Tomasella v. Nestlé United States, Inc.

• Decision Date: 16 June 2020
• Docket Number: No. 19-1131,No. 19-1130, No. 19-1132,19-1130
• Citation: 962 F.3d 60
• Parties: Danell TOMASELLA, on behalf of herself and all others similarly situated, Plaintiff, Appellant, v. NESTLÉ USA, INC., a Delaware corporation, Defendant, Appellee. Danell Tomasella, on behalf of herself and all others similarly situated, Plaintiff, Appellant, v. Mars, Inc., a Delaware corporation; and Mars Chocolate North America LLC, a Delaware company, Defendants, Appellees. Danell Tomasella, on behalf of herself and all others similarly situated, Plaintiff, Appellant, v. The Hershey Company, a Delaware corporation; Hershey Chocolate & Confectionery Corporation, a Delaware corporation, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

962 F.3d 60

Danell TOMASELLA, on behalf of herself and all others similarly situated, Plaintiff, Appellant,

v.NESTLÉ USA, INC., a Delaware corporation, Defendant, Appellee.

Danell Tomasella, on behalf of herself and all others similarly situated, Plaintiff, Appellant,

v.Mars, Inc., a Delaware corporation; and Mars Chocolate North America LLC, a Delaware company, Defendants, Appellees.

Danell Tomasella, on behalf of herself and all others similarly situated, Plaintiff, Appellant,

v.The Hershey Company, a Delaware corporation; Hershey Chocolate & Confectionery Corporation, a Delaware corporation, Defendants, Appellees.

No. 19-1130

No. 19-1131

No. 19-1132

United States Court of Appeals, First Circuit.

June 16, 2020

Elaine T. Byszewski, with whom Steve W. Berman, and Hagens Berman Sobol Shapiro LLP were on brief, for appellant.

Bryan A. Merryman, with whom Michael Kendall, Lauren M. Papenhausen, Karen Eisenstadt, and White & Case LLP were on brief, for appellee Nestlé USA, Inc.

David M. Horniak, with whom Alison M. Newman, Stephen D. Raber, and Williams & Connolly LLP were on brief, Washington, DC, for appellees Mars, Inc. and Mars Chocolate North America LLC.

Jonah M. Knobler, with whom Steven A. Zalesin, and Patterson Belknap Webb & Tyler LLP were on brief, New York, NY, for appellees The Hershey Company and Hershey Chocolate & Confectionery Corporation.

Before Torruella, Lynch, and Kayatta, Circuit Judges.

TORRUELLA, Circuit Judge.

Danell Tomasella ("Tomasella") appeals the district court's dismissal of her claims in three putative class action lawsuits against Nestlé USA, Inc. ("Nestlé"), Mars, Inc. ("Mars"), and The Hershey Company ("Hershey") (collectively "Defendants"). Tomasella alleged that Defendants' failure to disclose on the packaging of their chocolate products that the worst forms of child labor exist in their cocoa supply chains violates the Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A ("Chapter 93A"). She also alleged that Defendants had been unjustly enriched by this packaging omission.

The exploitation of children in the supply chain from which U.S. confectionary corporations continue to source the cocoa beans that they turn into chocolate is a humanitarian tragedy. This case thus serves as a haunting reminder that eradicating the evil of slavery in all its forms is a job far from finished. Before us, however, is the very narrow question of whether Defendants' failure to include on the packing of their chocolate products information regarding upstream labor abuses in their cocoa bean supply chains constitutes an unfair or deceptive business practice within the meaning of Chapter 93A. Because we agree with the district court that Tomasella has not plausibly stated a claim for relief under Chapter 93A based on the alleged packaging omissions, and that Tomasella's unjust enrichment claim is foreclosed by the availability of a remedy at law, we affirm the dismissal of her complaints against Defendants.

I. Background

A. Facts of the Case

Because this is an appeal from the granting of a motion to dismiss, "we rehearse the facts as they appear in the plaintiff['s] complaints (including documents incorporated by reference therein)."¹ Hochendoner v. Genzyme Corp., 823 F.3d 724, 728 (1st Cir. 2016).

The West African nation of Côte d'Ivoire (Ivory Coast) is the world's largest producer of cocoa beans, the essential ingredient in chocolate. The United States imports 47% of its supply of cocoa beans from Côte d'Ivoire. According to the U.S. Department of Labor's ("DOL") Bureau of International Labor Affairs, the Ivorian cocoa industry "employ[s]" over 1.2 million child laborers, 95% of whom are engaged in hazardous cocoa production work, such as burning and clearing fields, using machetes and sharp tools, spraying pesticides, and carrying heavy loads. As many as 4,000 of these children "are working under conditions of forced labor on Ivorian cocoa farms," having been kidnapped or trafficked into debt bondage marked by harsh working conditions. In addition, child laborers on cocoa farms are often forced to work long hours even when sick, denied food, and punished with physical abuse. A DOL-funded 2015 report prepared by the Payson Center for International Development at Tulane University found that over half of child laborers on Ivorian cocoa farms have suffered work-related injuries. These conditions, according to Tomasella, amount to "the Worst Forms of Child Labor" and are "prohibit[ed]" under international law.²

Defendants are three of the largest and most profitable confectionary corporations in the United States. Their chocolate products are made with cocoa beans and paste that they source (either directly or through intermediaries) predominantly from West African countries such as Côte d'Ivoire and Ghana.³ Defendants' Corporate Business Principles and Supplier Codes of Conduct prohibit child and slave labor. Additionally, they each have a stated policy that condemns the use of the worst forms of child labor. At the same time, Defendants publicly acknowledge the existence of the worst forms of child labor in their West African cocoa supply chains. For example, Nestlé acknowledges that children are engaged in hazardous work and forced labor on farms in Côte d'Ivoire in areas where the company sources cocoa. Mars recognizes that child labor and trafficking exist in cocoa bean supply chains originating in West Africa, and that it has advocated for the government of Côte d'Ivoire to address the problem. Hershey concedes that there are potential labor rights abuses in its cocoa bean supply chain and expresses its commitment to ending forced labor.

In 2001, Defendants (all members of the Chocolate Manufacturers Association) signed the Protocol for the Growing and Processing of Cocoa Beans and Their Derivative Products in a Manner that Complies with ILO Convention 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, Sept. 19, 2001 [hereinafter Harkin-Engel Protocol],⁴ whereby they committed to being able to publicly certify by July 2005 "that [their] cocoa beans and their derivative products have been grown and/or processed without any of the worst forms of child labor." Since 2005, Defendants have issued several joint statements affirming their commitment to eliminating forced child labor in the cocoa supply chain, although they have yet to fully implement the comprehensive cocoa certification process imagined by the Harkin–Engel Protocol.

As part of their commitment, Defendants have launched corporate remedial initiatives. Nestlé launched the Nestlé Cocoa Plan in 2009 to "eliminate the use of child labour" and "stamp out forced labour practices" in the Ivorian cocoa industry. Mars has the Sustainable Cocoa Initiative, which aims to improve the livelihoods of farmers. Hershey designed the Shared Goodness approach, "to help guide [its] support of the United Nations Sustainable Development Goals" towards the ultimate goal of creating a "Better Life and a Bright Future for [its] stakeholders." Tomasella alleges that the total number of children involved in hazardous work in cocoa production has nevertheless increased between 2008 and 2014.

Defendants contend that they have consistently and publicly acknowledged the child labor problem in their cocoa supply chains, including on their websites, where they regularly report on their remedial efforts; however, they do not disclose the existence of "child and/or slave labor in the [cocoa] supply chain" on the packaging of the chocolate products identified in Tomasella's complaints at the point of sale. Nestlé does label at least one of its chocolate products, Nestlé Crunch, with the Nestlé Cocoa Plan logo and a statement (with a website link) that reads, "[t]he Nestlé Cocoa Plan works with UTZ Certified to help improve the lives of cocoa farmers and the quality of their products."⁵ Both Mars and Hershey label certain products as certified by the Rainforest Alliance (another certification that does not permit child labor), but Tomasella expressly exempts those products from challenge in her complaints.

B. Procedural History

On February 12, 2018, Tomasella (a Massachusetts resident) filed a two-count class action lawsuit against Nestlé in federal court predicated on diversity jurisdiction. Then, on February 26, 2018, she filed identical class actions against Mars and Hershey. The putative class in all three lawsuits included "[a]ll consumers who purchased [Defendants'] Chocolate Products in Massachusetts during the four years prior to the filing of the complaint[s]."

First, Tomasella alleged that Defendants violated Chapter 93A because their failure to disclose the prevalence of the worst forms of child labor in their cocoa supply chains on their product packaging is a "material omission[ ]" that constitutes "an unfair or deceptive act[ ] or practice[ ] in the conduct of any trade or commerce" (Count One). Mass. Gen. Laws ch. 93A, § 2(a).⁶ According to Tomasella, these omissions were deceptive because they "enticed reasonable consumers to purchase the Chocolate Products when they would not have had they known the truth." Likewise, she alleged that the omissions were unfair to consumers who became "unwitting support[ers] of child and slave labor" through their purchases, and that Defendants' "undisclosed participation" in a cocoa supply chain plagued by the worst forms of child labor was "immoral, unethical, oppressive, unscrupulous, unconscionable, and offends established and internationally recognized public policies against the use of child and slave labor," such as ILO Convention No. 182 and the United Nations' 1948 Universal Declaration on Human Rights ("UDHR"). Tomasella also alleged that Defendants' packaging omissions "impair[ ] competition in the market for chocolate products, and prevent[ ] [her] and Class Members from making fully informed decisions about the kind of chocolate products to purchase and...