Human Rights Group Sues CBP Over 'Inaction' on Forced Child Labor in Côte d’Ivoire Cocoa Industry

DHS Secretary Alejandro Mayorkas and Acting CBP Commissioner Troy Miller must respond to allegations of forced labor used in imported cocoa from Côte d’Ivoire by seven major chocolate companies, the International Rights Advocates (IRAdvocates) said in its Aug. 15 complaint at the Court of International Trade. The suit aims to force DHS and CBP to issue a decision in response to a 2020 petition filed by IRAdvocates along with Corporate Accountability Lab, and the University of California Irvine Law School's Human Rights Clinic (UCI) (International Rights Advocates v. Alejandro Mayorkas and Troy Miller, CIT # 23-00165).

Mayorkas, Miller and CBP as a whole have violated the Administrative Procedure Act for failing to take action on the now 3-year-old petition "as is required by law," the group said. The agencies and their leadership "do not have the power to simply ignore a federal law," IRA said. In three years of inaction, "CBP has allowed hundreds of millions of dollars’ worth of tainted cocoa produced by forced child labor to illegally enter the United States."

IRAdvocates says that forced child labor in Côte d’Ivoire is "well documented" by various international reports as well as its own investigations. There were approximately 800,000 child laborers working in cocoa production in Côte d’Ivoire, according to a 2020 report, though that number has likely increased since, IRAdvocates said. Roughly 45% of the world's cocoa is produced in Côte d’Ivoire, of which 46% goes to the U.S., not including significant amounts re-exported from Panama, Belgium, and Spain after processing.

The Tarrif Act allows anyone outside of CBP who has reason to believe that merchandise produced with forced labor is being imported into the U.S. to “communicate his belief to any port director or the Commissioner of Customs,” the group said. IRAdvocates said that it and its partners "acted in good faith" under that provision and when they filed their petition. Both IRAdvocates and CAL went on to discuss the petition with CBP staff and twice supplemented the filing. That petition asked that cocoa harvested by the "worst offenders," Nestlé, Cargill, Barry Callebaut, Mars, Olam, Hershey, and Blommer Chocolate, be banned from importation because the companies have violated the Harkin-Engel Protocol, "while engaging in deceptive practices to mislead consumers and regulators into believing they no longer profit from forced child labor." The protocol is a voluntary initiative from 2001 signed by major cocoa companies to phase out the use of child labor.

In December 2022, CBP's Miller wrote to IRAdvocates. Rather than address the merits or explain the delay in addressing the petition, Miller "made the incredible assertion that, after nearly three years of unanswered pleas, the information provided by petitioners [was now] dated," IRAdvocates said. Nearly three years after the petition, that letter was the first time anyone at CBP raised a timeliness issue, the group said. According to the complaint, Miller's letter included a promise that CBP would issue a withhold release order (WRO) if evidence reasonably indicated that merchandise produced by forced labor was being imported. IRAdvocates said that promise has "proven to be unequivocally false" and that CBP has "continuously shirked its duties." IRAdvocates said that it, CAL and UCI also have suffered financial harm because of CBP's inaction, which has required "ongoing and expensive investigations to provide updated information."

The organization is asking the court to force CBP to address the petition and to issue some determination. "Even we don't think the court can say that you must decide in a certain way," but it's a clear violation to just sit on this for years, Terry Collingsworth, executive director of IRAdvocates, said in an interview. "CBP has to issue some result." IRAdvocates previously sued CBP on the same issue in 2005 but lost the case because the "consumptive demand exception" still existed, Collingsworth said. That exception allowed importation of certain forced labor-produced goods if the goods were not produced “in such quantities ... to meet the consumptive demands of the United States.”

The case covers unusual issues for CIT. "I don't know that the court is used to dealing with Administrative Procedure Act violations," Collingsworth said, but he was hopeful that the venue would bring a new audience to the issues. CBP said that it would not comment on pending litigation.