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).