LESS THAN TRANSPARENT: HOW CALIFORNIA'S EFFORT TO SHINE LIGHT ON MODERN SLAVERY MAY ULTIMATELY KEEP CONSUMERS IN THE DARK.

• Author: Gutierrez, Julie A.

TABLE OF CONTENTS INTRODUCTION I. The Problem and the Proposed Solution A. Slavery in the Modern Age 1. Defining Human Trafficking and Slavery 2. Supply and Deman 3. The Need for Transparency and Disclosure B. The Transparency in Supply Chains 1. How the Law Came to Pass 2. Inside the TSCA: Policy and Provisions 3. Predicted Pitfalls II. Judging the Efficacy of the TSCA A. Efforts-Based Disclosures Inadequately Inform Consumer B. "Safe Harbor" Doctrine May Endanger More Effective Measures 1. TSCA Cases Involving the Safe Harbor Doctrine 2. California Corrects the Courts: No Safe Harbor Under TSCA III. Suggesteed Solutions CONCLUSION INTRODUCTION

"If we purchase the commodity, we participate in the crime. The slave dealer, the slave holder, and the slave driver are virtually agents of the consumer, and may he considered as employed and hired by him to procure the commodity." --William Fox, 1791 Americans generally think of slavery as a problem of the past. Most would be shocked to discover that they currently support the practice financially through the products they purchase every day. Slavery, human trafficking, and forced labor exist today in the supply chains of many major brands, including Hershey's, Purina, and Forever 21. As of 2017, an estimated 40.3 million people are trapped in modern slavery (2)--more than three times the number involved in the Trans-Atlantic Slave Trade. (3) The United States Department of Labor identifies one hundred thirty-nine goods from seventy-five countries thought to be produced by some form of forced labor or child labor. (4) Despite these alarming numbers, the average consumer remains blind to the atrocities behind her new favorite blouse, the food she feeds her cat, or the chocolate bar she grabs at a grocery checkout.

After discovering that billions of U.S. dollars flow into this inhumane system through consumer spending, the California legislature moved to remedy the problem with the California Transparency in Supply Chains Act of 2010 (TSCA). (5) The Act requires certain highly profitable companies doing business in the state to post disclosures on their websites regarding their efforts to eradicate human trafficking and slavery from their supply chains. (6) Despite its noble aims and innovative approach, the TSCA has serious shortcomings that quickly surfaced during its first several years in effect. Its lax requirements, lack of enforceability, and misapplication of the word "transparency" do little to alert consumers to the inhumane practices they risk funding when they buy certain products. At worst, the TSCA may even allow long-time offenders to attract more customers via unchecked claims of their own benevolence. As is often the case with such innovative legislation, the TSCA will require legislative amendment and jurisprudential refinement if it is ever to achieve its purported purpose. To be sure, the TSCA is only a state law, but its far-reaching influence has made it an issue of greater importance: several major countries, including the United States, already have moved to implement this new model nationwide. (7)

The purpose of this comment is to analyze the Transparency in Supply Chains Act in order to predict its potential role in the fight against the use of human trafficking and slavery in commercial supply chains. It will examine problems within the letter and the spirit of the law as they relate to its initial effects as well as prescribe measures that should be taken to align the law with its purported aims. Part I will define and describe the problem of human trafficking and slavery in global supply chains, explain how transparency and disclosure play a significant role in the fight against such abuses, and discuss the provisions of the TSCA. Part II will address problems that threaten the effect of the TSCA, both externally and within the design of the law itself, and will then go on to discuss smaller issues within the law's provisions that stand in the way of its visibility and enforceability. Part II will also look at legislation inspired by the TSCA, specifically the ways in which it has improved upon the California model. Then, Part III will suggest solutions for the problems previously addressed. Finally, the conclusion will conclude the comment with a statement on the crucial need for accuracy and veracity in TSCA disclosures to consumers and businesses, whose awareness is a vital component of this effort to put an end to slave labor in modern supply chains.

1. THE PROBLEM AND THE PROPOSED SOLUTION

   To assess the TSCA effectively, it is important to define the issues it was created to address: human trafficking and slavery. Globally illegal but shockingly prevalent, human trafficking and slavery hide at the bottom of overwhelmed supply chains. The use of forced labor in the production of popular U.S. products, from M&M's (8) to Crest toothpaste, (9) has come to light over the past two decades. The exposure of this human rights issue revealed the need to establish standards of responsibility for manufacturers and retailers to operate ethically in a globalized economy. Likewise, consumers have a right--some might say a duty--to know whether their spending habits contribute to the enslavement of people in less developed nations. With this in mind, the California legislature drafted the TSCA: a disclosure-based policy that encourages businesses to look closer at their own supply chains in order to appeal to socially conscious consumers.

   1. Slavery in the Modern Age

      1. Defining Human Trafficking and Slavery

         Human trafficking and slavery are intertwining concepts. With the institutionalized slave trade rightfully condemned to the past, human trafficking has become the means of obtaining slave labor in the modern world. The term "human trafficking" encompasses a variety of underhanded tactics, all of which result in the capture of human beings for exploitation. (10) Usually, it involves the illegal transportation of people from one geographic location to another, where isolation and confusion facilitate the exploitation. (11) Traffickers strand their victims in foreign environments, where they lack legal status, cannot speak the language, and do not know their way around. (12) Because traffickers keep their victims in hiding and afraid of law enforcement, human trafficking--particularly labor trafficking--is largely unseen and underreported. (13)

         Traffickers often ensnare foreign workers through fraudulent job offers and "debt bondage." (14) Debt bondage occurs when traffickers target the desperate poor in struggling economies with promises of lucrative but faraway jobs and then "loan" them the money to initiate their own travel abroad. (15) Once there, the worker will begin to "work off the debt but soon discovers he cannot leave. (16) This type of labor abuse runs rampant in the Thai fishing industry, where shorthanded captains will even sometimes "just snatch people," drugging or kidnapping migrants and forcing them onto boats. (17)

         Interviews with escaped victims of human trafficking have revealed the deplorable conditions and environment of terror in which trafficked captives labor. For example, aboard the long-haul fishing ships in Thailand, where heaps of tiny forage fish are caught for use in popular cat food brands, such as Iams, Meow Mix, and Fancy Feast, (18) a typical work day is eighteen to twenty hours in temperatures up to 100 degrees Fahrenheit. (19) Workers have no source of hydration other than seawater or the ice chips used to chill dead fish. (20) Workers are beaten for small transgressions, cast overboard when sick, and beheaded for defiance. (21) Ship captains and supervisors threaten death to keep order--sometimes reinforcing the point by murdering a worker in front of the remaining crew. (22) The enslaved fishermen often incur injuries, slicing open hands and even losing fingers, while casting and pulling their nylon nets; they are then left to stitch these wounds themselves, resulting in constant infection. (23)

         Meanwhile, in West Africa, traffickers supply children for labor on cocoa plantations, charging around 230[euro] each (about $288 USD), a price which "includes transport and indefinite use of the child." (24) Traffickers often take children from Mali and Burkina Faso down to Cote d'Ivoire for this purpose. (25) Young children are "heavily involved in the cutting, gathering, and burning of weeds" (26) and incur "cuts and subsequent infections from using machetes." (27) Some reported they had been "beaten and forced to work long hours without pay." (28) Other hazards include "exposure to harmful chemicals in the application of fertilizers and pesticides" (29) and sustaining hernias from carrying heavy loads. (30) All of the major chocolate brands available in U.S. markets have supply chains rooted in this region, which produces about 70% of the world's cocoa. (31)

         Adults and children around the globe continue to fall victim to human trafficking, a highly profitable criminal enterprise that continues to increase in size. (32) Labor trafficking in Thailand and West Africa are but two well-documented examples of a problem of untold proportions. For organizations tasked with fighting the evils of human trafficking and slavery, the first question to be answered is this: How does a practice universally abhorred in the modern world continue to prevail?

      2. Supply and Demand

         Demand created by exploding populations in "first-world" countries contributes to the use of slave labor. For example, U.S. consumers buy more Thai fish than any other nation in the world, most of which is in the form of canned pet food. (33) The "insatiable global demand for seafood" eventually led to a labor shortage of about fifty thousand Thai mariners a year. (34) Desperate to fill so many unwanted positions, the industry resorted to trafficking boys and men from neighboring nations Cambodia and Myanmar. (35) The nature of the sought-after...