Criticism against certifications and auditing amplifies

Published in HREDD Newsletter/November 2021 issue

We shared in our June newsletter how we had developed a position paper on voluntary sustainability standards (VSS) in HREDD legislation to confirm our standpoint in the ongoing debate on the role of certifications and auditing as a HREDD tool. In our paper we say that reliable VSS such as Fairtrade can support companies’ HREDD work but that we are not a guarantee for zero violations. We also state that the scope of mHREDD laws should also extend to VSS.

Since June, we have come across more criticism and reluctance on VSS. The full study* by ECCHR, Brot für die Welt and MISEREOR is now available. BHRRC writes in its analysis of the study: ”Therefore, auditing and certification companies – as they currently function – are barely fit to respect human rights themselves and are not fit to audit and certify human rights-related topics of others.”

Cover page of the ECCHR, Brot für die Welt and Misereor paper.

Another critical study** was launched in September by BHRRC. It provides legal analysis of how to make civil or criminal claims against social audit firms and certification schemes, and recommends further efforts to hold social audit firms to account for human rights harms. Does this mean that there may be legal cases also against FLOCERT/Fairtrade in the future? Yes, we assume this could be the case.

An example of such a case comes from the USA,  where Corporate Accountability Lab (CAL) filed suit in D.C. Superior Court against Hershey and Rainforest Alliance for false and deceptive marketing. CAL is acting on behalf of consumers. Quoting the press release: “This lawsuit challenges Hershey and Rainforest Alliance to admit to consumers that their cheap products rely on cocoa farmers’ poverty, child labor, and other exploitative labor practices and to change their purchasing and certifying habits and treat farmers with dignity,” said Allie Brudney, Staff Attorney at Corporate Accountability Lab.

In October, BHRRC published another paper***, recommending e.g. that laws should ”make clear that social audits and certifications, or any other company process, policy or membership, do not constitute a safe harbour against liability claims”.

Still another concrete example is an open CSO letter to European policy makers, coordinated by Clean Clothes Campaign.The letter is critical towards social auditing and certifications warning about their “systemic failures”, ineffectiveness and lack of provision of remedy. “It is essential to ensure that the upcoming legislation’s provisions explicitly exclude social audits and certification as adequate proof of HRDD in a court of law…” the letter states.

How are we addressing criticism at the moment?

How are we addressing criticism at the moment?

  • We engage in active dialogue and collaboration with mHREDD coalitions, including many critical organizations at the level of the EU and several member countries.
  • We seek to highlight that Fairtrade works closely together with rightsholders (farmers and workers) and key stakeholders like trade unions.
  • We are developing our own due diligence process, including the Fairtrade-wide risk assessment. This can act as our partial defence when we are sued.

We will continue following-up on this topic and keep you posted.

*Title: Human rights fitness of the auditing and certification industry? A cross-sectoral analysis of current challenges and possible responses (2021).
**Title: Social audit liability: Hard law strategies to redress weak social assurances (September 2021).
***Title: Beyond social auditing – Key considerations for mandating effective due diligence (October 2021).