For the first time in human-rights history, an international mega-corporation has attempted to coerce a licensee into food apartheid. This unprecedented contractual demand has provoked a turning-point lawsuit that asks whether it is legal to attempt to force a food licensee to discriminate against entire communities, especially ethnic ones. More distilled, the lawsuit asks to uphold the basic right to be fair, ethical and legal.
The litigants are “David,” the tiny Ben & Jerry’s licensee in Israel vs. the twin “Goliaths,” Ben & Jerry’s of Vermont and its billion-dollar parent company, multi-brand behemoth Unilever.
Ironically, the effort to compel this food apartheid springs from none other than the alleged icon of social values, Vermont-based Ben & Jerry’s. The famous, funky ice cream brand—operated by aging millionaire hippies Ben Cohen and Jerry Greenfield—has demanded that its longtime Israeli licensee stop selling in eastern Jerusalem, as well as in Judea and Samaria, also known as the West Bank. These regions are predominantly populated by Arabs.
From the beginning, Ben & Jerry’s Israel’s owner, Avi Zinger, knew he could not comply with such an illegal request. In Israel, where communities and entire villages are historically ethnic, commercial discrimination by ethnicity, neighborhood or geographic location is strictly illegal. The United States has enacted laws forbidding similar “redlining” activities by food distributors, service providers and financial institutions.
Ben & Jerry’s Israel could no more boycott heavily Arab Nabi Selah or Hebron than it could boycott the ultra-religious Jewish neighborhoods of B’nai Brak or Mea She’arim. If any Israeli food company tried to implement such discrimination against Arab neighborhoods, it would—within hours—become the subject of global protests by an alphabet of human-rights groups, backed by foreign ministries spanning the globe. But Ben & Jerry’s, now commandeered by anti-Israel BDS zealots, seems determined to compel its Israeli licensee to redline Arabs, as well as many Jews, in its selling areas, violating Israeli law, international law, and Zinger’s own conscience and sense of decency.
When Zinger balked at the illegal discrimination, Ben & Jerry’s—backed up by the executives at Unilever—notified Zinger that his license would not be renewed at the end of 2022. Ben & Jerry’s and Unilever declared that Zinger would be replaced by someone willing to stop selling to eastern Jerusalem, as well as Judea and Samaria, to both Arab and Jew. This, the world was told, was for the betterment of humankind; presumably, because if a Jewish kid on one side of the street in Jerusalem can enjoy a cold scoop but an Arab kid on the other side cannot, we and they are all helped.
A redlining demand is vastly different from withdrawing an entire business from countries engaged in genocide, such as Russia, which is now burning down Ukraine, or China, which is now trying to unexist a million Uyghurs. It bears repeating that Unilever continues to earn millions of dollars per day in both Russia and China while claiming a humanitarian motive in denying tens of thousands of Arabs a scoop of ice cream.
In fact, Ben & Jerry’s and Unilever want to remain in Israel, but only on condition that its licensee, Avi Zinger, stop selling to eastern Jerusalem, Judea and Samaria. This food apartheid is further complicated by the fact that Unilever also holds a majority stake in Strauss Ice Cream in Israel, so any Israeli market share they squeeze out of Zinger can go right back to Unilever through Strauss sales.
Importantly, the delicate balance of Unilever’s control of both prominent ice cream brands in Israel has become the subject of an Israeli anti-trust action and a binding consent decree. That decree specifically prohibits both Unilever and Ben & Jerry’s of Vermont from any interference in the Israeli licensee’s store and distribution plans.
Clause 4 of the decree stipulates: “Unilever and/or BJH [Ben & Jerry’s-Vermont] shall have no right to determine for the Concession Holder the marketing terms of Ben & Jerry’s products in Israel; Unilever shall have no say in the Concession Holder’s decisions regarding the terms of engagement with retailers, the scope and timing of the engagement, and the opening of retail ice cream parlors, their locations and the prices of Ben & Jerry’s products at these parlors. Unilever and BJH, including all their officers, shall not contact the Concession Holder directly or indirectly on such matters.”
Clause 5 stipulates: “BJH, Unilever and Strauss Ice Creams shall not engage in any activity that may interfere with the Concession Holder’s activity in the frozen desserts industry in general, and in the distribution and marketing of Ben & Jerry’s products in particular.”
It seems that Ben & Jerry’s in Vermont and Unilever have already violated the consent decree by “interfering with” and also by “contacting” Ben & Jerry’s—Israel about its locations—especially since those actions were not accidental but deliberate. It remains to be seen whether the attempt to coerce Zinger rises to a criminal conspiracy to quietly violate both the consent decree and Israeli law. If so, prosecutions and extraditions may be on the horizon, and the central figures would be Ben Cohen and Jerry Greenfield, along with corresponding senior executives at Unilever.
Beyond Israeli law, there is applicable international law. A conspiracy to deny foodstuffs to largely Arab eastern Jerusalem or the Arabs in Oslo Areas A, B or C, may constitute an offense under the Fourth Geneva Convention. Article 55 states in pertinent part: “To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate.” An organized effort to deny dairy products could place the executives of Ben & Jerry’s and Unilever in the crosshairs of international tribunals. People may scoff because the product is only ice cream. Today, it’s ice cream, tomorrow it’s milk, and the day after, it’s bread. Food must never be withheld from a population. The very discussion is distasteful.
To fight back against Ben & Jerry’s corporate headquarters and Unilever, Zinger has recruited some of the most accomplished civil rights and corporate misconduct attorneys on the planet. These include constitutional law legend Nathan Lewin, civil-rights crusader Alyza Lewin of the Brandeis Center, Brandeis Center vice chair Rachel Lerman, Israeli issues advocate Marc Zell, former New Jersey Assistant Attorney General Edward J. Dauber and New Jersey commercial superlawyer Linda G. Harvey.
Ben and Jerry thought they could control who gets to eat what in the Holy Land. To borrow from their famous flavors, these two half-baked chunky monkeys may discover that a very rocky road lies ahead.