First draft of new industry-led initiative charts uncertain course toward “responsible labor practices” in US produce sector…

Brief: There’s nothing like the “power of the purchasing order” for turning standards on paper into reality on the ground when violations of a code of conduct occur, and there’s nothing resembling that sort of market consequence with real teeth — yet — built into the produce industry’s recently released “Ethical Charter.”  Genuine, informed worker participation and real enforcement mechanisms will be imperative going forward if this new initiative is to have any hope of success in bringing meaningful human rights protections to the US and Mexican produce industries.

Two of the country’s largest produce industry trade associations — the United Fresh Produce Association and the Produce Marketing Association — announced several months ago that they are joining forces to develop a framework for responsible labor standards and practices in the US and Mexican produce industries.  As part of this process, they recently released what they are calling their joint “Ethical Charter” and are seeking public comment on the clarity, comprehensiveness, and inclusiveness of the Charter as they look to refine the initial product of their deliberations.  You can find the public draft of the Charter in its entirety here.

For the record, neither the CIW/Fair Food Program nor any other worker-led organization that we are aware of was at the table as this Ethical Charter was being developed, and, unfortunately, that omission is reflected clearly in the result.  We nonetheless are offering the following analysis of the Charter during the open comment period so that the UFPA/PMA can, if they are serious about achieving change, have the opportunity to correct course before proceeding further.

While there are some positive aspects to the Charter, which we discuss below, overall it is long on hopes and expectations, but short on any discussion of mechanisms to turn those hopes into reality.  

More importantly perhaps, the Charter lacks the level of commitment to rooting out current abuses that its authors are capable of when they are desirous of real change in the status quo.  And so, before getting into the specifics of the Charter itself — its strengths and its shortcomings — and its approach to labor rights violations, it is perhaps useful to begin with a quick comparative study of the industry’s response to a similar issue: food safety violations. 

Food Safety vs. Worker Safety: Different Approaches to Similar Problems…

That requisite level of commitment was evident back in 2006 at the PMA Fresh Summit, following close on the heels of a deadly E. Coli outbreak in spinach earlier that year.  As reported recently in a leading produce trade magazine, The Packer (“Our aim must be zero illness,” Jan 3, 2017), the PMA’s CEO Bryan Silbermann addressed the assembled industry representatives:

He asked the industry to grieve for victims of the outbreak as if they were from their own families.

“Any loss of life, any suffering from illness caused by fresh produce product is one too many,” Silbermann said. “Our aim must be zero illness because the public will judge us based on their perception, not ours.”

Showing a picture of… a two-year-old who died in the outbreak, Silbermann concluded his address by saying “Never again, Never ever again.”

That commitment to zero tolerance for health-related threats to their product led directly to the industry doing a complete about face regarding federal oversight of their food safety practices.  According to the Packer:

That shared industry conviction to do more about produce safety gave birth to many initiatives, including the California and Arizona Leafy Greens Marketing Agreements, the Produce Traceability Initiative, the Center for Produce Safety, numerous commodity specific produce guides and, by early 2007, the industry’s acceptance of federal food safety oversight.

The contrast between the industry’s robust response to food borne illness and its considerably more tepid approach to rooting out labor abuses is not hard to discern. The authors of the UPFA/PMA Ethical Charter have not prefaced their work by saying “Any loss of life, any suffering from a human rights abuse in fresh produce is one too many.” And yet, as has been the case with food safety issues, human rights abuses in agriculture have caused incalculable human suffering — and, yes, loss of life – for generations of farmworkers.

But historically the industry has been largely indifferent to that suffering. Leaving aside, for example, the endemic wage theft in agriculture, and the havoc that wreaks on already impoverished families, one is left to confront the industry’s response — or rather, lack of response — to the cases of forced labor, sexual assault, avoidable unauthorized farm labor transportation accidents, pesticide poisoning, and violence against workers that continue to plague the country’s fields. Before the advent of the Fair Food Program, there were numerous such abuses in Florida tomatoes, and yet not once did any major retailer discontinue purchasing from the farms involved. While that is no longer the case on FFP farms, it remains the norm elsewhere in the industry.

That norm, and the produce industry’s indifference to it, may have been best captured in the now infamous words of Publix spokesperson Dwaine Stevens from just a few years ago, who, when asked about a brutal slavery operation discovered in the company’s supply chain, said “If there are some atrocities going on, it’s not our business.”  Or perhaps it is best exemplified today by Wendy’s ongoing decision to abandon Florida tomato growers following the industry’s implementation of the Fair Food Program, widely considered the leading program for the protection of farm labor rights in the US today, and shift its purchases instead to Mexico, where human rights violations are widespread and remain largely unchecked.  If the underlying issue were food safety,  statements like Mr. Stevens’, or moves like that made by Wendy’s, would be simply unimaginable.

In short, while food safety violations carry with them their own market consequences, human rights violations do not.  Buyers, both massive retail chains and millions of individual consumers, will stop purchasing produce — stop cold — when news of a deadly E. Coli outbreak hits the headlines.  

Front page news of human rights abuses, on the other hand, no matter how grave, simply doesn’t inherently elicit the same market response.  Social responsibility programs must build those consequences into their structures if they are to have any hope of success in combating longstanding labor rights abuses in the fields.

Viewed in this context, the efforts to date of UFPA and PMA, as reflected in the language and approach of the Charter (discussed below), can be seen as lacking the urgency and commitment necessary to accomplish real change. The industry demonstrated that urgency in response to the harm caused by food borne illnesses, and until it does the same in response to the harm caused by ongoing human rights abuses it is difficult to see how it will accomplish its stated goals of respecting and protecting the human dignity of its work force.

The Ethical Charter: Its strengths…

Starting from the premise that much more is needed to accomplish real change, it is nonetheless the case that the Charter contains several commendable statements of what its authors call “Our Values.”  These statements include:

• “We respect, value and encourage a positive relationship between the employer and the employee…”
• “We believe in personal accountability throughout the supply chain from workers to consumers to deliver our shared vision of responsible labor practices…”
• “Responsible labor practices are the right thing to do and the success of our industry depends on it.”

These aspirational statements represent significant progress when compared to the historically harsh reality regarding supply chain accountability in the produce industry.  To its credit, the UFPA/PMA initiative clearly demonstrates a more progressive understanding of responsible labor practices and accountability than has been articulated by the industry in the past.

and its shortcomings.

In these stated values, one can find signs indicating that the authors of the Charter mean well. However, any clear-eyed analyst of the social responsibility field would be forced to conclude that the landscape is cluttered with a wide array of high-minded initiatives that have nonetheless failed to protect workers’ fundamental human rights.  The consequences of these failures are measured in the unacceptable number of worker deaths in factory fires and building collapses, the countless victims of sexual harassment and sexual assault in the fields, and the endless headlines of forced labor on cocoa plantations and the high seas.  The vast majority, but not all, of these failed initiatives are corporate or employer-led, and their shortcomings — from weak standards to ineffectual audits and a total lack of enforcement mechanisms — are as well-documented as they are widespread. 

In the realm of human rights abuses in the workplace, it is our experience, following six years of implementation of the Fair Food Program, that a) worker participation and b) enforcement mechanisms with meaningful consequences for violations are, together, the defining factors in any successful effort.  If the Charter is ever to become something more than just words on paper, the industry must ensure that both those elements are present — in the form of effective, concrete processes built into the DNA of the effort, from the development of its standards and structures to its day-to-day operation on the ground.  

Unfortunately, it appears from the information available at this time that the UFPA/PMA’s Ethical Charter is sorely lacking in precisely these two key areas — worker participation and meaningful enforcement mechanisms.  As a result, the Charter is at this stage, with one exception, little more than an elaborately-constructed promise to do nothing more than comply with existing labor laws, without any means to monitor or enforce even that limited goal.

[The exception, interestingly, involves the use of child labor, where the Charter proposes an industry standard (workers must be 14 or 15 years old, depending on certain circumstances) when the law provides none. Given the widely-recognized weakness and exceptionalism of U.S. labor laws as they relate to agriculture, one is left to wonder why the Charter encourages the industry’s members to do what’s right, as opposed to what’s required, only with regard to child labor. Certainly effective steps to reduce the likelihood of forced labor, like requiring direct hire of all workers, are equally worthy of consideration.] 

Lack of worker participation and its consequences…

The lack of worker participation in the development of the Charter thus far has had several predictable consequences.  First, as noted, it has limited the Charter’s vision of change to a generic list of standards that amounts to a catalog of the current legal requirements for labor management.  Phrases such as “laws applicable to our industry,” “in accordance with applicable laws,” and “comply with all applicable legal requirements” appear regularly in the document and set the parameters of the Charter’s mandate.  It is a timid vision of progress that seems to reflect the employers’ fear of change, not the workers’ hopes for more humane treatment, respect, and a voice at work. 

Second, the lack of worker participation is reflected in the Charter’s flaccid promises of enforcement.  Words such as “we expect,” “we believe,” “we commit,” and “we pledge” do nothing to explain how employers will be held accountable to the expectations delineated in the Charter.  Had workers been involved in the drafting process they surely would have included clear and meaningful consequences for violations to ensure that their human rights were respected and protected.

Even in the two passages where the Charter appears to rise above these limitations, in the sections titled “Communications & Worker Protections” and “Responsible Purchasing Practices,” the language is so vague as to render the provisions inconsequential.  In the former case, which concludes, “We pledge to support (complaint) channels that meaningfully protect workers from all forms of retaliation,” the authors appear to touch on two key elements of effective rights enforcement, a complaint mechanism and protection against retaliation.  But that appearance is belied by the facts — certainly not lost on the authors — that a) precious few such complaint channels exist in the agricultural industry today, and b) “meaningful” protection against retaliation requires exactly the kind of real consequences for violations that the Charter so consistently eschews.  Without consequences for non-compliance, promises to protect workers from retaliation are little more than a cruel hoax.  That reality will not be lost on farmworkers, who will be quickly reminded that they still complain at their own risk.  

The section on “Responsible Purchasing Practices,” which begins with the statement “We pledge to align our planning and purchasing practices with our commitment to responsible labor practices,” likewise uses language so broad that it renders this “pledge” meaningless.  Compare the Charter’s use of the ambiguous term “align” with the Fair Food Program’s firm requirement that Participating Buyers “only purchase” from Participating Growers in good standing with the Fair Food Program.  The difference in language between the Charter and the Fair Food Program is the difference between a document drafted by employers and buyers concerned with avoiding disruptions in sales and supplies, respectively, and one drafted by workers, concerned with avoiding violations of their human rights.  Since the Fair Food Program has clearly demonstrated that growers, buyers and workers all thrive under the latter formulation, why would the authors of the Charter feel the need to adopt such a watered-down approach? 

Summary

In summary, while at least articulating a more modern vision of supply chain accountability, the Charter as it currently stands is hamstrung by the clear lack of industry commitment and worker participation.  This lack of worker voice has left the UFPA/PMA initiative with inadequate standards and an absence of any real commitment to compliance, draining it of any potential for bringing about meaningful change absent a significant change of course.

To convert its hopes and expectations into reality, the UFPA and PMA will now have to turn their attention to creating the necessary enforcement mechanisms to ensure success.  In response to food borne illnesses, that meant reversing course and accepting federal oversight of food safety, among other monitoring and enforcement regimes.  Building a similarly effective program for responsible labor practices will require the authors to move beyond the Charter’s current vaguely-worded promises to an effective set of standards and enforcement mechanisms that harness genuine – informed, empowered, not ornamental — worker participation to accomplish real change and, as the Fair Food Program demonstrates, benefit everyone in the industry.