State consumer-protection law can't be used to sue chocolate makers over harvesting of cocoa beans by child slaves, court rules

If a Cape woman wants to fight Nestle, Hershey and Mars over how some of their cocoa beans are harvested in Cote d'Ivoire, she's going to have to find a different method than the Massachusetts consumer-protection law, a federal judge ruled today.

The law, known as Chapter 93A, bars companies from deceiving consumers. In a federal lawsuit she filed last year, Dannel Tomasella of Buzzard's Bay, charged she was deceived by the companies over the source of some of their chocolate and that she would have given up buying everything from Milk Duds to Toll House refrigerated cookie mix at various stores on the Cape and in Plymouth years ago had she known child slaves were used to harvest beans in the African country.

Tomasella was hoping to become the lead plaintiff in class actions against the three companies for other Massachusetts consumers who felt similarly deceived under

US District Court Judge Allison Burroughs wrote today that she did not dispute that the use of child slaves in Cote d'Ivoire was "widespread, reprehensible, and tragic."

But, she continued, the Massachusetts consumer-protection law can't be used to fight it in this case, because the law relates to the composition and labeling of the products, without requiring any sort of mentions on labels of how the basic materials for the products - in this case, cocoa beans - were collected. In her ruling in the Mars case (with similar text in her Hershey's and Nestle decisions), she wrote that Tomasella:

[P]remises her theory of liability on the omission of facts that have nothing to do with the central characteristics of the chocolate products sold, such as their physical characteristics, price, or fitness for consumption. Moreover, Plaintiff does not claim that Mars has made any false statements about child or slave labor on its product packaging, or that Mars' omissions turned an affirmative representation into a misleading half-truth.

She also rejected Tomasella's claim that the use of child slaves was simply "unfair" to consumers:

The Court finds that Plaintiff has failed to allege that Mars' omissions are within the penumbra of any common law, statutory or other established concept of unfairness. Plaintiff argues that Mars' conduct falls within “well-established international concepts of unfairness” because the United Nations' 1948 Universal Declaration of Human Rights, the United Nations' International Labor Convention No. 182, and the Tariff Act condemn child or slave labor. [ECF No. 21 at 10–12]. Plaintiff's Complaint does not allege that Mars violated Chapter 93A by utilizing child and slave labor, however. The crux of her claim is that Mars engaged in unfair conduct by failing to disclose the existence of child and slave labor in its supply chain on the packaging of its products. In other words, Plaintiff is complaining about this omission and not about the underlying conduct. Plaintiff has not identified any common law or statutory authority requiring such disclosure, nor has she set forth any established concept of unfairness tethered to the disclosure of the labor abuses of a manufacturer's supplier.

Tomasella complaint (1.2M PDF).
Ruling in Mars case (83k PDF).


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Enrichment was not likely her

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Enrichment was not likely her goal, in forming a class action for suits like this with relatively low damages, the plaintiffs rarely win much after the lawyers are paid. Often in a case like this they would estimate how much chocolate that each member of the class would have purchased and then possibly triple damages would be awarded, so probably less than $100, maybe a little bit more, but not nearly enough to make it worth pursuing. Class actions are often more about punishing bad or unfair behavior at companies than enriching the plaintiffs.

Her suit seems to be more about shining light on this awful practice which she has now done. I had no idea until I read this and her complaint.


Not much to ask

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We should give up consuming chocolate from large corporations like Nestle. From now on, it should be only broken off blocks of artisan-type, more expensive dark chocolate wrapped in paper which I'm sure is fine.

Thoughts and prayers are with the children. Are there any FB groups or other social media organizations raising awareness which we can easily join?

For those who've been paying attention...

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Thoughts and prayers are with the children. Are there any FB groups or other social media organizations raising awareness?

For those who've been paying attention, this has been a known issue for years. It was one of the main drivers behind the fair-trade industry.

The snark really is unnecessary.


so, it worked then?

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other than to bring it to people's attention (including me.)

it brought it to your attention, which is a necessary first step for most consumers.

i don't know what her or her attorneys' end game was, personal enrichment or not, but I know that this is part of the process - working through the available legislation and jurisprudence to find something that sticks. and along the way, you make more people aware of the fact that chocolate (and coffee) come from some unpleasant places.

aside from the principle of universal jurisdiction, united states law specifically allows for courts to hear cases of human rights violations committed in other countries. unfortunately, the Alien Tort Statute has been weakened significantly over the last 20 years. so, you have to move on to other possible legal options. it's not insane and it's not necessarily useless.

Foregone Conclusion

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These judges know ahead of the ruling that they're not going to rock the boat and do something that might lead to wholesale changes or reform in some multi-billion dollar industry, regardless of the merits of the particular case before them. The path of least grief is to throw the little guy under the bus.

I didn't hear the entirety of the arguments, but the statements in the ruling indicate that the plaintiff could very well have been said to have stated a plausible claim. But of course, every conclusion by the judge eventually somehow ends up back to dismissal. By throwing it out at the motions stage, the judge has protected the corporation from having to argue their case on the merits before a jury of regular people.

What merits? The case is

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What merits? The case is over consumer protection law, which the judge ruled was not relevant, since there's no evidence that consumers were harmed. Why should the company have to go through the time/cost of a jury trial to defend what the judge could see is a meritless case?

If there was a law requiring ethical sourcing (or if Mars publicly claimed they did ethical sourcing) then the outcome would be completely different. But that's for the legislature to decide, not the courts.

Is this going to have an

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Is this going to have an effect on the AG using those same laws to go after petroleum companies?

Sourcing ethical chocolate

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is nearly impossible to do. I've found a handful of manufacturers that actually fly someone out to the cacao plantation to verify that there's no human trafficking happening before they contract for beans, but that's literally the only way to make sure you're not supporting slavery in your chocolate purchases--all the big collectives that the big players buy from are complicit in buying beans from farmers who use slave labor.

Happily, one of those ethical collectives is local: Rogue Chocolates, just outside Springfield, does all their own manufacturing, and hand-sources beans from farmers they've developed in-person relationships with. Unfortunately, it's $10+/bar, and most people would rather buy a Hershey bar for 10% the price, and try not to think too hard about what went into it.



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Taza chocolate in Sommerbridge ... or is that Camberville has been at this for 20 years. They build relationships with the people who grow, harvest, and process their chocolate.


Equal Exchange

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does coffee and chocolate and you can get their stuff right outside north station.

Sourcing ethical chocolate is not hard

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The simplest way is to look for the Fair Trade or Equal Exchange logos on the packaging. Both organizations have excellent reputations for supporting and documenting open non-slavery sourcing for chocolate, coffee, and other crops.

The fact is, many stores in this region (including the 7-11 down the street) are going to have some ethically sourced chocolate, and that's been the case for years. You may have to pay a little more, but you'll generally get a much better tasting product, in addition to the ethical benefit.

(btw, folks here have already mentioned the great folks at Taza, and I want to point out that another local favorite - Burdick's - also uses only well-documented ethically sourced beans in all their chocolate.)

Goodnow Farms

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Another local chocolatier, Goodnow Farms, does Direct Trade rather than fair trade, an arrangement under which (according to them) they pay significantly more than fair trade minimums and develop direct relationships with both farmers and workers. Their chocolate is amazing.

Ultimately, it does come down to trust: either trust in a certification program, or trust in a producer, or trust in some middleman. I have a friend who travels to Chiapas to source cacao directly, really cool stuff, criollo beans that are grown in understory rather than plantation environment. I keep hoping to get him hooked up with someone like Goodnow, but it's not his main line of work.


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This is why I support Taza Chocolate. They are transparent and support fair trade practices. While a bit pricy, they have good sales and you can find some of their products in Market Basket! I'd rather pay a little extra to support a good cause.

Vote with your dollar.


Taza also just TASTES better.

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Taza also just TASTES better. I'd rather have a little wedge of Salted Almond Taza than a whole bag of flavorless hershey kisses

Would be nice if the federal

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Would be nice if the federal government went after corporations that profit off the backs of slaves. Keep hitting them with fines until it isn't profitable for them to do so.

The average consumer has no idea where their food comes from, but the idea that Nestle, Hershey, and Mars don't know where their chocolate comes from is laughable.

Shrimp, chocolate

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Shrimp is one of Americans' favorite seafoods, but I stopped buying it because so much of it is processed by slave labor, and I can't really tell where the shrimp comes from.

Some Thai fishermen moonlight as pirates, often attacking (for example) small boats overloaded with Vietnamese "boat people" (refugees from Vietnam, a communist state). They're reported to throw most of the terrified passengers overboard, keeping the girls, who are sold into sex slavery, and the healthy young men, who are then trapped on the pirate/fishing ships where they have to work as slaves processing the shrimp. (Modern fishing boats are basically floating factories; the catch gets cleaned, frozen, etc. right on board.)

I can't verify any of this; it's just what I've read in the past. But it sounds horrifyingly real.

Back to chocolate... I'm very fond of the Trader Joe's brand of very dark (85% cocoa, not much sugar) chocolate bars. Anybody know anything about their sourcing? As for Hershey's/Nestle's typical bars... to me, "milk chocolate" tastes like baby food anyway, almost no actual chocolate taste, so there's no temptation there.

TJ's Dark Chocolate Lover's Chocolate Bar

According to the package, the chocolate comes from the Tumarico region of Colombia. For $1.69 (it used to be $1.49 for a long time) it's the best tasting chocolate for its value - Lindt can't come even half as close.

I don't eat shrimp - never liked the taste of it.

South/Central America

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South/Central America is also the home of chocolate. If you want criollo as opposed to forestera, you want South/Central American beans.