How US laws against boycotting Israel could hit Ben & Jerry’s

WASHINGTON (JTA) – Ben & Jerry’s decision this week to withdraw from a deal that allowed its Israeli franchisee to sell its product in what the company calls “Occupied Palestinian Territory” has angered some companies owned by Jews.

But this decision could also have legal repercussions in the United States.

Following a campaign waged since the mid-2010s by pro-Israel center-right and Christian groups, 33 states have passed laws or issued decrees targeting the boycott, divestment and sanctions movement against Israel. , according to a database maintained by Lara. Friedman on behalf of the Middle East Peace Foundation and Americans for Peace Now, groups that oppose anti-boycott legislation. Pennsylvania is one of those states. (Additionally, at least one state, Connecticut, has an anti-boycott law that predates the movement popularly known as BDS.)

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The laws vary in their details, but they all require an end to state business with any company that observes a boycott of Israel. Some consequences for the company range from the divestment of pension funds from state employees to the loss of contracts in universities and other public organizations.

It’s not clear whether Ben & Jerry’s removal from what it considers “occupied” territory will fall under the jurisdiction of these laws, but some experts say there’s a good chance that will happen.

Following a series of First Amendment challenges, many states are now setting a minimum amount of $ 100,000 in commerce before anti-BDS measures can be triggered against a contractor. This would mean that smaller Ben & Jerry’s contracts would not be affected, even in states with anti-BDS laws. But Friedman told the Jewish Telegraph Agency that future contracts could be in jeopardy.

“If Ben & Jerry’s bid every year for an ice cream supply contract to the University of Texas and the University of Texas has an anti-BDS clause that you have to sign when you bid, that could be a problem. . ,” she said.

On Tuesday, Israel’s Ambassador to the United States Gilad Erdan wrote to the governors of each of the states asking them to take action in accordance with their anti-BDS laws. Letters, he said on Twitter, have been coordinated with Israeli Foreign Minister Yair Lapid.

“I urge you to consider denouncing the company’s decision and taking any other relevant action, especially with regard to your state’s laws and the commercial relationship between Ben & Jerry’s and your state,” Erdan wrote.

Ben & Jerry’s did not explicitly mention BDS in its statement, which promises “We will stay in Israel under a different arrangement.”

There may be a problem: Unilever, the British multinational conglomerate, bought Ben & Jerry’s in 2000 from its Jewish founders, Jerry Greenfield and Ben Cohen, as part of a unique deal that allows a board of directors external to determine how the company embraces social and political causes. And the board now says that the final statement released to the public, in particular the pledge to stay in Israel, “does not reflect the position of the independent board, and has not been approved by the board of directors. ‘independent administration’.

Chairman of the board, Anuradha Mittal, was furious at Unilever’s response, telling NBC that Unilever was “trying to destroy the soul of the company.” We want this company to be driven by values ​​and not dictated by the parent company. ”

Mittal, an outspoken critic of Israel on social media, is the founder of the Oakland Institute, a progressive think tank that advocates for issues such as trade and land rights.

Even though Ben & Jerry’s current pledge says it will continue to sell to the rest of Israel that it does not consider “occupied”, that may not protect the company from legal repercussions.

Of the 33 states with anti-BDS laws, 21 have measures that target boycotts that include areas controlled by Israel, i.e. the West Bank. The language generally reads as in the Illinois law passed in 2015: “‘Boycott Israel’ means engaging in actions which are politically motivated and are intended to penalize, inflict economic harm or limit trade relations with the country. State of Israel or companies based in the State of Israel or in territories controlled by the State of Israel.

Ben & Jerry’s couldn’t credibly claim that he didn’t understand that a boycott of the settlements would actually lead to a boycott of all of Israel, argues Eugene Kontorovich, director of the faculty’s Center for the Middle East and International Law law student Antonin Scalia from George Mason University. .

Kontorovich, who is widely regarded as an “intellectual architect” of the anti-BDS legislative push, noted that Israeli laws effectively prohibit boycotts of the West Bank and that the term “occupied Palestinian territory” likely includes East Jerusalem, which he said. Israel considers it its sovereign territory. (The company’s statement did not specify which territories it was seeking to extract its ice cream from.)

“Ben & Jerry’s does it with full knowledge that it will end its business with Israel,” Kontorovich said.

“Under Israeli law, a company cannot discriminate between Israeli citizens, no matter where they live, and certainly in sovereign Israeli territory,” he added. “The licensee, in this case, understands this perfectly and explained to Ben & Jerry’s that [the licensee] really has no choice but to end his association with Ben & Jerry’s.

Another avenue of legal damage that critics of Ben & Jerry can argue concerns pensions. Twelve states mandate divestment of pension funds for state employees from companies that observe BDS. One is Illinois, where Richard Goldberg, senior adviser to former Governor Bruce Rauner, drafted one of the country’s first anti-BDS laws in 2015.

These laws pose a real threat to Unilever, Goldberg said, because the anti-BDS state pension law is applicable to the offending party’s parent and affiliate companies. (Its individual workers, employed by private companies, would not be affected by state law.)

“Unilever, being the parent company in this case, is responsible and is liable and is subject to state anti-BDS laws as written,” Goldberg said.

Goldberg, now a senior adviser to the Foundation for the Defense of Democracies, said the divestment language – inspired by previous laws requiring the divestment of funds from state employees in Iran and Sudan – could lead to the Unilever’s withdrawal from government employee index funds.

This is “a huge amount of money in 12 states invested in international stocks,” he said.

Goldberg said he was surprised at how little wiggle room Ben & Jerry’s left for themselves. Traditionally, he said, companies that disengage from Israel do not explain why they take such steps, giving them more legal cover against anti-BDS laws.

“This is completely normal because you have a very formal and explicit announcement from Ben & Jerry’s announcing, very clearly, that they are taking action to harm an Israeli company,” he said. “There has never been a clearer, and more high profile, case for a statement that violates BDS laws.”

The last time a large company went out of business with Israeli settlements was in 2018, when Airbnb announced that it would stop listing settlement housing. Lawsuits alleging discriminatory practices were filed in the United States, and Airbnb withdrew in a few months, settling with the litigants.

This may not be possible in the case of Ben & Jerry’s: The ban on the sale of ice cream in the West Bank affects both Israelis and Palestinians in the territory, while Airbnb’s plans focused only on colonies. One of the attorneys in the Airbnb case, David Abrams, told JTA he had no comment on the Ben & Jerry’s case at this time. PJC

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