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Hershey lawsuit (re child labour in Côte d’Ivoire)

In 2015 and 2018, American consumers filed two separate class action lawsuits against The Hershey Company (Hershey’s), in California and Massachusetts U.S. district courts respectively. The claimants allege that the company violated these states’ consumer protection laws by not disclosing that their cocoa suppliers in Côte d’Ivoire rely on child labour. In both cases, federal jugdes dismissed the cases, ruling that the claims were not actionable under the consumer protection laws invoked.

 

 

Dana v. The Hershey Company et al.

On 28 September 2015, the Hagens Bergman Sobol Shapiro LLP law firm filed a class action lawsuit against Hershey's on behalf of Laura Dana and Californian consumers in front of the US district court for the Northern District of California. The claimants allege that the worst forms of child labour are used in Côte d'Ivoire to produce Hershey's chocolate products, and that the company's failure to disclose this information to consumers at the time of sale violates the state's consumer protection laws. They further allege that they would not have bought the company's products had they been made aware of the conditions in which they had been produced. They referred to reports by the US Department of Labor Bureau of International Affairs which show that cocoa from Côte d'Ivoire is very likely to be the result of forced and child labour. The claimants argued that Hershey's advertising practices violate the California Unfair Competition law, the Consumer Legal Remedies Act, and the False Advertising law.

On 13 February 2016, Hershey's asked the California federal judge to dismiss the class action, arguing that it did not actively conceal information or make misleading representations, and that California law does not require disclosure regarding working conditions in a company's entire supply chains. The company argued that the California Transparency in Supply Chains Act only requires disclosure of efforts made to eradicate slavery and human trafficking from a company's direct supply chain.

On 29 March 2016, the chief magistrate judge dismissed the claim, stating that it was sound policy not to place duties on manufacturers to disclose certain facts about their products, as the courts are not suited to determine which issues are legitimately important to customers. Moreover, the judge concluded that while working conditions at some of Hershey's suppliers were deplorable, the issue could not be addressed through the California laws invoked in the class action.

Tomasella v. The Hershey Company et al.

Following the dismissal of the California lawsuit, the same law firm filed a class action lawsuit against Hershey's on behalf of Danell Tomasella and consumers in front of the US district court for the Northern District of Massachusetts. The claimants allege that Hershey's is misleading consumers and profiting from child labour by not disclosing that their cocoa suppliers in Côte d'Ivoire rely on the worst forms of child labour. This claim relies on the argument that Hershey's human rights, sustainability and corporate responsibility statements - which assert the company's "zero tolerance" for trafficking and child labour - constitute a violation of the Massachusetts Consumer Protection Act.

The claimants allege that Hershey's was aware of the risks of child labour in its supply chain, failed to disclose this information at the time of sale, and that consumers were therefore deceived into buying a product that they otherwise would not have bought. The claimants do not refer to specific instances of child labour in the company's supply chain, but rely on reports citing the extensive use of child labour in cocoa production in Côte d'Ivoire and on Hershey's public disclosures that the country is one of their primary sources of cocoa.

On 19 April 2018, Hershey's filed a motion to dismiss and argued that Massachusetts law does not force companies to disclose the presence of slave labour at the time of sale, and that to do so would be "impractical". The company further claims that it has publicly disclosed information about labour practices of its suppliers in West Africa and has been transparent about the steps taken to address these issues.

In January 2019, a federal judge in Boston dismissed the lawsuit because the consumers' claims were not actionable under Massachusetts law and they failed to show that the companies deceived them.

In June 2020, the 1st US Circuit Court of Appeals upheld the dismissal of the class action lawsuit, alongside similar lawsuits filed against Nestle USA Inc and Mars Inc, accusing the companies of misleading consumers by failing to disclose use of child labour by their suppliers on their products' labels.

News:

- Circuit upholds dismissal of cocoa child labor class action, Reuters with Westlaw, 17 June 2020
Nestlé, Hershey say no room for child labor on labels, Law360 [subscription required], 20 April 2018
Consumers bring child labour claim against Hershey’s, Coffee & Cocoa International, 3 April 2018
New Human Rights Case Alleging Deception of Consumers Filed Against Food Companies (This Time on the East Coast), JD Supra, 7 March 2018
Hagens Berman: Chocolate Makers Hershey’s and Mars Hit with Lawsuits over Alleged Use of Child and Slave Labor, BusinessWire, 26 Feb 2018
Hershey and Nestlé cocoa slave labor lawsuits dismissed, Confectionery News, 30 Mars 2016
Nestle, Hershey dodge child slave-labor disclosure suits, Law360 [subscription required], 29 March 2016
Was your Easter Chocolate Made with Child Labor?, Fortune, 25 March 2016
The Shocking Child Slavery Claims About Your Favorite Chocolate Bars, Refinery 29, 30 Sep 2015
Chocolate Giants Face Slave Labour Lawsuits, Courthouse News Service (USA), 29 Sep 2015
-  Mars, Nestlé and Hershey face fresh cocoa child labor class action lawsuits, Confectionery News, 29 Sep 2015
Hershey, Nestle, Mars Face False Ad Suits Over Child Slaves, Law360, 28 Sep 2015

Company documents:
Shared Goodness: Hershey’s 2016 Corporate Social Responsibility Report, Hershey's, 2017
Shared Goodness: Hershey’s 2015 Corporate Social Responsibility Report Highlights, Hershey's, 2016

Court documents:
Tomasella v. The Hershey Company et al. [subscription required, all court documents]
- Dana v. The Hershey Company et al. [subscription required, all court documents]

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