On Monday, Ben & Jerry’s ice cream brand announced that it would no longer sell its products in “Occupied Palestinian Territory,” namely, the disputed West Bank. It comes amid claims the brand’s board is now locked in a dispute with parent company Unilever, which later confirmed it remains “fully committed to [its] presence in Israel.”
According to reports, Ben & Jerry’s had been planning this action for several months, ever since Hamas initiated an 11-day conflict with the Jewish state in May. As such, it seemingly indicates the ice cream maker is less concerned with territorial disputes but, rather, with Israel’s right to defend itself in the face of indiscriminate rocket fire by a US-designated terrorist group.
I have been involved in @benandjerrys boycott fot months now. They really decided on this a few months ago, when Israel defended itself from Hamas rockets – so theory that “the Occupation” has anything to do with it is baseless. It’s Jewish self-defense that did it.
— Eugene Kontorovich (@EVKontorovich) July 19, 2021
Nonetheless, Ben & Jerry’s has weighed in on a complex conflict, and its managers have, apparently based on their experience producing sugary cream, unilaterally decided what the future borders of a hundred-year conflict should look like. All the while, the Vermont-based ice cream company has ignored the Jewish people’s historical connection to the land in question, associated legal precedent, and threats to Israel’s security.
The decision also risks placing the company on a collision course with its parent company Unilever. Ben & Jerry’s board chairperson Anuradha Mittal has claimed the original statement was released without her and her colleagues’ approval and that an earlier draft made no reference to Ben & Jerry’s continuing its operations in the rest of Israel.
Mittal asserts that Unilever sent out the statement against the wishes of her board, and in breach of an agreement that was struck when Unilever bought the company in 2000. Under this acquisition deal, an independent board was given control over the company’s social mission and brand integrity. “It’s an amazingly unique acquisition agreement and really ties the hands of the CEO and Unilever,” Mittal said.
A separate statement from the independent board reads: “The statement released by Ben & Jerry’s regarding its operation in Israel and the Occupied Palestinian Territory (the OPT) does not reflect the position of the independent board, nor was it approved by the independent board. By taking a position and publishing a statement without the approval of the independent board on an issue directly related to Ben & Jerry’s social mission and brand integrity, Unilever and its CEO at Ben & Jerry’s are in violation of the spirit and the letter of the acquisition agreement.”
Furthermore, Mittal has claimed that while Ben & Jerry’s could continue to be sold in Israel via a new licensing agreement, this would require the independent board’s approval – something she said has not been done yet. Unilever, for its part, released a separate press release on its website that acknowledged the existence of the acquisition agreement and described the “Israeli-Palestinian conflict is a very complex and sensitive situation,” adding: “We also welcome the fact that Ben & Jerry’s will stay in Israel.”
Free Speech
Under the First Amendment to the U.S. Constitution, Ben & Jerry’s has the right to hold an opinion, and the right to express it. A constitutionally protected opinion doesn’t have to be wise, moral, well-informed, or even right. That is the very essence of free speech.
Indeed, the well known Ben & Jerry’s brand name has offered its opinion on a great deal of publicity-generating issues, including launching flavor “Pecan Resist” in 2018 in opposition to certain policies of former U.S. President Donald Trump that the company claimed were an attempt to “roll back decades of progress on racial and gender equality.” Last year, it released a statement calling on fans to “dismantle white supremacy,” in response to the Black Lives Matter protests that followed the death of George Floyd at the hands of a white police officer.
The power of this global brand to garner significant publicity is well documented. In the hours after its statement was released, its new stance was reported by the likes of the BBC, Bloomberg and the Associated Press. Its tweet announcing the decision also attracted some 14,000 retweets and 66,000 likes.
However, there is an important point the media have left out of their coverage: what Ben & Jerry’s is planning to do in the case of Israel is illegal, and is constitutionally analogous to a private act of war against a U.S. ally. This is exactly what AirBnB attempted to do in November 2018 when it removed listings of properties owned by Israeli Jews in the West Bank, prompting a number of organizations, including HonestReporting, to take actions that helped put a swift end to their misguided and illegal adventure.
Ben & Jerry’s will end sales of our ice cream in the Occupied Palestinian Territory. Read our full statement: https://t.co/2mGWYGN4GA pic.twitter.com/kFeu7aXOf3
— Ben & Jerry’s (@benandjerrys) July 19, 2021
Specifically, HonestReporting filed a complaint with the United States Office of Antiboycott Compliance, and contacted relevant members of Congress. We plan to do the same again if Ben & Jerry’s chooses to move forward with its announced plans.
Foreign Boycotts
The United States Constitution, as well as numerous acts of Congress and various state laws, prohibit American individuals and corporations from participating in boycotts against foreign countries. In addition, 35 states have enacted laws specifically to counter the Boycott, Divestment and Sanctions (BDS) movement against Israel.
In short, a private boycott against a foreign government is not “free speech” like a domestic boycott, as was the case with the American Civil Rights movement of the 1950s and 60s, which included the famous 1955 Montgomery Bus boycott. On the contrary, international boycotts are considered a tool of statecraft that, like war, is reserved to the federal government alone. HonestReporting previously explored this issue in depth.
The best analogy to understand international boycotts is not to regard them as protest movements that may involve domestic boycotts, but rather as international actions like the U.S. blockade of Japan in World War II, or the current sanctions in place against Iran.
Much like forming an independent militia to launch a private war would be illegal, so too are personal international boycotts; this is a power reserved exclusively to Congress. Article I, Section 8 of the Constitution gives the legislature exclusive control over powers of war and powers of international commerce, and for good reason: international boycotts are a powerful and potentially destructive tool. This principle is supported by succeeding laws, including the Sherman Act and the Export Administration Act, as well as by a long line of Supreme Court cases such as the United States vs. O’Brien.
Anti-Israel Member of Congress Ilhan Omar echoed this principle when she objected to U.S. sanctions on Iran, calling them “economic warfare” – an ironic statement from a politician who supports placing similar sanctions on Israel. Yet to a certain extent, Rep. Omar was actually correct: international boycotts are indeed a kind of economic warfare, which is why the United States uses such powers against enemies, like Iran, and not against allies, like Israel.
It is for this reason, the United States does not give corporations such as Ben & Jerry’s the power to wage economic warfare, regardless of who its target is.
The legal ramifications of the brand’s decision have already been picked up on. Israel’s Ambassador to the U.N. and U.S. Gilad Erdan called for legal action to be taken against Ben & Jerry’s in a letter addressed to the governors of the 35 states that approved anti-BDS legislation. “While Arab countries lift the boycott of Israel, it is inconceivable that American companies with radical agendas will go against U.S. policy and work against normalization and peace,” Erdan wrote. He also criticized the decision as “antisemitic” and an “advancement of the delegitimization of the Jewish state and the dehumanization of the Jewish people.”
On Monday, Prime Minister Naftali Bennett also revealed he has warned the head of Unilever that Israel will respond “aggressively” to what he described as a “clearly anti-Israel step.” Bennett’s office said he told Unilever CEO Alan Jope the decision would have “serious consequences, legal and otherwise, and that it will act aggressively against all boycott actions directed against its citizens.”
So @benandjerrys under @Unilever will boycott over the green line, but has no issue selling to Iran and #Syria.
Got it. Ok.
Just another obsession with the Jewish state. https://t.co/r9qFoq1ElO pic.twitter.com/Ld9sR4KSQA
— Emily Schrader – אמילי שריידר (@emilykschrader) July 19, 2021
What’s next?
Ben & Jerry’s has not yet implemented its new policy, which raises a few questions:
- Will Ben & Jerry’s stop selling its products to all residents of what it deems “occupied Palestinian territories,” or will this boycott apply only to Jews, in the manner attempted by AirBnB in late 2018?
- Will Ben & Jerry’s remove its products from any of the other 123 disputed territories around the world such as Northern Cyprus, Western Sahara, Tibet and others, or will it be singling out only the Jewish state?
- What is “occupied Palestinian territory” by the official Ben & Jerry’s definition? Does it include the eastern part of Jerusalem, such as the Old City and the Western Wall? What about the Golan Heights, which the United States recently recognized as Israeli sovereign territory?
- Did Ben & Jerry’s consult with Palestinian officials before making its decision?
If found to be in violation of the relevant laws, Unilever (the Ben & Jerry’s parent company) could be subject to significant fines, tax consequences, or even criminal action. Through such illegal acts, the company could even risk its ability to continue doing business in the United States.
Watch this space for updates.
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