WASHINGTON (JTA) — Ben & Jerry’s this week’s decision to pull out of an agreement that would allow the Israeli franchisee to sell its product in what the company calls “Occupied Palestinian Territory” has outraged some Jewish businesses.
But the move could also have legal ramifications in the United States.
As a result of a campaign since the mid-2010s spearheaded by center-right and Christian pro-Israel groups, 33 states have passed laws or issued executive orders targeting the Boycott, Divestment and Sanctions movement against Israel, according to a database released. is maintained by Lara. Friedman on behalf of the Foundation for Middle East Peace and Americans for Peace Now, groups opposing anti-boycott legislation. Pennsylvania is one of those states. (In addition, at least one state, Connecticut, has an anti-boycott law that predates the movement popularly known as BDS.)
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The laws differ in their details, but all require the ending of state affairs with any company that observes a boycott of Israel. Some of the consequences for the company range from divestments of state employee pension funds to the loss of contracts at universities and other state organizations.
It’s unclear whether Ben & Jerry’s withdrawal from what it considers “occupied” territory will fall under the jurisdiction of these laws, but some experts say there’s a good chance it will.
After a series of First Amendments against the laws, many states now set a $100,000 minimum in trade before anti-BDS action can be taken against a contractor. That would mean that the smaller Ben & Jerry’s contracts would remain untouched, even in states with anti-BDS laws. But Friedman told the Jewish Telegraphic Agency that future contracts could be at risk.
“If Ben & Jerry’s is bidding annually on a contract to supply ice cream 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. The letters, he said on Twitter, were coordinated with Israeli Foreign Minister Yair Lapid.
“I ask that you consider speaking out against the company’s decision and taking other appropriate steps, including with respect to your state laws and the commercial dealings between Ben & Jerry’s and your state,” Erdan wrote.
Ben & Jerry’s did not explicitly mention BDS in its statement, which promises, “We will remain in Israel through a different arrangement.”
There may be a wrinkle: Unilever, the British multinational conglomerate, bought Ben & Jerry’s in 2000 from its Jewish founders, Jerry Greenfield and Ben Cohen, under a unique arrangement that allows an outside board to determine how the company achieves social and political goals. embraces. And the board now says that the final statement issued to the public, specifically the pledge to remain in Israel, “does not reflect the position of the Independent Council, nor has it been approved by the Independent Council.”
The chairman of the board, Anuradha Mittal, was outraged by Unilever’s response, telling NBC that Unilever was “trying to destroy the soul of the company. We want this company to be guided by values and not dictated by the parent company.”
An outspoken critic of Israel on social media, Mittal is the founder of the Oakland Institute, a progressive think tank that advocates for issues like trade and land rights.
Even though Ben & Jerry’s current pledge that it will continue to sell in the rest of Israel says it doesn’t consider “occupied,” it may not protect the company from legal repercussions.
Of the 33 states with anti-BDS laws, 21 have measures aimed at boycotts in areas under Israel’s control, i.e. the West Bank. The language usually reads as in the Illinois law passed in 2015: “‘Boycott Israel’ means taking actions that are politically motivated and are intended to punish commercial relations with the State of Israel, cause economic damage or otherwise restrict companies based in the State of Israel or in areas controlled by the State of Israel.”
Ben & Jerry’s could not credibly claim that it does not understand that boycotting settlements would in fact lead to a boycott of all of Israel, argues Eugene Kontorovich, the director of the Center for Middle East and International Law at Antonin Scalia Law School. from George Mason University.
Kontorovich, who is widely seen 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 Israel considers its sovereign territory. (The company’s statement did not specify which areas it wanted to source its ice from.)
“Ben & Jerry’s is doing this in the full realization that this will effectively end their business with Israel,” Kontorovich said.
“Under Israeli law, a company cannot discriminate between Israeli citizens regardless of where they live, especially not on Israeli sovereign territory,” he added. “The licensee understands this very well in this case and has explained to Ben & Jerry’s that… [the licensee] really has no choice but to end the partnership with Ben & Jerry’s.”
Another avenue of legal harm that Ben & Jerry’s critics can enforce involves pensions. Twelve states require retirement funds to be divested for state employees of companies that observe BDS. One is Illinois, where Richard Goldberg, a senior advisor to former Governor Bruce Rauner, drafted one of the first anti-BDS laws in the nation in 2015.
These laws pose a real threat to Unilever, Goldberg said, because the anti-BDS state pension law applies to parent and affiliates of the offending party. (The individual employees, employed by private companies, would not be affected by state law.)
“Unilever, the parent company in this case, is responsible and liable and is subject to the state’s anti-BDS laws as they are written,” Goldberg said.
Goldberg, now a senior adviser to the Foundation for Defense of Democracies, said the language of the divestment — modeled on previous laws mandating divestments of Iran and Sudan sovereign wealth funds — could result in Unilever being removed from its index funds. the state employees.
That’s “an enormous amount of money invested in international equities in just 12 states,” he said.
Goldberg said he was surprised by how little leeway Ben & Jerry’s itself had. Conventionally, he said, companies that divest from Israel do not explain why they are taking such action, which gives them more legal coverage against anti-BDS laws.
“This is death to rights because you have a very formal, explicit announcement from Ben & Jerry’s announcing very clearly that they are taking a step to harm an Israeli company,” he said. “There has truly never been a clearer case, and so high-profile, for a statement allegedly violating BDS laws.”
The last time a major company stopped doing business with Israeli settlements was in 2018, when Airbnb announced it would stop offering settlement accommodations. Lawsuits for alleged discriminatory practices were filed in the US, and Airbnb withdrew within months and settled with the litigants.
That may not be possible in the case of Ben & Jerry’s: The ice cream ban on sales in the West Bank affects both Israelis and Palestinians in the area, while Airbnb’s plans focused only on settlements. 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