‘Hypocritical’: Ben & Jerry’s sued over child labor, after attempted Israel boycott

Class action lawsuit alleges ice cream maker misled consumers about ethical commitments after report reveals underage workers in supply chain; company’s anti-Israel board stays mum

Luke Tress is a JTA reporter and a former editor and reporter in New York for The Times of Israel.

A Ben & Jerry's shop in Burlington, Vermont, July 20, 2021. (AP Photo/Charles Krupa, File)
A Ben & Jerry's shop in Burlington, Vermont, July 20, 2021. (AP Photo/Charles Krupa, File)

NEW YORK — Ben & Jerry’s has been hit with a class action lawsuit and charges of hypocrisy for the use of child labor in its supply chain, despite the ice cream maker’s declared commitment to social justice causes, an image it holds up as a key part of its branding.

The company’s involvement with child labor came to light shortly after it settled a high-profile legal battle with its parent firm over an attempted boycott against Israel, which Israel supporters viewed as prejudiced. The Ben & Jerry’s board responsible for the boycott has stayed mum about the labor issue, while its leader has continued to take shots at Israel.

The Vermont-based company claimed in recent filings that it did not use child labor in its supply chain and has avoided divulging when it found out about the matter.

The labor issue surfaced publicly in a New York Times investigation late last month. The report revealed that American corporations and their suppliers use underage migrant laborers for dangerous and grueling factory jobs, including in dairy facilities that supply Ben & Jerry’s.

Many of the children fled destitution in Central America, arrived in the US as unaccompanied minors, and were then exploited for labor. They work to pay off debts to smugglers, send cash to their families back home, and pay for living costs. The jobs keep many of them out of school. The US Department of Labor said it would take action to rein in illegal child migrant labor in response to the report.

The injury rate for dairy facilities is twice the national average compared to all industries, said the report, which included testimony from a boy who crushed his hand in an industrial milking machine in Vermont.

The state’s labor laws allow anyone over 16 to do any work in agriculture, and bar those under that age from doing any hazardous jobs. There is no evidence that Ben & Jerry’s, or its suppliers, violated labor laws.

Illustrative: A worker watches the milking operation at a farm in Fairfield, Vermont, March 5, 2009. (AP Photo/ Toby Talbot, File)

A Ben & Jerry’s representative appeared to acknowledge the issue to the New York Times, saying the company cooperated with labor groups to monitor working conditions at its suppliers and claiming that if migrant children needed to work full time, it was better for them to work at a well-monitored workplace.

In response to the report, a plaintiff filed a federal class action lawsuit against Ben & Jerry’s in a New York court, claiming the company had misrepresented its ethical commitments to consumers.

The case argues that Ben & Jerry’s charges a premium for its products, partly based on its image as a socially conscious company, and that consumers would not have bought from the company, or paid as much, if they had been aware of its suppliers’ use of child labor. The plaintiff, Dovid Tyrnauer, sought damages and other commitments from Ben & Jerry’s for breach of trust.

During the legal proceedings involving the company’s attempted boycott, Ben & Jerry’s repeatedly argued, including in the same New York court where the class action lawsuit was filed, that its conscientious image was a core part of its business strategy and financial success.

“While Ben & Jerry’s purports to use ethical supply chains and professes concern about farmworker welfare, the reality could not be further from the truth. Migrant child labor is used in Ben & Jerry’s supply chains,” the lawsuit claimed. “Ben & Jerry’s wishes to have its ice cream and eat it too. It wishes to sell premium priced products with pompous virtue-signaling representations regarding its supposedly ethical sourcing, all the while migrant child labor is used in its supply chains. Put simply, this is a case about greed run amok.”

Ben & Jerry’s ice cream on sale at a shop in Jerusalem, on July 19, 2021. (Yonatan Sindel/ Flash90)

“The premiums that consumers pay for allegedly ethically-sourced products, in this instance, are not justified and constitute a breach of consumer trust through the misrepresentations,” the lawsuit said.

The lawyers for the plaintiff did not respond to a request for comment, and Ben & Jerry’s did not yet have legal representation listed in the case.

After the New York Times report, Ben & Jerry’s issued a statement opposing child labor and highlighting the company’s ethical commitments and ties with workers’ rights groups. The statement did not deny the use of child labor by the company’s suppliers, or that Ben & Jerry’s was aware of the issue.

“We are deeply concerned by the claims made in this story, and do not tolerate any suppliers who are not adhering to the law. Let us be extremely clear: Ben & Jerry’s stands in strong opposition to child labor,” the statement said.

Contacted for comment about the class action lawsuit, Ben & Jerry’s referred The Times of Israel to the previous statement, and did not answer specific questions, including about when the company became aware of child workers in its supply chain.

Immigrant farm workers sign an agreement with Ben & Jerry’s to promote workers rights in Burlington, Vermont, October 3, 2017. (AP Photo/Wilson Ring)

The company’s prior knowledge of the issue is significant because it certified in filings submitted in January that its suppliers did not use child labor. The disclosure was for the company’s registration as a B Corporation, a private certification that verifies a company’s “high standards of social and environmental performance.” Ben & Jerry’s also said in 2017 filings that its employee handbook barred the use of child labor.

The Ben & Jerry’s independent board tasked with protecting the company’s “social mission,” which decided to boycott Israeli settlements, has not commented on the child labor issue. A company spokesperson said the statement responding to the New York Times investigation was not attributable to the board.

The board’s chair, Anuradha Mittal, has not publicly commented, but has repeatedly shared anti-Israel content on Twitter since the child labor issue came to light. Mittal has a pro-intifada poster on her office wall.

Illustrative: Cows on a farm in Sudbury, Vermont, August 8, 2022. (AP Photo/Steven Senne)

Alyza Lewin, a lawyer for Ben & Jerry’s Israel in its lawsuit against the boycott, said the child labor allegations had exposed the company’s double-standard when it comes to Israel.

“This information that’s now come out about the immigrant child workers does kind of confirm the hypocrisy of the whole episode with Israel,” Lewin said. “What you had was a board that caved to BDS pressure and it was never about trying to help Palestinians.”

“If you’re going to go out there and claim that you’re all about social justice, then where is your voice now when it comes to these poor children?” Lewin said.

The head of Ben & Jerry’s Israel, Avi Zinger, who waged a successful legal battle against the boycott, has said the move hurt Palestinians, including employees, consumers, and his West Bank business partner.

The Ben & Jerry’s board announced its decision to boycott “occupied Palestinian territory” in July 2021, following Israel’s war that year with Gaza-based terrorists and after a heavy social media campaign against the company. Israeli laws bar discrimination against citizens based on where they live, meaning a boycott of settlements would amount to a ban on selling anywhere in Israel.

Pro-Israel demonstrators protest against Ben and Jerry’s over its boycott of the West Bank, and against antisemitism, in New York City, on August 12, 2021. (Luke Tress/Flash90)

The decision set off a convoluted legal battle and heavy repercussions for Unilever, the Ben & Jerry’s parent company, as US states enacted anti-BDS divestment laws, pulling hundreds of millions of dollars in investments from the UK conglomerate.

The ice cream maker’s decision to boycott “occupied territory” sparked uproar in Israel and among some US Jewish groups. Critics of the boycott argued it was antisemitic because the company has never attempted to boycott any other region of the world.

Supporters of the boycott Israel movement say that in urging businesses, artists, and universities to sever ties with Israel, they are using nonviolent means to oppose unjust policies toward Palestinians. Israel says the movement masks its motives to delegitimize and destroy the Jewish state.

Zinger and Ben & Jerry’s Israel refused to comply with the settlement boycott, arguing it was illegal under Israeli and US law. Their license to sell the ice cream was only set to expire at the end of 2022, meaning the boycott never went into effect.

Workers at the Ben & Jerry’s Israel factory near Kiryat Malakhi, July 21, 2021. (Flash90/File)

Ben & Jerry’s Israel sued Unilever over the dispute in the US, claiming Unilever unlawfully terminated their business contract. Months later, Unilever settled with Ben & Jerry’s Israel, granting the Israeli branch independence to sell its products indefinitely in Israel and the West Bank, using Hebrew and Arabic branding. Under the agreement, Ben & Jerry’s has no authority over the Israeli franchise.

Unilever has said the board had announced the settlement boycott without consulting with the parent company.

Shortly after that agreement was announced, Ben & Jerry’s sought to block the deal by suing Conopco, the main US branch of Unilever, arguing that Unilever had breached its acquisition deal with Ben & Jerry’s. The unusual 2000 merger agreement gave the ice cream maker’s board the authority to protect the company’s “social mission.” The lawsuit marked an unprecedented legal dispute between a major company and its parent corporation.

Unilever said it had resolved its dispute with Ben & Jerry’s in December without specifying the terms of the agreement. The case had appeared to be going against Ben & Jerry’s before the deal was announced.

Zinger said he was “pleased” the litigation had been resolved, and Ben & Jerry’s and its board did not comment.

The Jewish founders of Ben & Jerry’s, who no longer run the company, have said Unilever “usurped their authority” by spinning off the Israel branch.

The case has illustrated the pitfalls of progressive corporate activism, the risks for companies attempting to boycott Israel and the growing role of corporate investing in the Israeli-Palestinian dispute in the US.

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