Hershey, Nestle Seek Dismissal of Child Labor Class Action Lawsuits

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Nestle USA Inc. and The Hershey Co. have asked a Massachusetts federal court to dismiss a couple of class action lawsuits alleging the companies failed to disclose information about using forced child labor in their cocoa supply chain.

“In 2015, [plaintiff Danell Tomasella’s] lead counsel filed seven related class-action complaints in California federal court,” Hershey says in its motion supporting dismissal of the child labor class action lawsuit.

“Three complaints alleged that chocolate manufacturers, including Hershey, violated California’s consumer-protection laws by failing to announce on product labels that some plantations in Cote d’Ivoire, Africa employ forced and/or child labor, and that the products might contain cocoa sourced from these suppliers.”

“The other four complaints alleged that manufacturers of products containing seafood from Thailand failed to make analogous label disclosures.”

Both Nestle and Hershey argued that seven district courts have denied the plaintiffs’ counsel’s legal theories and dismissed the cases with prejudice. The defendants argue that state consumer protection laws do not impose a duty on manufacturers to disclose on product labels any and all information that may affect a purchasing decision.

On the contrary, other Massachusetts state courts and the U.S. 1st Circuit Court of Appeals have held that an alleged “omission” is not actionable unless it is misleading. The defendants claim that the relevant law was intended to protect consumers from unfair or deceptive conduct, not to provide information that may lead consumers not to purchase products for moral or ethical reasons.

Tomasella filed the child labor class action lawsuits in February, claiming the companies should have disclosed to consumers that their products contain cocoa produced using child and slave labor in West Africa.

According to the child labor class action lawsuits, the defendants were aware that most of their cocoa suppliers rely on child labor and forced labor.

Former slaves have also reportedly filed lawsuits against Nestle and other companies over allegations they contributed to slavery. They allege Nestle and Cargill Inc. were aware of the problems associated with child slavery but continue to source their cocoa from slave owners in order to benefit from lower cocoa prices.

Tomasella alleges she would not have purchased the chocolate products, or would have paid less for them, if she had known that Nestle and Hershey sourced their cocoa products from the Ivory Coast and Ghana even though the companies should have known cocoa beans from the region are regularly produced using child labor and slave labor.

The defendants have noted that information about their supply chains is included on their websites, even if it is not included on the product labels. Further, they claim information about the problem of child labor in the cocoa industry has been publicized through media reports, political debates and documentaries, leading to public awareness about the issue.

Mars Inc. also faces a class action lawsuit filed by Tomasella and her attorneys over allegations of child and slave labor.

Tomasella is represented by Steve W. Berman, Hannah R. Brennan and Elaine Byszewski of Hagens Berman Sobol Shapiro LLP.

The Nestle, Hershey Child Labor Class Action Lawsuits are Tomasella v. Nestle USA Inc., Case No. 1:18-cv-10269, and Tomasella v. The Hershey Co., Case No. 1:18-cv-10360, in the U.S. District Court for the District of Massachusetts.