Shiur #30: Food Produced by Non-Jews:
By Rav David Brofsky
Tractate Avoda Zara, in addition to expounding upon the numerous laws concerning idolatrous practices, also addresses the status of non-kosher foods and utensils. Among the many kashrut issues that appear in this masekhet, special attention is given to the laws of foods that were produced by non-Jews.
The Mishna (Avoda Zara 35b) states:
These are the products of non-Jews which are forbidden, although one may derive benefit from them: milk which was milked by a non-Jew without a Jew watching, their bread and oil, although Rebbe (Rabbi Yehuda Ha-Nasi) and his court permitted their oil, and cooked foods.
In other words, the mishna records the prohibitions of chalav akum, pat akum, and bishul akum.
In the next few shiurim, we will analyze these three prohibitions, beginning with chalav akum.
Reason and Nature of Issur:
Regarding this group of prohibitions, we must ask ourselves a number of questions. Firstly, why did the rabbis forbid the consumption of these products? Secondly, what type of prohibition did they create? And finally, what are the details and applications of these specific halakhot?
Theoretically, one may suggest two reasons to prohibit food prepared by a non-Jew. On the one hand, we may suspect that food produced by a non-Jew contains non-kosher ingredients, and therefore without proper supervision or Jewish involvement, the food should be prohibited. On the other hand, there may be foods that the rabbis prohibited in order to limit our social contact with non-Jews, which may lead to intermarriage and other negative cultural influences.
The Gemara (35b) is clear regarding the issur of chalav akum. While we need not be concerned that the non-Jew will switch kosher milk for non-kosher milk (milk from a forbidden animal - as kosher milk is white and non-kosher milk is yellowish ("yarok") - we are concerned that in order to elevate the level of milk production, a non-Jew may mix kosher and non-kosher milk. Therefore, without proper Jewish supervision, a non-Jew's milk is considered "chalav akum" and is prohibited.
What type of issur did the rabbis create? Theoretically, chazal may have employed one of two different models of issurim.
On the one hand, they may have created an entirely new prohibited substance. One may claim that just as non-kosher meat may be classified as an "issur cheftza," a substance which is inherently prohibited, similarly they may have also defined these issurim as prohibited substances.
Alternatively, they may have simply stated that one should not eat these foods, although they are not to be viewed as inherently prohibited. We may call this type of issur an "issur gavra."
The most practical difference between these two approaches - i.e., whether or not these substances are to be viewed as inherently prohibited - is whether this issur may taint other foods or utensils. Should we equate these issurim with neveila, which prohibits the utensil in which it was cooked, or not?
Logically, one might suggest that if a food produced by a non-Jew is prohibited in order to prevent socializing and intermarriage, then the food itself should NOT be perceived as an "issur cheftza" and should NOT prohibit the utensil in which is was prepared. However, if our concern is that the non-Jew may have introduced a non-kosher substance into the food, then we may be required to view the product as an inherently non-kosher substance which would thereby prohibit a utensil.
Regarding milk, the Rema (YD 115) notes that chalav akum DOES prohibit utensils. The Gra and the Shakh both suggest that we are stringent regarding chalav akum, as we are concerned that the non-Jew may have introduced non-kosher milk into the kosher milk. This stands in sharp contrast to pat akum, which we shall discuss next week.
Situations of Certainty:
For almost a thousand years, Rishonim and Acharonim have discussed whether this prohibition should apply in societies in which non-kosher milk is not available or not consumed. Certainly in America and other countries, where there are virtually no camels, and pigs are certainly not used for their milk, and commercially sold milk is supervised by the government, one may question whether there is any need to adhere to the gezeira of chalav akum.
I would like to present two arguments that were suggested in order to justify the lenient approach to chalav akum, which does not require, in our societies, Jewish supervision of milk production.
Firstly, the Rishonim and Acharonim discuss whether the prohibition of chalav akum is applicable even if we are certain that the milk is kosher. In other words, was this legislation a "davar she-beminyan" which requires another bet din to annul it, or is the reason incorporated into the actual legislation?
This is a broad question regarding many rabbinic prohibitions, and is often discussed in the context of the prohibition of clapping and dancing on Shabbat (see Beitza 30a and Tosafot s.v. Tenan), as well as other rabbinic prohibitions.
The first to raise this possibility was the Mordekhai (Avoda Zara 846), commenting on the Gemara's requirement that a Jew stand on the periphery of the non-Jew's herd, in order to insure that the non-Jew will be too scared to adulterate the milk. The Mordekhai questions whether this requirement is only necessary if the non-Jew has both kosher and non-kosher animals in his herd, or also if he has only kosher animals. In other words, is the gezeira of chalav akum absolute, even when the reason is not applicable, or is it subject to a true concern for the adulteration of the milk?
The Mordekhai cites Rabbeinu Peretz who maintains that supervision is still necessary, lest the non-Jew still introduce non-kosher milk or lest the utensil into which the cow was milked already contain non-kosher milk. While his ruling is stringent, his reasoning implies that if the reason for the legislation truly doesn't apply, then no Jewish supervision would be necessary.
The Radbaz (YD 2:75) points this out, and concludes that if we are certain that no non-kosher milk was added, then there is no requirement for Jewish supervision. Similarly, the Peri Chadash (YD 115) rules that if non-kosher milk isn't available in one's vicinity, or if non-kosher milk is so expensive that it was certainly not mixed with kosher milk, then there is no reason to be stringent. In fact, he testifies that aside for a few pious individuals, the custom in Amsterdam was to drink milk without supervision, and that he too drank this milk!
Other Acharonim disagree. The Chatam Sofer (YD 1:107) argues that chalav akum is an absolute gezeira (davar she-beminyan) which can only be revoked by another bet din. Furthermore, the Arukh Ha-Shulchan (YD 115) cites and dismisses the opinion of the Peri Chadash (without naming him), arguing that chalav akum is always forbidden.
(He even relates a story in which a number of merchants, accustomed to drinking chalav akum while traveling, were shocked to discover that the creamy milk drink, which they purchased each morning from a non-Jewish store owner, was actually prepared with ground animal brains. Needless to say, they confessed their sin and were then convinced of the profound wisdom of the rabbis' words.)
In summary, the relationship between the reason for the legislation and its applicability is subject to debate.
Alternative Forms of Supervision:
While the applicability of chalav akum in a society in which there is virtually no fear of adulterated milk is subject to debate, we may question what type of supervision is necessary in order to permit milk produced by a non-Jew.
The Gemara (Avoda Zara 39) rules that while a Jew does not have to witness the milking of the cow, he must at least be present, in order to create an atmosphere of "mirtat," in which the non-Jew would be afraid to adulterate the milk.
The Rema, however, extends the notion of supervision. He argues that "maids (shefachot) who milk animals in the Jew's house or pen, if their houses are not in between the Jew's house (and the field where the cows are milked), and if there is no fear that they will introduce non-kosher milk into the kosher milk, then one may leave them to milk, even le-khat'chila, even though there is no Jew present."
The Chazon Ish (YD 41:4), based upon this Rema and the previously cited Peri Chadash, permits milk produced in factories. He argues the government supervision should be no worse than the Jewish supervision in the case of the Rema, and therefore the milk should be permitted.
Rav Moshe Feinstein (Y"D 1:47) also permitted government-supervised milk. He argues that just as at times, one can achieve certainty even without actually seeing something, similarly, the governments supervision should be a sufficient fulfillment of the requirement of Jewish supervision. While he notes that the "ba'ale ha-nefesh" (pious) should be stringent, and that their behavior is not considered "yuhara," and that he himself only drinks chalav yisrael, he repeats this lenient ruling in a number of responsa.
Others (see Chelkat Yaakov 2:37-8) disagree with this lenient ruling of Rav Moshe Feinstein and the Chazon Ish.
In America, the OU, based on the ruling of Rav Moshe Feinstein, does not insist upon chalav yisrael, and permits the use of what has become known as "chalav stam." Other organizations, such as the Star-K, only sanction the use of chalav yisrael.
Kashrut organizations generally "kasher" utensils which were used for chalav stam when producing chalav yisrael (see, for example, http://www.okkosher.com/Content.asp?ID=169).
However, it seems that individuals, even those who are stringent regarding chalav yisrael, may rely, be-diavad, upon, the lenient approaches developed above and use dishes and utensils of someone who does not only drink chalav yisrael.
Milk in Israel - Chalav Yisrael and Powdered Milk:
In Israel, all packaged milk is chalav yisrael. Therefore, milk that originates from non-Jewish farms is produced under Jewish supervision. Furthermore, some "mehadrin" hashgachot, such as Tnuva, insure that there is Jewish supervision even on a Jewish farm, if the workers aren't Jewish.
However, the Rabbinate is lenient, at least for the "regular" hashgachot (not "mehadrin"), regarding one issue: powdered milk. A number of Acharonim addressed the status of powdered milk. The Chazon Ish, for example, in the essay cited above, sees no distinction between powdered milk and liquid milk.
Rav Tzvi Pesach Frank (Har Tavi YD 103), however, disagreed. He claimed that even those who are stringent regarding "chalav stam" should still agree that the gezeira does not apply to milk which has assumed a new form, i.e., powder.
Based on his responsa, and because of the general shortage of powdered chalav yisrael, the "regular" hashgachot permit the use of powdered chalav stam, while the "mehadrin" hashgachot insist upon powdered chalav yisrael.
For further research into the kashrut and production of chalav yisrael, and specifically of powdered milk, see http://www.okkosher.com/Content.asp?ID=169 and http://www.kashrut-tnuva.co.il/docs/14b.doc.
Before concluding, I would like to bring to our attention two other issues of concern to the consumer of kosher milk, especially in Israel.
1. The Poskim discuss the status of milk which was milked, in a prohibited manner, on Shabbat. This issue is obviously more applicable in Israel, and is a major difference between "regular" and "mehadrin" milk. See http://www.kashrut-tnuva.co.il/pg17b.htm, for example, for Tnuva's presentation of the issue.
2. In recent years, there has been much discussion regarding the impact of routine medical procedures on cows. Some procedures may render the cow a "treifa," which of course would prohibit all of its milk. American and Israeli authorities have addressed the issue. Some chalav yisrael farms in America, as well as mehadrin hashgachot in Israel, have taken steps to insure that these procedures do not compromise the kashrut of the milk. Some cite this as another reason to only drink chalav yisrael! See http://www.kashrut-tnuva.co.il/pg1b.htm for Tnuva's perspective.
Next week we will discuss the laws of pat akum and their applicability today.