were getting certified to support these small farmers. That was the origin of the model. And that’s great, but once it mainstreamed and went multinational, it just became kind of a pay to play, right? Companies once like Mars or, you know, all of these big companies started saying, I want 20%, 50%, 90% of my cocoa to be certified.
It ceased to mean anything. So the standard got so watered down that for the farmers, it became meaningless, but for the consumer, it continued to result in a much, much higher price. And so that gap where fair trade and certification essentially becomes a marketing ploy that benefits global North companies and does not benefit farmers. That’s kind of scandalous, right? That’s a real scandal.

Anna Canning:
In Episode 4, Merling Preza gave us her perspective of what this dilution has looked like from her perspective as a leader in the fair trade movement. This push for more “certified” and “sustainable” volume is leaving behind the very people it is supposed to benefit.

Charity Ryerson:
And so when we were going through the process of figuring out who we thought qualified to join our Amicus brief, we did not look at certification. So if someone was certified, and many of them are, that was irrelevant to us. No amount of certification is going to make me think that your farmers have any different circumstances, whether in terms of how much they earn, what the conditions are on their farms, whether or not there’s child labor, whether or not there’s trafficked child labor.

Anna Canning:
Charity’s skepticism of how certification is working in the West African cocoa sector is merited. In 2018, a report looking at forced labor on cocoa farms in Ghana attempted to compare conditions for workers on certified vs non-certified farms, but 95% of cocoa workers surveyed didn’t know whether the farms they worked on were certified or not. There was no way to reliably compare. Many farmers were also unaware of standards they were supposed to be complying with. Just last summer, Danish investigative reporters found children working on four of the six Fairtrade certified cocoa plantations they visited. And other certifications are even worse. Utz Certified, now part of Rainforest Alliance, have had a steady stream of revelations of child labor and forced labor on farms they certify.

Charity Ryerson:
At that point, it is utterly meaningless and it’s just a PR ploy. Now I do think that Fairtrade amongst the certifiers is actually one of the best. So you can hear my gentle critique here. When in fact the rest of them are worse. Like they never had roots in small farms and actually trying to support family-owned farms and that sort of thing. Like a lot of them have been kind of a PR ploy from the beginning. So the Rainforest Alliance kind of model is something that, you know, honestly is just a scam on consumers to the detriment of the people that produce the goods that we buy.

Charity Ryerson:
But I do think that there’s a lot of really good people at Fairtrade and there’s lot of really good people involved in these systems. But as consumers, we just can’t trust it until they get it together and make it a system that actually works.

So ignoring certification, we were going through this process, which we did entirely. And I think that we did that in order to figure out who could be on our Amicus brief, but I would encourage consumers to ignore certifications when you’re making purchasing choices, unless it’s in an industry in which you have a lot of knowledge about that certification about their system and what they’re doing. And I do think that it’s very hard for consumers to get that level of knowledge.

Anna Canning:
OK, I should jump in here, right? Because here at Fair World Project, we’ve put a lot of resources into trying to do this education. We’ve created a whole Reference Guide to Fair Trade Labels and written multiple reports ranking and evaluating certifications.

But those guides are pretty impractical when you’re actually in the store. The highest ranking labels are virtually impossible to find on the supermarket shelf. And we’ve chosen to leave Rainforest Alliance, the most common chocolate certification, off our guides entirely because they just don’t meet our minimum cut for an ethical label.
Charity mentions that push for corporations to increase their certified volume by any means necessary— and how that’s led to dilution of standards, and a push to get more farmers certified, even if they don’t even know that they are certified or not. And that’s why over the years, our guides have gotten longer and more complicated.
Find out who owns the company, look at where the ingredients come from, look at what percentage of the ingredients there are. And then of course we’ve got a list of Mission-Driven Brands on our website too – and maybe half of them don’t even do certification for all the reasons we’ve just been discussing and more. It’s a hole we’ve been trying to plug for way too long. But the reality is that certification just isn’t filling the role that it says it does. Fifteen years ago, there was a whole campaign telling people to “Look for the Label.” But now, it’s more complicated.

Charity Ryerson:
It’s do your due diligence. That said, buy local. You know, I mean, I realize that that really limits what you can buy. Can you buy a local computer? Nope. You know, but I’m just going to say the electronics industry is so fraught that you’re probably not buying a computer based on ethical concerns because you don’t have an option.
I myself purchase a lot of things secondhand, I realize that doesn’t solve the whole problem. But at least there’s a little bit less of that over-consumption aspect. I do try to buy from small companies or, yosu know, like women-owned co-ops in Kenya.

I have really great jewelry, you know, but there’s a lot of products that we just can’t purchase ethically. We need to come to terms with that and to focus on systemic solutions. And maybe that means supporting organizations that are doing that. Maybe that means instead of voting with your purchase, you’re voting with your donations. Maybe that means writing to your Congress-people and saying, I really want mandatory Human Rights Due Diligence legislation. I want to see something being done about corporate capture. You know, part of the reason why the laws on the books in this country are as company-friendly as they are, is because of campaign contributions and political donations.
So if we want to see better supply chains, we need a Congress that is able to hold companies accountable for what they do in their supply chains. And if we want that Congress, we’re going to have to deal with the fact that there’s a massive amount of corporate money flowing into our political system. So we have a lot of problems and there’s a lot of ways that you can come with this, but it’s probably not by buying a certified product.

Anna Canning:
I think you actually sort of started to answer what was going to be my next question, which is, you know, we’ve talked a lot about the shortcomings of voluntary programs. And so in the chocolate trade, what sort of solutions would you like to see?

Charity Ryerson:
There’s a lot of steps that could be taken. And while none of them are going to work in isolation, we need all of them. So fighting on any of them is valuable. Farm level transparency should be the norm. And we are moving that direction. We have made real progress there, but until you know exactly where a good is coming from, you cannot hold a company accountable for the harms that happen to workers on that farm or in that factory. And so that’s true of the cocoa sector, but I think it’s true in all sectors. We need farm and factory level transparency across the board.

Also, we need to focus less on compliance with standards that companies create or that someone else creates and companies try to enforce and more on the power dynamics that happen between suppliers and buyers. So, buyers need to recognize the ways in which their purchasing practices create abuses.

The reality is if I’m a buyer, what I’m going to do is I’m going to say, here’s the price that I’m willing to pay for the product. Here’s how quickly I want it. Here’s my quality standards. And maybe I’ll throw in some labor standards. But the reality is if, if those terms, if the time period is too short or the quality is too high and the price is too low, if you put all those together, you’re creating an environment in which abuse is going to happen. If you cannot produce the good for the price that is offered, then there will be abuses, full stop. So I think that companies need to be held responsible for their purchasing practices. And that’s where we need to focus a lot of our energy.

Charity Ryerson:
So I think if the company is acting surprised about lack of compliance, we need to just get over that. To get over finding that credible because at this point with the amount of information that we have and the amount of really detailed information that companies actually have about their own supply chains that’s just not credible anymore.

Anna Canning:
Yeah. But it’s really a matter of power and not of more policing.

Charity Ryerson:
Right. Absolutely.

Anna Canning:
Yeah. So I think I just have one last question for you and what would a truly fair chocolate trade look like to you?

Charity Ryerson:
Yeah, that’s a great question. I think a fair chocolate trade. I would start with the farmer and work my way up. So, that would mean that farmers have a choice to be in this industry or not. So they get to decide what industry they want to be in because they have options. They’re not trapped. Which is the case here, because farmers become so indebted over time because they’re getting a price at the end of the season, they have to incur lots of debts.
And so by the end of the season, when they get the money and they go, “Oh my gosh, this doesn’t even cover my last season’s debts.” So they’re going into the next season in a negative. Any system in which that’s the case is obviously not part of the vision. So it needs to be economically viable. Farmers need to have options. Governments need to create the infrastructure that allow kids to go to school. They need to create the roads that allow farmers to be able to get their goods to market. And if a farmer, like I was mentioning earlier, if a farmer does a really good job and is working hard, producing well, producing a good product, they should be able to be wealthy. That should be possible.

Charity Ryerson:
So I think that a system in which there is just a genuine relationship between the work that’s done and the amount of money that the farmer can earn is important. And so then that is going to have impacts all the way along the supply chain. So if that’s the case, then that means that the amount that’s being paid for cocoa is significantly higher. And then that means that the middleman companies, maybe some of them would be eliminated. Maybe you would have a more direct relationship between farmers and buyers that could help with some of the problems that are going on.

And then at the buyer level, they are accountable for everything that happens on that farm. Anything that they did, that their purchasing practices contributed to there should be legal liability for. And I think that would really incentivize them to create a context in which all of these things can happen.

For the consumer. I think that might mean that your $1.20 chocolate bar might cost you $1.80. So that’s part of my ideal world, which is paying a $1.20 for your chocolate bar. You pay $1.80. I’m sorry, but chocolate’s a luxury good. And if you can’t pay the $1.80, then you’re just not paying the price that it costs to produce it.

Anna Canning:
Yeah. Well then it seems like there’s also a lot of room within those corporate balance sheets for maybe a little less money to go to shareholders.

Charity Ryerson:
Yeah. I mean, I think that until companies find a way within their structures to squeeze those profit margins a little bit just to comply with the law seems basic. It seems like this should be happening and should, should have been happening for years and years. But it really does speak to a deep flaw in our system. So yeah, I would love to see companies absorbing a lot more of that cost and not passing it all along to the consumer. And you know, I think that the reality is you’ve got, you’ve got two pretty good options and the consumer and the company could split it.

Charity Ryerson:
I don’t have religion on how that plays out. I don’t really care. I think that it’s just important that we just pay people for the work they do.

Anna Canning:
Yeah. That’s, that’s a pretty good bottom line. Although I would say we shouldn’t leave the retailers out of that, too.

Charity Ryerson:
Right. And I think retailers do play a really important role here in that, you know, from where they sit, they consider themselves as just buyers, like no responsibility. Imagine I’m a Walmart, I’m a Target any kind of big box store. They’re just buyers. And they have no responsibility for what happens, but they are sometimes a significant player in pushing down those prices. And so while it is easy to put all the responsibility on the brands, and I do think they deserve a lot of the responsibility. It’s also true that you do have one more layer of the retailer who, who plays a role in enforcing and keeping up this whole system.

Anna Canning:
These changes all along the supply chain could make for a more fair chocolate trade. But as we turn to parting thoughts, we’re back to Nestlé, and the case suing them under the Alien Tort Statute in the Supreme Court that we talked about last episode. The stakes are extraordinarily high. If the court decides against the formerly trafficked child laborers and in favor of Nestlé and Cargill,

Charity Ryerson:
They are not just closing down the courts to victims of child trafficking. That’s going to apply to victims of genocide, crimes against humanity, extrajudicial killings, torture, anyone who might be able to bring a case against a corporation for an egregious human rights violation. So the risk of this case going the wrong way is that similarly situated plaintiffs across many different industries who experienced all kinds of harms would not be able to sue companies who were involved in the harm that they suffered when those companies are at home. So people who are victimized overseas need to be able to come to a place where the company that harmed them can be brought into the courts because there is personal jurisdiction. So if we lose that, that means that victims are left with their local court systems in which they might not have jurisdiction over it. And it creates a safe haven in the United States for companies who are human rights abusers. And I think that some of the worst companies would then be incentivized to come here because they know they can’t be held accountable here. And that’s a real risk that this case poses.

Anna Canning:
I think it would do really bad things. And I mean, we talked earlier about the tide of human rights, due diligence going in one direction in Europe, and that would be really bucking the international trend.

Charity Ryerson:
I think that’s right. And 10 years ago, the conversations that were happening in the courts about the Alien Tort Statute, were that the United States was going to be an outlier by having too much liability. But now the context has shifted, right? Now, the United States is going to be an outlier for having not enough liability, even if we keep the ATS. So even if the court rules with us here, they still are not creating a system in which companies in the United States have the level of liability that most European companies are probably going to have over the next five years. So we will still be a laggard, but if we get rid of the statute, it’s not that our companies will be held to a higher standard than anyone else. It’s only these most egregious, the Alien Tort Statute does not cover child labor. It doesn’t cover even really hazardous child labor. It doesn’t cover all kinds of just egregious and terrible things that happen to people, like horrible human rights violations are excluded from the scope of the Alien Tort Statute. So we, we’re only talking about, can we hold U.S. Companies accountable here in the U.S. in our courts for the most heinous things that they’re involved in around the world? So I am concerned about what that’s going to look like if the court says no about what that makes the U.S. into.

Anna Canning:
Yeah. Do you have ideas up your sleeve for what comes next then?

Charity Ryerson:
There’s a lot of conversation about legislation. I think we need to be moving in that direction. So we do, we would like to see mandatory human rights due diligence legislation in the United States.

Anna Canning:
There are a number of ways to address these issues by passing laws. But once again, the stranglehold that corporations have on our political systems come up.

Charity Ryerson:
Again, the corporate capture issue is a real problem for getting any of this legislation through, and that’s a bipartisan problem. So even though we are certainly pushing things forward, we’re also looking at a bill related to Xinjiang cotton. And I think the hope is because Xinjiang cotton is a bipartisan issue, a lot of people have political reasons to go after China, even if they don’t really care as much about the genocide against the Uyghur Muslim population, which is disturbing, but there’s a political incentive for that to go through. Could that become a model that can be expanded to try to address some of these egregious supply chain abuses even outside of the Xinjiang region? That seems like a possibility. So we’re certainly thinking about all of these things and toying with different proposals. But if we don’t deal with the corporate capture problem, I don’t know how likely it is that we’ll be able to get something passed that really has teeth. I think we could get something passed that is weak. That would allow a lot of members of Congress to show themselves as though they’re being tough on companies. But if we want something like civil liability under any of these statutes that would allow victims to bring claims and get remedy for themselves for the harms that they suffered, that’s a pretty heavy lift in a captured Congress.

Anna Canning:
Well, we’ve got our work cut out for us.

Charity Ryerson:
Was that too negative?

Anna Canning:
No, no, no. I feel like that’s real. I think it’s realistic and we have a whole lot of work to do. Yeah. All right.
Well on that bright and sunny note,

Charity Ryerson:
This was fun (laughter).

Anna Canning:
That little back and forth there, the question, “is it too negative, or is it just real?” has been a chorus in my head as we’ve worked through these episodes. I’ve brought you along through some pretty real conversations weighing the question of what comes next. So if you’re still here, thank you!

Throughout this series, we’ve heard the voices of so many people. Along the way, we’ve seen how the legacy of so many long ago decisions continues to shape – and rig – the chocolate trade, and all its ingredients today. These farmers don’t just happen to be poor. The long colonial history of exploitation created that poverty. Over the centuries, farmers in West Africa have been consistently robbed of the value of their crops and their labor. The trans-Atlantic slave trade grew up alongside the chocolate industry – and the industry continues to rely on forced and unpaid labor. Meanwhile, the wealth extracted from those West African communities is hoarded up by corporations based in the US and Europe.

I bring this up not to guilt those of us who live in those countries, but to point out that these corporations are in our own backyards. It’s up to us to hold them accountable – whether that’s Joanna from Fairtrade Yorkshire bringing cocoa farmers’ demands to Nestlé’s factory in Episode 5, or Robin and Rainforest Action Network campaigning for an end to conflict palm oil in Episode 3, or the lawyers hauling Nestlé and the other big chocolate companies to court. It’s not just a few bad guys—the system is based on extracting everything possible from people and the planet we share.

Over the last few episodes, we’ve heard repeatedly how Nestlé and other big chocolate companies keep giving themselves an extension on ending child labor in their supply chains. How they’ve tried to dodge the attempt to raise prices for all cocoa farmers in Cote d’Ivoire and Ghana.

Hollow ethical claims and labels are just giving them an excuse to maintain business as usual, papered over with a lot of pretty pledges. We’ve heard a lot of criticism of certification in this episode—and there’s a lot of work that needs to be done to make real change. But the last change that we need is for more companies to decide that now is the time to come up with yet another top-down Corporate Social Responsibility program with a nice label.

And if you’re mad about this conversation, I hope you’re a little mad at the part where all of this has been turned over to the “consumer,” that mythical figure that you and I become the minute we enter the grocery store. We’ve been sold the idea that we can be heroes, changing lives and doing good in that one moment in the aisle. I don’t buy it. I don’t believe that we are at our most powerful when we’re tired, hungry, on a budget, and facing down billions of dollars of misleading marketing all alone. I believe so much more is possible. Changing these big systems requires us to reach out and to join our work with others. Instead of a single purchase sold by a feel-good story and a shiny label, what can we invest in for the long-term? Instead of striving to be conscious consumers, can we be connected humans?

The foods we choose can nourish us, be the starting point for conversations, and feed us for the work we have before us: to transform this system—together.

Dana Geffner:
Throughout this series, we’ve shared the stories of people building the kind of world I want to live in. Small-scale farmers in Paraguay building a farmer-owned sugar mill and a community-controlled food system that can feed their families and create opportunities for young people. Farmers in Ghana building regenerative, organic farms that contain a diversity of crops, such as palm, mango, cocoa, and all the creatures of a thriving ecosystem. The knowledge and skills to create a thriving food system that can nourish people and address the climate crisis already exist. The world doesn’t lack for solutions. They just aren’t profitable enough for the people and institutions who have rigged the system in their own favor.

In our work at Fair World Project, we try to help decipher that rigged system. We’ve written guides and reports, done presentations,and all that to try to cut through so much of the noise. But here’s the thing. All the certifications in the world still boil down to the hope that a corporation is going to decide that it’s in their own best interest to choose to act ethically. Meanwhile, the system is built to incentivize a race to the bottom. And in trying to get those corporations to participate in certification, the bar gets lowered. We end up defending less than a living income for farmers because to pay more would be unpalatable for big buyers—all on the hope that someday we’ll get them there.

But here’s the thing. Human rights aren’t something that you work up to eventually. They’re called human rights because we’re all born with them. We’ve seen multinational corporations give themselves extension after extension to end their exploitative business practices. But when will they decide that the time is right? After they have extracted enough wealth out of communities around the globe? After yet another generation has aged out of child labor? After our planet is uninhabitable? We can’t keep letting corporations give themselves another extension.
I’ve spent over a decade working in the fair trade movement, advocating for and alongside small-scale farmers and artisans, and the people building businesses dedicated to fair trade principles. I’ve worked with retail buyers to dedicate more shelf space to those brands, and to increase understanding of the distinctions behind the different labels. It’s important that we’re literate about what those labels all around us mean. But when I return to the values that got me started down this path, it’s clear that it’s going to take more to shift the balance of power in our global food and trade systems. If we really want to put people and the planet before profit as we often say, we need to make fundamental changes. Until we do that, the companies with the worst practices will always have the market advantage.

The end of Charity and Anna’s conversation went through so many of the changes that we need to make—there is plenty of work to be done. And it’s not just work that needs to be done over there, in some distant supply chain. The work needs to be done here, in our own home towns and in our own communities. Those corporations exploiting farmers and workers around the globe are doing it in our own hometowns as well. They’re driving down wages, cutting corners on protections, outsourcing jobs, and buying off our elected officials. In our globalized world, all these struggles are connected.

We’re going to be wrapping up this series on the KitKat bar, but stay subscribed as we’ll continue to bring you updates and fresh conversations between now and when our second season comes out this summer. And join our email list at FairWorldProject.org for more action steps to keep building together.
Has this series left you with questions on chocolate and what an ethical future might look like? Join us for a live online conversation coming in early May. Follow us on social media to get the details for registration—we’d love to hear what you’re thinking!

Dana Geffner:
You’ve been listening to For a Better World, a podcast by Fair World Project. If you enjoyed the show, make sure to subscribe, review, and share with your friends.

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Fair World Project is a nonprofit organization and we rely on donations to keep our work going. If you liked what you heard or learned something new, consider becoming a monthly donor. Your contributions help us continue to bring stories like these from around the globe. Follow us on Facebook, Instagram, and Twitter to stay up to date between episodes.

For a Better World is made possible by our small (but mighty!) team:

Our show is edited by Stefanie De Leon Tzic.
Jenica Caudill is our Producer.
Anna Canning is our script writer.
Our storytellers are Ryan Zinn and Anna Canning.
Our music was composed by Mark Robertson.

And I’m your host and the Executive Director of Fair World Project, Dana Geffner.

Thanks for listening.