Packages of large Hershey Co. Kisses candies are displayed for sale inside of the company’s Chocolate World visitor center in Hershey, Pennsylvania, on Nov. 28, 2017. (Bloomberg photo by Luke Sharrett.)

Packages of large Hershey Co. Kisses candies are displayed for sale inside of the company’s Chocolate World visitor center in Hershey, Pennsylvania, on Nov. 28, 2017. (Bloomberg photo by Luke Sharrett.)

B.C. men one step closer to class-action against Hershey for alleged child slavery

Case hinges on “misrepresentation” by Hershey in B.C. that they oppose child labour

The B.C. Supreme Court has given the go ahead to a class-action lawsuit against Hershey Chocolate over allegations it profits from child labour and slavery, despite publicly stating they oppose it.

The lawsuit is being led by Scott Leaf against The Hershey Company and their Canadian subsidiary Hershey Canada.

According to affidavits and court documents obtained by Black Press Media, Leaf and another man, named Michael Pucci, purchased Hershey products at B.C. stores and were led to believe the products were free of child slavery, based on marketing and packaging.

“I also recall seeing the Defendants’ advertising online while in the province, and on television broadcasted to my home in the province, which may have been through one of the following networks that I receive: NBC, ABC, CBS, FOX, TBS and their affiliates,” Pucci wrote in his affidavit.

The Hershey Company, headquartered in Delaware, refuted the argument. The company contended that it did not conduct any business in B.C. and is not responsible for advertising or distributing Hershey products anywhere in Canada. The company argued that Hershey Canada is the only company responsible for the sale, marketing, merchandising, promotion and advertising of Hershey chocolate confectionary products within B.C.

But Justice Jasmin Ahmad disagreed, writing that the Hershey Company failed to prove that no products manufactured by the Hershey Company are available for sale in Canada. Ahmad also wrote that the possibility that advertising created by The Hershey Company is distributed in B.C. remains open.

She determined that Leaf had shown a “good arguable case” that a substantial connection exists to B.C. and that the Supreme Court has the territorial competence to determine the claim against The Hershey Company.

What happens next?

Adam Tanel, an associate with Koskie Minsky LLP — which is representing Leaf in the case, said there’s still a long road ahead before the case is heard in a B.C. courtroom.

“It’s not certified as a class action yet, that’s our next step,” Tanel said.

Certification is a procedural step required by the B.C. Class Proceedings Act, that determines whether it makes sense for the case to proceed as a class action rather than as an individual action or some other form of remedy.

Tanel expects it will be years before the case is heard. Certification decisions are regularly appealed. After certification comes documentary production, where Tanel and his team will have the right to find out what the defendants knew and when they knew it.

When asked why the case was being heard in B.C. rather than any other jurisdiction, Tanel said that B.C. is a “strong jurisdiction” for class actions.

“We believe in the merits of the action,” Tanel said. “There are a lot of procedural fights to have. But we’re very much looking forward to having a fight on the merits of this action.”

‘Zero tolerance’ for child slavery

In a statement to Black Press Media, Hershey said it “does not tolerate illegal and abusive forms of child labour” in its cocoa supply chain.

“We recognize this is an enormous challenge well beyond the ability of a single organization or entity to solve. These issues are deeply rooted in complex, systemic circumstances on privately owned family farms in sovereign countries that are not easily reversed.”

Hershey has developed the Cocoa For Good program, where the company said it will invest $500 million by 2030 into cocoa-growing communities as a “holistic effort” to address the root causes of child labour.

A case was brought against Hershey, Nestle and Cargill in the United States by eight children who said they were forced into slavery to produce cocoa for the companies on Africa’s Ivory Coast. The claims were dismissed for failing to provide a traceable connection between the defendants and the plantations.

None of the claims against Hershey have been proven in court.


@SchislerCole
cole.schisler@bpdigital.ca

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