BAT and Imperial found with a case to answer on Tobacco child labour

Two of the world’s biggest tobacco companies, British American Tobacco (BAT) and Imperial Brands, are reported to have failed to persuade the high court in London on Wednesday to strike out a case against them alleging the exploitation of Malawian farmers that involves child labor.

The Guardian newspaper in England reported the companies deny child labour allegations and applied to the court to strike out the case arguing that the affected Malawian families could not prove that the tobacco they grew had ended up in their cigarettes.

However, the farmers’ lawyers have repeatedly asked the companies for proof that they had not bought tobacco from their clients, but no documents had been disclosed to them.

Malawi-child-tobacco-pickers

High Court, Justice Martin Spencer said the companies’ application to strike out the case had been “misconceived” since the farmers’ lawyers were not required to offer proof at the beginning of a legal action, only when it came to full trial.

The case follows a story published in June 2018 that revealed the plight of children forced to work in the fields, who are allegedly trafficked from Southern Region of Malawi to tobacco-growing regions.

“Once there, it is said, they have to build their own homes from branches and work seven days a week in the fields,” writes The Guardian.

“They receive a small portion of maize each day and get by largely by borrowing money until harvest time at the end of the season, when they are paid for the crop.

“Loans and the costs of farming supplies are deducted and some end up in debt, the lawyers say. The families have no money to hire labour, so the entire family, including children as young as three, work the fields.”

The farmers’ lawyers argue that conditions of work breach the definition of forced labour, unlawful compulsory labour and exploitation under Malawian law and also breach the UK Modern Slavery Act, article 14 of the European convention on human rights, and the International Labour Organization definition of forced labour.

The lawyers say the companies have been unjustly enriched but claim they can trace where their tobacco comes from “down to farm level” and they monitor conditions on those farms.

However, in his ruling, the judge referred to correspondence in which BAT admitted that “traceability down to the farm level” did not actually mean it could trace tobacco to individual farmers working their separate fields.

Martyn Day, a senior partner at Leigh Day says: “BAT and Imperial make millions of pounds in profit each year and our clients believe much of this profit is down to the awful conditions that are present in their supply chains, which use impoverished families to farm the tobacco and pay them a pittance to do so.

“It is not surprising that BAT and Imperial tried to get these very serious claims against them thrown out by the court. We are pleased that the court agreed with out clients that they have an arguable case which should be heard by the court.”

Oliver Holland, another partner at Leigh Day said: “Once again we see the information the multinational companies provide in their corporate materials in relation to human rights and environmental issues is misleading and untrue.

“This is the information that shareholders look at when deciding to invest in these companies. It takes cases like these to expose these untruths.

“We are now keen for these claims to proceed on to trial so that our clients can get some justice and put an end to the slave-like conditions in which our clients are forced to grow tobacco.”

A spokesperson for Imperial is quoted by Guardian that they could not comment further because the litigation was ongoing, “other than to reiterate that we will continue to defend the claim”.

BAT said it had “a longstanding commitment to respect the human rights of our employees, the people we work with and the communities in which we operate. We will continue to vigorously defend the claims and we are unable to provide further comment while this case continues.”

Malawi was the only country globally that was red flagged for worst form of child and forced labour, but in September last year, it was reported that it has currently made moderate advancement in efforts to eliminate this practice.

During a virtual conference on Global Tobacco & Nicotine Forum (GTNF) 2020 in September last year, Fran Malila, corporate affairs manager for Alliance One International (AOI) Malawi, had said the US Customs and Border Protection (CBP) issued a withhold release order (WRO) in November, 2019, on tobacco and products containing tobacco from Malawi and upon receiving the WRO, importers were supposed to engage themselves and demonstrate that no child or forced labour was used in the production of tobacco goods.

The virtual was under the theme ‘phasing out cigarettes and other high-risk tobacco products and transitioning smokers to reduced-risk alternatives’ and Malila reported that Alliance One actively engaged, both internally and externally, to respond to the withhold release order over a 7-month period providing information relative to various aspects of our operations, including traceability and our Agricultural Labor Practices (ALP) program.

“We were notified that the withhold release order was modified to exclude Alliance One International on June 3, 2020,” she had said.

“As of today, CBP has modified the withhold release order against tobacco from Malawi to exclude two companies — Alliance One International and Universal Leaf).

“The withhold release order modification means that tobacco imported into the USA from Malawi by the two companies are admissible at all US ports of entry.”

Malila added that withhold release order is still valid for other importers of Malawi tobacco and that it is more important than ever that farmers strictly comply with the ALP program through a multi-stakeholder approach.

“Malawi has various pieces of legislation that prohibit the use of child labour, forced labour, forced child labour and has an enabling legislative framework to combat child labour and child forced labour and promote a decent work environment.

“The Tobacco Industry Act (2019) became effective on February 22, 2019, which has provisions to ensure child labour elimination efforts and other labour-related rights.

“Ongoing training and extension services help farmers continuously improve their crop and labour practices and as of the 2018-2019 crop year, some tobacco companies directed that no person under the age of 18 years should be involved in any tobacco-related activities.”

This, she said, affords greater protection than the Malawi Prohibition of Hazardous Work Act, which allows 16-18 year-olds to work in tobacco, provided they are trained and supervised by an adult.

Through a multi-pronged approach, Malila had said tobacco companies are committed to the elimination of labour abuses and the improvement of working conditions in tobacco crop production through farmer training, farm monitoring, stakeholder engagement and sustainability programs.

Malawi tobacco industry, which is among the top 10 producers of the leaf in the world and is also a top producer of burley tobacco — alongside Brazil and the United States — employs almost 12% of the country’s population.

Tobacco related transactions contribute 25% to Malawi’s tax revenue base and contributes 15% of Malawi’s gross domestic product (GDP) and 60% of foreign exchange earnings, as explained by Malila had said.

“Four out of five people in Malawi rely on agriculture for their income with the majority of those individuals being smallholder growers farming an average of 0.5ha of land.

“Malawi tobacco must be grown in compliance with Sustainable Tobacco Program (STP) and Agricultural Labor Practices (ALP) to must meet the requirements and regulations put forth by governments and non-governmental organizations around the world.”

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