PA anti-BDS law could be triggered by Ben & Jerry’s Israel boycott
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BoycottAct 163 of 2016

PA anti-BDS law could be triggered by Ben & Jerry’s Israel boycott

Rep. Aaron Kaufer: “This type of act is stoking the flames of antisemitism and I don’t want to see this happen to more and more businesses."

Pennsylvania Rep. Aaron Kaufer (R-Luzerne) (Photo courtesy of Aaron Laufer)
Pennsylvania Rep. Aaron Kaufer (R-Luzerne) (Photo courtesy of Aaron Laufer)

There are 35 states with laws or executive orders designed to hobble the boycott movement against Israel. Pennsylvania is one of them.

When Ben & Jerry’s announced last week it would stop selling ice cream in portions of Israel — the areas the company referred to as “Occupied Palestinian Territory” — officials in several states started looking into whether their anti-boycott laws had been triggered. Officials in Florida, Texas, New York, New Jersey and Illinois are reviewing whether the move will require divestment from Ben & Jerry’s parent company Unilever.

Pennsylvania Rep. Aaron Kaufer (R-Luzerne), the only Jewish Republican in the commonwealth’s legislature, is convinced Pennsylvania’s Act 163 of 2016 — which prohibits state agencies or affiliates from contracting with companies engaged in a boycott of Israel — has been triggered by Ben & Jerry’s actions, and he has taken the lead in seeing that it is enforced.

Act 163 had wide-bipartisan support when it was passed in 2016. The House approved the bill 181-9, and the Senate 47-1.

Last week, Kaufer sent letters to Gov. Tom Wolf, Attorney General Josh Shapiro and state Treasurer Stacy Garrity urging them to enforce Act 163.

“Somebody, in my opinion, needed to call this out and say, ‘This has gone too far. I’m taking a stand,’” Kaufer told the Chronicle. “This cannot be condoned, and if I stay silent, I’m condoning what’s going on. I don’t want to see further businesses go down this pathway.”

Anti-Israel decisions of the sort made by Ben & Jerry’s, and implemented by its parent company Unilever (which owns dozens of other brands, including Breyers, Lipton and Hellmann’s), are “prejudiced and antisemitic,” Kaufer continued. “This type of act is stoking the flames of antisemitism and I don’t want to see this happen to more and more businesses. This is something I felt very strongly about.”

Kaufer said he met with the Israeli consulate, and sought counsel from his rabbi, before he sent the letters to Shapiro, Garrity and Wolf.

The responses he received from Shapiro and Garrity were encouraging, he said.

“BDS is rooted in antisemitism,” wrote Shapiro. “The stated goal of this amorphous movement is the removal of Jewish citizens from the region and I strongly oppose their efforts. Governor Wolf rightfully signed a bill 5 years ago which passed with broad bipartisan support to prevent the stain of BDS from taking hold in Pennsylvania. I expect Commonwealth agencies with jurisdiction to enforce the Act.”

Garrity wrote: “I applaud Rep. Kaufer for bringing public attention to this issue. As the General Assembly stated in Act 163 of 2016, Israel is America’s dependable, democratic ally — and it is in the interest of the United States and Pennsylvania to stand with Israel by promoting trade and commerce, and to discourage policies that disregard that interest. Treasury will continue to thoroughly review every disbursement to ensure that Act 163 is followed.”

But the response from Wolf’s press secretary, Lyndsay Kensinger, stated only that “DGS (Department of General Services) has reviewed existing vendor contracts and the commonwealth does not have any vendor contracts with Ben & Jerry’s or with its parent company. Act 163 of 2016 does not apply in this case.”

Kaufer was disappointed by that response.

“They’re not going as far as other states are going,” he said. “If Unilever allows Ben & Jerry’s to go forward with the boycott, according to Act 163 of 2016, Pennsylvania and its vendors must refrain from acquiring any and all Unilever assets or products.”

The governor “should be using his authority to ensure that Pennsylvania vendors are not sourcing products from Unilever,” Kaufer continued. “He has fallen short in using his executive authority to ensure that Act 163 of 2016 is enforced.”

Kaufer said he is taking steps to “make sure the legislative branch complies with this act as we have already made it clear that Pennsylvania stands up for its values and principles and firmly against antisemitism. It is now more important than ever for the attorney general, treasurer and governor to step up and fully enforce the law.”

In a response to the Chronicle’s request for additional comment from Wolf’s office, Kensinger maintained that the commonwealth had no contacts with either Ben & Jerry’s or Unilever that would fall under the purview of Act 163.

“The Act prohibits a ‘contract with a company to acquire or dispose of supplies, services or construction that exceed the applicable small purchase threshold’ that is engaged in a boycott ‘of a person or an entity based in or doing business with a jurisdiction which the Commonwealth is not prohibited by Congressional statute from engaging in trade or commerce,’” she wrote in an email. “After review, the commonwealth holds no contracts with Ben & Jerry’s or with its parent company, Unilever. Consequently, there are no enforcement actions indicated in this circumstance.”

The Pennsylvania Jewish Coalition, which represents Pennsylvania’s Jewish communities before state government and with other Pennsylvanians, has been consulting with Kaufer since Ben & Jerry’s announced it would stop product sales in parts of Israel.

“This is the first time Act 163 has been triggered,” said Hank Butler, executive director of the Pennsylvania Jewish Coalition. The law, which applies to all state agencies and affiliates, including the Pennsylvania Turnpike, the Pennsylvania State System of Higher Education, and state-related universities, parks and prisons, would prohibit them from selling Ben & Jerry’s products and require they terminate any contracts with Ben & Jerry’s, he said.

“We understand that legislators and the attorney general are looking into this,” Butler added.

In response to an inquiry from the Chronicle as to whether the attorney general believes Act 163 would prohibit a state-affiliated entity from selling any Unilever product, a spokesperson for Shapiro said in an email: “Our office is continuing to analyze all relevant avenues to ensure the Commonwealth is doing all that it can to prevent the stain of BDS from taking hold in Pennsylvania.”

Following Ben & Jerry’s announcement, Unilever released a statement saying it remained “fully committed” to its presence in Israel, and that Ben & Jerry’s retained the right of its independent board to make “decisions about its social mission” when it was acquired by Unilever in 2000.

“It’s unfortunate that Ben & Jerry’s chose to take a position contrary to its own parent, Unilever,” said Marc Zucker, president of the Pennsylvania Jewish Coalition. “A boycott of areas subject to future negotiation ultimately may backfire, hurting both consumers and workers of all faiths and ethnicities who participate in the distribution of these products. Singling out Israel in this way offers no path to a two-state solution and interferes with progress toward peaceful reconciliation.”

Kaufer remains determined to do what he can to ensure what he thinks is proper enforcement of the statute. Several of his colleagues in the legislature — both Republicans and Democrats — have extended their support, he said.

“I’m asking the governor to not just address it with Ben & Jerry’s, but the larger corporate entity of Unilever is the one that actually made this corporate decision,” Kaufer said. “The independent board of Ben & Jerry’s forced the hand of Unilever, but Unilever has to realize this is a consequence for their business because they are the corporate entity that wholly owns Ben & Jerry’s, so they are the ones who are responsible for taking the right action, whether that means disregarding this or to change their policy. But something needs to happen or Unilever should be held responsible.” PJC

Toby Tabachnick can be reached at ttabachnick@pittsburghjewishchronicle.org.

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