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By Rabbi Yona Reiss, cRc Av Beth Din
Published in Journal of Halacha and Contemporary Society LLX
It has become customary for kashrus agencies to accept the leniency of Rabbi Moshe Feinstein allowing kosher certification of commercially manufactured milk in the United States despite the absence of a mashgiach (kosher supervisor) at the milking facility or production site. However, the recent introduction of camel milk to the commercial market, and its ancillary issues, has raised concerns regarding the continued viability of his ruling from both a factual and halakhic perspective.
This article shall explore the impact of recent changes in factual circumstances with respect to four different areas of halakhic analysis: (a) the certification of milk in the United States according to Rabbi Moshe Feinstein; (b) the certification of milk in the United States according to the Pri Chadash; (c) the reliance upon the opinion of Rabbi Moshe Feinstein with respect to the production of kosher cheese from non-certified milk; and (d) the issue of milk pasteurization from the standpoint of bishul yisroel (the requirement that foods be cooked by Jews in order to be considered kosher).
According to the Mishna in Avodah Zarah, one of the rabbinic enactments forbidding food produced by non-Jews is with respect to milk.[1] The Talmud explains that the reason for the prohibition is because of the fear that a non-Jewish farmer may mix the kosher milk with non-kosher milk. The Talmud elsewhere derives from scriptural sources that milk from kosher animals, such as cows, is considered to be kosher, while milk from non-kosher animals, such as camels, is not kosher.[2] Although kosher milk and non-kosher milk have different coloring and therefore cannot be switched without detection, a small bit of admixture might escape notice in the absence of supervision.[3]
However, the Talmud indicates that the nature of supervision varies based on the level of concern. In the event that there are no non-kosher animals in the flock, it is sufficient for a Jewish watchperson to sit outside of the farm area in order to ensure that no non-kosher animals are transported inside. In the event that there are non-kosher animals in the flock, the Jewish watchperson can still sit outside but needs to be able to see the milking of the animals upon standing up. Even if the Jewish watchperson sits most of the time (or comes and goes)[4] the fact that the watchperson can stand and watch at any time creates a sense of “mirsas” – of fear – on the part of the gentile farmers so that they will not mix together the kosher milk with the non-kosher milk.[5]
Milk which is supervised in this manner by a Jewish watchperson is considered “Chalav Yisroel.”[6] Milk produced by gentiles which is not supervised by Jews and is therefore prohibited for consumption according to rabbinic law is considered “Chalav Akum.” However, rabbinic authorities wrestled with a third category of milk, generally described as “Chalav Stam” (regular milk) which is a reference to milk that has not been supervised by a Jewish watchperson but which also does not contain a realistic concern that there has been an admixture of non-kosher milk.
According to the Pri Chadash,[7] the stringency of requiring a Jewish watchperson only pertains to a situation where there are some non-kosher milking animals in the city which could conceivably be brought into the milking facility. However, when there is no realistic chance of non-kosher milk being mixed with the kosher milk, either because there are no non-kosher milking animals in the city, or because the non-kosher milk is considerably more expensive than the kosher milk, no Jewish supervision is required in order for the milk to be kosher. He brings a proof from the fact that the Talmud allows a lesser standard of supervision when there are no non-kosher animals in the farm, in which case the Jewish watchperson situated outside does not even need to have the potential of watching the actual milking process. Since a lesser standard of supervision is allowed when the concern of the admixture of non-kosher milk has been reduced, an even lesser standard can be countenanced when there is no concern whatsoever.
The opinion of the Pri Chadash was roundly rejected by the majority of later authorities, primarily based on two different rationales. The first rationale, articulated by the Chatam Sofer,[8] was that once the rabbis decreed that Chalav Akum was prohibited, it became a “davar hane’esar be’minyan” – a rabbinic decree that remains in effect until rescinded by another rabbinical court, even if the original reason for the prohibition is no longer in effect.[9] In this sense, the Chatam Sofer effectively equated the rabbinic prohibition regarding non-Jewish produced milk to the rabbinic prohibition regarding non-Jewish produced cheese (Gevinat Akum) concerning which the Rambam quoted the Geonim as having ruled that irrespective of the applicability of the original reason for such decree, the prohibition (absent Jewish supervision or participation)[10] remains in effect.[11] The second rationale, advanced by the Chochmat Adam,[12] is that the Talmudic passage requiring a Jewish watchperson even when there are no non-kosher animals in the farm actually proves the opposite of the Pri Chadash’s deduction – namely, that supervision is required to address even the most infinitesimal of concerns, including the far-fetched concern that without supervision a farmer might sneak in non-kosher milk to the farm even when there are no non-kosher milking animals in the entire city.
Perhaps the most interesting rejection of the opinion of the Pri Chadash was expressed by the Aruch Hashulchan[13] who, after having cited the opinion of the Pri Chadash in the name of “one of the giants among the Acharonim” (but without mentioning him by name), proceeded to recount a story regarding a wealthy merchant, from a town in which the Aruch Hashulchan briefly served as the Rabbi, who used to travel frequently. This merchant, in the course of his travels, became enamored of a certain inn where he and his cronies would be served a special hot milk drink every morning. On one occasion, he inquired of the non-Jewish innkeeper regarding his recipe for this delicious “cappuccino” type beverage. The innkeeper proudly responded that he would travel to the local meat market and purchase animal brains which he then cooked together with the milk in order to concoct this tasty drink. At this point, the Jewish merchant cried and proclaimed כמה גדולים דברי חכמים – how great are of the words of the sages, and realized the error of his ways in relying upon those opinions that permitted the consumption of Chalav Stam. After describing this powerful anecdote, the Aruch Hashulchan added that he had a tradition from his teachers that the Sages often have additional reasons beyond that which is stated in the talmudic texts as to why they chose to forbid a particular item.[14]
However, despite the widespread rejection of the opinion of the Pri Chadash, the reality was that in the United States many observant Jews regularly consumed Chalav Stam. In the 1950s, Rabbi Moshe Feinstein penned a groundbreaking responsum in the Igrot Moshe on this subject,[15] in which he argued that there was room for leniency even without relying upon the opinion of the Pri Chadash. Rabbi Feinstein’s argument was that the same way that it is sufficient according to the Talmud if the Jewish watchperson sits outside the farm as long as the gentile farmer is fearful (mirsas) that the watchperson might stand up at any moment to watch the milking process, so too in the United States where there are governmental regulations prohibiting the admixture of non-cow milk with cow milk, the gentile farmers are similarly fearful of being caught if they should mix together non-cow milk, in which case they could be fined or even lose their license. Therefore, argued Rabbi Feinstein, there is an “anan sahadi,” the presence of “virtual witnesses,” based on the universal knowledge that the farmers are fearful of violating the law, in the same way that it is considered sufficient supervision according to Jewish law for a Jewish watchperson to sit outside the dairy farm even though the supervisor never actually stands up to watch the milking process.
It should be noted that although Rabbi Feinstein noted that his leniency does not require reliance on the Pri Chadash, he did utilize Pri Chadash type considerations in other responsa. Thus, in response to a questioner who asked why his leniency should be applicable in light of the fact that a milk manufacturer could conspire with his employees to hide the infraction, Rabbi Feinstein answered that due to the tremendous expense of having to bribe all of the employees, it simply would not be worthwhile to violate the statute.[16] Similarly, the Chazon Ish in his writings implied that reliance upon governmental supervision is tantamount to relying upon the opinion of the Pri Chadash.[17]
Although Rabbi Feinstein did add certain caveats to his position, such as that a “ba’al nefesh” (person who is extremely scrupulous in his observance) should nonetheless strive to consume only Chalav Yisroel,[18] and that yeshiva day schools should only serve Chalav Yisroel as a matter of inculcating in young students the message that they should distance themselves from transgressions,[19] he continued to maintain strongly that there was no prohibition for those who wished to consume Chalav Stam. In a separate responsum, he came to the conclusion that although there is scant governmental supervision with respect to the actual farms and that the main supervision is with respect to the milk plants, the requirement for supervision according to Halacha only begins at the moment in which the milk is prepared for Jewish consumption (“ke’she’ba leyad yisroel”), which would be at the milk plant itself.[20]
Despite Rabbi Feinstein’s provisos, he noted that even a “ba’al nefesh” need not adopt a “double stringency” with respect to insisting upon Chalav Yisroel for Jewish cheese production. Since the Talmud indicates that only kosher milk curdles to become cheese, and the Rema[21] writes that it is therefore only a stringency to require Chalav Yisroel milk for the cheese making progress, Rabbi Feinstein ruled that it is certainly not necessary for one to be strict in terms of requiring kosher cheese to be manufactured solely from Chalav Yisroel milk.[22]
Nonetheless, there are many who are stringent to require both milk and cheese to be purely Chalav Yisroel, with Jewish supervision on site.[23] In fact, there are some who argue that in this day and age of increased availability and quality of Chalav Yisroel milk, even Rabbi Feinstein would possibly be of the opinion that it is required of everyone to purchase Chalav Yisroel milk in the United States.[24] However, many kashrus agencies do not work with this assumption and routinely rely upon the lenient ruling of Rabbi Feinstein in certifying milk products that are Chalav Stam.[25]
Based on the strict governmental laws regulating the production of milk and prohibiting the admixture of any non-cow milk into milk products, Rabbi Feinstein’s leniency held sway for many decades. However, in the past several years there has been a major change in terms of the manufacture of milk in the United States. Based on a movement championed by Dr. Millie Hinkle from North Carolina, camel milk has now been introduced to the milk market.[26] Dr. Hinkle and her cohorts have expended significant energies touting the health benefits of camel milk, based on its “powerful, immune-system components” which can “potentially benefit disorders including diabetes and autism.”[27] In fact, a company called “Camel Milk USA” was created under Dr. Hinkle’s leadership, associating camel milk in its promotional materials with a feel-good naturalistic way of approaching and enjoying nature and its myriad benefits.[28]
As a result of the considerable efforts of Dr. Hinkle, several years ago the federal government revised its Grade “A” Pasteurized Milk Ordinance to include camel milk in the definition of milk, broadening its definition to include, in addition to “cattle’s milk,” “goat, water buffalo and other hooved mammal milk.”[29] Given that “milk” now can mean not only milk from kosher animals such as cows and goats, but even milk from “other hooved animals” such as camels, the premise of Rabbi Feinstein’s leniency is clearly brought into question. No longer does it seem to be a crime or offense for a milk manufacturer to mix together camel milk with cow milk and then sell the product on the market as “milk” to the general consumer.
Fortunately, the ability of kashrus agencies to continue to certify Chalav Stam is preserved through a different feature of the federal statute. Although the definition of “milk” was expanded to include camel milk, the statute continues to impose strict labeling requirement upon milk, requiring that any milk product containing milk from an animal other than a cow be conspicuously labeled in terms of the other animal providing the milk.[30] While the language of the statute is somewhat murky in terms of whether the labeling requirement is applicable only to milk products that are derived completely from other animals or even from milk products with an admixture of milk from other animals (which is the case according to the Talmud that triggers the halachic concern in the first place),[31] the Department of Health officials and kashrus field experts emphatically insist that since milk is amongst the most heavily regulated of food products, even the most minute admixture would be subject to the terms of the labeling statute.[32] Thus, the fact the manufacturers would still remain fearful that any admixture not conspicuously labeled could result in penalties and even forfeiture of their license qualifies as sufficient basis to continue to apply Rabbi Feinstein’s leniency with respect to Chalav Stam.
These changes on the ground recently resulted in a legislative quagmire in the State of Illinois. For years, the Illinois Milk Statute (officially, the Grade A Pasteurized Milk and Milk Products Act) had defined milk solely as “the milk of cows or goats and includes skim milk and cream.” However, following the amendment of the federal statute, Department of Health officials in Illinois moved to change the language of the Illinois Milk Statute to be consistent with the federal statute, and thus changed the language to read that “’Milk’ means the milk of cows, goats, sheep, water buffalo, or other hooved mammals and includes skim milk and cream.”
When the Chicago Rabbinical Council, under the watchful eye of its kashrus administrator Rabbi Sholem Fishbane, discovered that the statute had been changed, it feared that the expansion of the definition of “milk” could indeed raise questions regarding the applicability of Rabbi Feinstein’s leniency to Chalav Stam because, at least on a state level, there was no balancing language in the statute that made it clear that it would be a violation to mix together cow milk with camel milk and still sell the product as “milk.” While camel milk is much more difficult and costly to produce, and it would therefore be highly undesirable for a manufacturer to mix together camel milk with cow milk and then sell it as regular milk,[33] such considerations of impracticality would only hold sway according to the opinion of the Pri Chadash, while the goal of most kashrus agencies is to provide certification according to the opinion of Rabbi Feinstein.
Accordingly, the Chicago Rabbinical Council asked this author to argue the case in front of the Illinois legislature in Springfield, Illinois. Initially, the goal was to change the statute back to the original language that would have confined the definition of milk to cow or goat milk, or at least to eliminate the reference to “other hooved animals” in the new legislation.[34] State Senator Ira Silverstein graciously agreed to sponsor the legislation. However, Department of Health officials insisted that it was imperative that the language of the statute track the federal definition of milk in order to ensure that to the degree that it was now permissible to manufacture and sell camel milk, such milk would be subject to the same regulations (such as inspection tests for contaminants) as other milk under the statute. In response to this concern, I requested that language be added to the statute making it clear that milk suppliers needed to comply with the federal labeling requirements, so that kosher certification could be preserved. After a presentation in front of the relevant legislative committee and several rounds of drafts, the language that was ultimately agreed upon states that “’Milk’ means the milk of cows, goats, sheep, water buffalo, or other hooved mammals, provided that it must be labeled in accordance with the current Grade “A” Pasteurized Milk Ordinance as adopted by the United States Public Health Service – Food and Drug Administration, and includes skim milk and cream.”[35]
But that is not the end of the story. The raw (unpasteurized) milk lobby then came upon the scene. It is important to note that the Federal statute requires pasteurization of all milk that is commercially sold in order to safeguard public health. However, in recent years, in addition to the emergence of the camel milk hawkers, there has been a rise of the raw milk lobby consisting of individuals who have petitioned for formal acceptance of the production and sale of unpasteurized milk. A number of states, including Illinois, have passed statutes allowing for the sale of unpasteurized milk, provided that such sales take place on the dairy farms.[36] Unlike with respect to pasteurized milk, there is no federal labeling statute regarding the sale of raw milk. Accordingly, the raw milk advocates in Illinois insisted on inserting language making it clear that the labeling requirements are not applicable to the sale of raw milk. Fortunately, since the milk that is certified by kashrus agencies is pasteurized milk that is sold commercially, the carve-out clause for raw milk does not compromise kosher certification of Chalav Stam. It does, however, limit the applicability of Rabbi Feinstein’s lenient considerations to pasteurized milk alone, since a milk producer on a farm would presumably not be fearful of being caught mixing together raw camel milk with raw cow milk to the extent that unpasteurized milk production for sale on the dairy farms is not yet subject to the same labeling laws pertaining to pasteurized milk.
Although the Rema assumes[37], in accordance with the Talmudic presumption,[38] that non-kosher milk cannot be curdled into cheese, and that therefore milk that is used in the manufacture of cheese does not absolutely need to be Chalav Yisroel, it is noteworthy that there have been numerous efforts to turn camel milk into cheese, some of which have apparently met with success.[39]
In fact the global bioscience company of Chr. Hansen has developed a camel milk coagulant (FAR-M) that produces a variety of cheeses from camel milk.[40] According to recent research, this coagulant can also turn donkey milk into cheese.[41] However, it appears that the vast majority of cheeses produced from camel milk or donkey milk are of the soft cheese or semi-hard cheese variety.[42] The ramifications of these developments will be explored in Section V(C) of this article.
This section shall discuss four important halachic ramifications to the recent changes with respect to the sale of camel milk, production of camel cheese, and the emergence of the raw (unpasteurized) milk lobby:
As detailed in Section III, the introduction of camel milk to the United States milk market illustrates how the leniency of Rabbi Moshe Feinstein with respect to Chalav Stam constantly needs to be re-evaluated based on the facts.
By way of example, it has been noted that certain milk products sold in the United States come from foreign countries which may not have the same amount of supervision as milk production in the United States, or the same amount of law enforcement. As a result, kashrus agencies have become more reluctant to certify milk products from certain other countries such as India where there is evidence that laws are not as strictly enforced and therefore there may not be the requisite amount of “fear”, which was a key requirement of Rabbi Feinstein’s lenient ruling, with respect to the mixture of non-kosher milk with kosher milk.[43]
Similarly, even within the United States, the recent imbroglio involving camel milk illustrates how it cannot be assumed that what was true fifty years ago with respect to milk production in the United States will always remain true. The definition of “milk” has already been expanded beyond cow and goat milk to include milk of other hooved animals such as camels. While the leniency of Rabbi Feinstein remains operative due to strict labeling requirements, it will be necessary to ensure that the labeling requirements remain rigorous, both on a federal and state level, in order to safeguard kosher certification of Chalav Stam in the United States. It is instructive that under the current milk laws, even the labeling requirements only provide requisite supervision with respect to pasteurized milk, but not with respect to the growing sale of unpasteurized milk on the farms, which is not subject to the same labeling requirements. Accordingly, Rabbi Feinstein’s leniency cannot be relied upon at this point in time with respect to the purchase of raw milk in the United States.
In fact, the lack of labeling requirements with respect to unpasteurized milk sold on the dairy farms highlights a different issue, which is that there are limitations with respect to the amount of reliable governmental supervision on the farms themselves. While Rabbi Feinstein ruled that it is sufficient to rely upon factory supervision alone, certain later authorities have questioned the basis of that conclusion.[44] Some experts in the kashrus field have argued that the point is moot because nowadays there is more rigorous supervision by the government on the farm level.[45] However, to the extent that new statutes may not provide an incentive against mixing kosher milk and non-kosher milk for the production of unpasteurized milk sold on the farms, it is now less clear that the governmental supervision on the farms serves to assure that the kosher milk and non-kosher milk will be kept completely separate. The main reliance may still have to be upon the compliance of the milk plants with respect to the labeling requirements of the pasteurized milk ordinance, which appears to be a much less supervised process.[46] Thus, we are left at this point with simply the “anan sahadi” understanding that despite the lack of either Jewish or governmental supervision, the milk manufacturers can be trusted not to mix together non-kosher with kosher milk without conspicuous labeling of such admixture based on the fear of penalties and other potentially dire consequences, despite the lack of on-site supervision. It will therefore be imperative to monitor the trustworthiness of the supervision process in the years ahead.
Perhaps paradoxically, the advance in camel milk production may actually buttress applicability of the leniency of the Pri Chadash, to the extent that reliance on his opinion may continue to serve as a consideration for certification of Chalav Stam.[47]
According to the Beit Meir,[48] the Pri Chadash only intended to be lenient in a situation where there is actually a market for non-kosher milk. If there would be no such market, in the event that a farmer or milk supplier had some non-kosher milk lying around that would otherwise go to waste, there would be no incentive for them to refrain from them mixing the non-kosher milk with the kosher milk. Only if there is the possibility of selling the non-kosher milk would the Pri Chadash maintain that one can rely upon the fact that it is impractical for the gentile to mix the more expensive non-kosher milk with the less expensive cow milk.
Accordingly, in the advent of Camel Milk USA and the official inclusion of camel milk as a marketable milk product pursuant to the revised federal statute, there may be more reason to apply the leniency of the Pri Chadash to milk production in the United States. While the rationale that there are no non-kosher milking animals in the city or the land is not applicable (and may have never been applicable especially given the hog industry in the country)[49] the rationale of the Pri Chadash that it simply would not be sensible for a gentile milk manufacturer to mix kosher milk together with camel milk because of the greater economic cost (and value) of camel milk has become surprisingly more pertinent.
With the introduction of cheese-making technology, including the FAR-M coagulant on the market, which enables camel milk and perhaps even donkey milk to be curdled into cheese, it may be appropriate to re-evaluate the premise that non-kosher milk does not have the capacity to turn into cheese. While there are certain fact-based statements of Chazal which are intended to serve as eternal truths,[50] it is not clear that the Talmudic statement regarding the impossibility of non-kosher milk coagulating into cheese falls into that category. Rather, it may be regarded as a true statement at the time – that since in the time of the Talmud, only kosher milk could be turned into cheese, this was a valid consideration in terms of the permissibility of utilizing non Chalav Yisroel for purposes of the cheese-making process. However, in light of changes in technology that now enables non-kosher milk to be turned into cheese, it behooves us to take this reality into consideration in connection with contemporary halakhic decision-making.[51]
Of course, continued reliance on Rabbe Moshe Feinstein’s leniency with respect to Chalav Stam, based on the labeling requirements that are in effect, would enable kosher cheese manufacturers to utilize Chalav Stam in the production of kosher cheese (provided, of course, that a Jew was involved in the cheese-making process, as required by Halacha). However, those who have chosen to be “ba’alei nefesh” who are stringent with respect to purchasing only Chalav Yisroel but more lenient with respect to purchasing cheese made from Chalav Stam, based on Rabbi Feinstein’s ruling that it is not necessary even for “ba’alei nefesh” to be “doubly-stringent” since fundamentally the Rema accepts the premise that non-kosher milk cannot be made into cheese, may now have reason to re-consider that leniency.[52] Accordingly, those who do not rely on the leniency with respect to Chalav Stam may, at first blush, have more reason today to be stringent, even according to Rabbi Feinstein, to purchase cheese which is made solely from Chalav Yisroel.
However, it would seem that since the cheese that is produced from camel milk is primarily in the form of soft cheese, there would still be insufficient reason to adopt greater stringency in this case. With respect to soft cheese, Rabbi Feinstein was in any event inclined towards the position (adopted by Rabbi Yosef Eliyahu Henkin and others) that soft cheese is not subject to the strictures of Gevinat Yisroel since there is no need for the use of an agent to enable the milk to congeal to become soft cheese,[53] and therefore his comment regarding leniency in the context of Gevinat Yisroel was primarily directed towards hard cheese (although it should be noted that this statement was made in the context of whether or not there is a need for Gevinat Yisroel supervision, rather than in the context of the stringency against using Chalav Stam in the production of cheese altogether). Additionally, the statement in the Talmud that non-kosher milk does not curdle into cheese is understood by certain rabbinic authorities as referring specifically to hard cheese.[54] Finally, and perhaps most importantly, the standard enzymes that are used to produce cheese cannot be used to produce cheese from camels, and thus in the standard cheese making process it still remains a valid presumption that the milk is from a kosher animal unless it is known that the specialized rennet that has been manufactured specifically for the coagulation of camel cheese is being utilized. Thus, until it has been demonstrated that there is a standard cheese-making enzyme that can produce hard cheese from camel milk, it would appear that Rabbi Feinstein’s leniency for a ba’al nefesh in connection with cheese made from Chalav Stam should remain in effect.[55]
The milk pasteurization process involves the heating of the milk in order to destroy harmful bacteria. This heating generally takes place without the participation of a Jew in the process. Therefore, drinking pasteurized milk might be prohibited based on “bishul akum” – the interdiction against consuming foods cooked by a non-Jew.
The reason that this is not generally viewed as a concern[56] is because, as the Rambam writes,[57] milk can in fact be consumed raw, and the prohibition of bishul akum is inapplicable to foods that are “ne’echal chai” – edible in their raw state.[58] However, the Minchat Yitzchak[59] writes that nowadays when raw milk is considered to be harmful (which is the reason why all commercially sold milk must be pasteurized), it is questionable whether it is proper to rely upon this rationale to permit the consumption of pasteurized milk. Therefore, he provides a combination of other reasons to allow leniency: (a) in the process of pasteurization, the milk is actually steamed rather than cooked, and according to some opinions, the steaming process does not implicate bishul akum concerns[60]; (b) since pasteurization is performed at the milk plants, there is room to rely upon the opinion of the Maharit Zahalon[61] that factory-produced foods are not included in the prohibition of bishul akum. Nevertheless, the Minchat Yitzchak concludes that since both of these rationales are subject to dispute, it is optimal not to rely on the lenient views, and to strive to purchase milk in which Jews have participated in the pasteurization process.
In this sense, the emergence of the raw milk lobby has actually reinforced the Rambam’s leniency. Now that it has become more prevalent for people to drink raw milk, and even for state statutes to specifically provide for the manufacture and sale of raw milk on dairy farms,[62] there is a much stronger argument to maintain that milk is indeed in the category of “ne’echal chai,” fit to be consumed in its raw and unpasteurized state. Thus, although the raw milk enthusiasts have created a challenge with respect to the kashrus of the milking process itself due to the lack of federal labeling requirements with respect to the production of raw milk from kosher and non-kosher animals, they have simultaneously bolstered the ability of kashrus agencies to certify the pasteurization process as kosher.[63]
Halacha is never stagnant. Although halachic principles are timeless, changes in technology and commercial practices constantly affect the application of Halacha in the real world. The case of milk production is a paradigmatic example of this phenomenon. Due to the rise of the production of camel milk and raw milk, as well as the technologies that now enable non-kosher milk to be curdled into cheese, many halachic presumptions and applications need to be re-visited.
Lenient views relating to milk production, such as those found in the Pri Chadash and Igrot Moshe, as well as stringent views relating to pasteurization found in the Minchat Yitzchak, are all dependent upon existing realities that require regular re-evaluation. Whether in the context of vigilance in connection with the changing language of milk legislation, such as in connection with the recent legislative revisions made to the Illinois Milk Statute, or with respect to recognizing difference between law enforcement of milk labeling requirements in different countries, the role of contemporary poskim and kashrus agencies is both dynamic and demanding. In this article we have sought to identify a number of halakhic applications towards changes in milk production, and in the process, to stimulate further discussion, analysis and investigation.
[1] Avodah Zarah 35b.
[2] Bechorot 6b. This article does not address the issue of cows which are Trayfot, whose milk would be similarly non-kosher. For a detailed analysis of that issue as it relates to the growing number of cows which have received a punctured abomasum due to surgery, see Rabbi Michoel Zylberman, The Kashrut of Commercially Sold Milk, Journal of Halacha and Contemporary Society 54:93-113 (2007).
[3] Avodah Zarah ibid.
[4] See Shach, Yoreh Deah 115:4.
[5] Avodah Zarah 39b. See Yoreh Deah 115:1. The Rema notes that the Jewish watchperson should also observe the beginning of the milking process and check the container that is used for the milking as well.
[6] Technically, “Chalav Yisroel” is shorthand for “Chalav” (milk) that is watched by a “Yisroel” (Jew), based on the language of the Mishna in Avodah Zarah 39b: ואלו מותרין באכילה חלב שחלבו עובד כוכבים וישראל רואהו. It does not mean “Chalav” that is milked, owned or manufactured by a “Yisroel”.
[7] Pri Chadash, Yoreh Deah, 115:6.
[8] Shu”t Chatam Sofer, Yoreh Deah, responsum 107.
[9] See Beitzah 5a, Rambam, Mamrim 2:2.
[10] See Rema, Yoreh Deah 115:2 (watching the cheese-making is sufficient), and Shach s.k. 20 (requiring that the Jew physically add the rennet in the cheese-making process unless the cheese belongs to a Jew).
[11] Rambam, Ma’achalot Asurot 3:14; the Maggid Mishnah (ad loc.) explains the reason that the prohibition remains in effect regardless of circumstances is because gevinat akum was instituted by the Rabbis as a davar she’be’minyan.
[12] Yoreh Deah, Klal 67, paragraph 1.
[13] Aruch Hashulchan, Yoreh Deah 115:4-6.
[14] For good measure, the Aruch Hashulchan then appended a final comment noting that he heard that in “America” there are multitudes of people who drink pig milk, because of the abundance of swine in that country.
[15] Igrot Moshe, Yoreh Deah 1:47.
[16] Igrot Moshe, Yoreh Deah 1:48. It is instructive that in explaining his conclusion, Rabbi Feinstein cited the same Talmudic passage from Avodah Zarah 34b (with respect to muryas, a fish brine prohibited based on the concern that wine might be mixed in by the non-Jewish merchants, but permitted by Chazal in places where wine was expensive and it was therefore impractical for the merchants to add wine) that is cited by the Pri Chadash to justify his leniency.
[17] Chazon Ish, Yoreh Deah 41:4.
[18] Igrot Moshe, Yoreh Deah 1:47, s.v. “Ve’Lachen”.
[19] Igrot Moshe, Yoreh Deah 2:35.
[20] Igrot Moshe, Yoreh Deah 1:49.
[21] Yoreh Deah 115:2.
[22] Igrot Moshe, Yoreh Deah 3:16. Rabbi Feinstein was referring to hard cheese. With respect to soft cheese, it was his opinion that fundamentally it is not included in the prohibition of Gevinat Akum altogether (similar to the more lenient stance in Halacha towards butter, as set forth in Shulchan Aruch Y”D 115:3) since it does not require the introduction of rennet (which may not be kosher) in order to curdle, although he stopped short of issuing an unequivocal lenient ruling on this subject. See Igrot Moshe, Yoreh Deah 2:48. Rabbi Gedalia Dov Schwartz shlit”a informed this author that Rabbi Yosef Eliyahu Henkin was even more conclusively lenient regarding soft cheese. Others, however, are of the opinion that Gevinat Akum applies even to soft cheeses. See, e.g., the unequivocal language of the Aruch Hashulchan Y”D 115:16 that even cheeses that do not require rennet are prohibited. It should be noted, however, that the question as to whether Chalav Yisroel must be utilized for cheese production (or whether there is an exemption since non-kosher milk does not curdle) is separate from the question as to whether the cheese production itself must be Gevinat Yisroel – i.e., involve Jewish participation in the process.
[23] See Chelkat Binyamin, Yoreh Deah 115:16. In a modern day version of the Aruch Hashulchan’s nameless citation of the opinion of the Pri Chadash, the author cites the opinion of Rabbi Feinstein in the main text of his work as “Yesh Mi She’Omer” (“there is someone who says”), although the Igrot Moshe is referenced explicitly in his footnotes.
[24] See Halakhically Speaking – Cholov Stam and Cholov Yisroel, compiled by Rabbi Moishe Dovid Lebovitz, note 32, in the name of Rabbi Yisroel Belsky. The Chelkat Binyanim (Tzionim, note 55) also cites a responsum of Rabbi Feinstein that is not published in the Igrot Moshe, but rather appeared in the book Pitchei Halacha, in which he seems to indicate that in places where Chalav Yisroel is readily available at prices that are not significantly higher than regular milk, it is not appropriate for anyone to exercise leniency. It has also been noted that the quality of Chalav Yisroel milk seems to have improved significantly in recent years. At least in those locations where Chalav Yisroel has become more competitive in terms of price, availability and quality, there may be more of a basis for overall stringency even according to Rabbi Feinstein’s viewpoint. However, the fact is that Rabbi Feinstein explicitly wrote that even his stringency relating to “ba’alei nefesh” was only applicable in locations where Cholov Yisroel could be obtained בלא טירחא ובלא חלוק בהשיוי (if there is no greater hassle or price difference), implying that those who are not “ba’alei nefesh” do not need to be strict even under such circumstances. See Igrot Moshe Y”D 3:16, s.v. “Ve’zeh”.
[25] Another rationale for leniency in connection with Chalav Stam cited in the name of Rabbi Yosef Dov Soloveitchik is that the prohibition of Chalav Akum was only directed towards situations where the milking is performed by human beings, as opposed to nowadays when milking is performed by machines. See Rabbi Chaim Jachter, Gray Matter, Volume 3, pages 186, 191-192 (Kol Torah Publications, 2008). However, the author is unaware of any major kashrus organizations that rely on this rationale in certifying Chalav Stam.
[26] See the article “Getting Over the Hump” in Mishpacha Magazine, May 13, 2015, pp. 28-29. According to the Wikipedia entry on “camel milk,” there are approximately 5,000 imported camels in the United States.
[27] Jan Millehan, “Health Benefits of Camel Milk,” LiveStrong.com, April 16, 2015
[28] See www.camelmilkusa.com.
[29] See Section 4, paragraph 3 of the Grade “A” Pasteurized Milk Ordinance, and the Definition of “Hooved Mammals’ Milk” in Section 1 of the Ordinance. Until 2009 it was a felony to sell camel milk in the United States. See the article describing Dr. Hinkle’s successful efforts at changing the law at www.camelmilkusa.com.
[30] See Ibid.
[31] The exact language of the statute states, in relevant part, “All bottles, containers and packages, containing milk or milk products, except milk tank trucks, storage tanks and cans of raw milk from individual dairy farms, shall be conspicuously marked with: …3. The common name of the hooved mammal producing the milk shall precede the name of the milk or milk product when the product is or is made from other than cattle’s milk. As an example, “Goat”, “Sheep”, “Water Buffalo”, or “Other Hooved Mammal” milk or milk products respectively.”
[32] Verbal communications with Illinois Department of Health officials and with Rabbi Avrohom Gordimer.
[33] See Rabbi Avrohom Gordimer, “Milk from non-Kosher Species,” in Torah Musings, February 15, 2015 (available on line at http://www.torahmusings.com/2015/-2/milk-from-non-kosher-species/) noting that camel milk sells at $80-$130 on the Western market.
[34] The insertion of water buffalo does not appear to raise a similar problem since it is presumed to be a kosher animal. See Yoreh Deah 28:4.
[35] As of May 31, 2015, the amendment (SB 1228) had passed both houses of the Illinois General Assembly. On June 29, 2015 it was sent to the Governor for final approval, and it is currently awaiting final approval by the Governor.
[36] See Section 8 of the Illinois Milk Statute: “After the effective date of this Act, no person shall sell or distribute, offer to sell or distribute any milk or milk product for human use or consumption unless such milk or milk product has been pasteurized and has been produced and processed in accordance with rules and regulations promulgated by the Department…The pasteurization requirement of this Section shall not be applicable to milk produced in accordance with Department rules and regulations if sold or distributed on the premises of the dairy farm.”
[37] Yoreh Deah 115:2.
[38] Avodah Zarah 35b.
[39] See The Technology of Making Cheese from Camel Milk (Camelus Dromedarius) by J.-P. Ramet (Rome, 2001).
[40] See “Chr. Hansen and Kenyan Enterprise Develop Camel Cheese Recipes,” February 17, 2014, www.chr-hansen.com/news-media.
[41] See “FAR-M camel milk coagulant clots donkey milk too, Chr Hansen finds,” by Mark Astley, April 2, 2015, dairy reporter.com free newsletter.
[42] See supra n. 39 at 28-31.
[43] A special AKO (Association of Kashrus Organizations) meeting was held in June 2013 to discuss the applicability of Rabbi Feinstein’s leniency with respect to milk from other countries. As a result of continued research in this area, a kashrus administrator at a major kashrus organization recently informed me (verbal communication) that his agency has adopted a stricter policy towards certification of milk from India.
[44] See, e.g., Chelkat Binyamin Y”D 115, Tzionim n.54.
[45] See Rabbi Gordimer, “Rav Moshe Zt’l’s Heter of Cholov Stam Revisited,” Kashrut.Com, Copyright 2011 by Orthodox Union, Reprinted from Daf HaKashrus.
[46] As Rabbi Gordimer notes in his article, the main governmental inspection at the dairy plants is with respect to “bacteria count and the presence of antibiotics.”
[47] See supra notes 16-17 and accompanying text.
[48] Yoreh Deah 115, s.v. “Pri Chadash”.
[49] See the anecdotal comment of the Aruch Hashulchan supra in note 14. However, the prevalence of pigs in the United States does not in reality seem to present a fatal impediment to the Pri Chadash’s leniency given the reality that pig milk is extremely difficult to produce and is not viewed as desirable for human consumption. See, e.g., https://en.wikipedia.org/wiki/Pig_milk.
[50] For example, the Rambam, Shechita 10:12-13 famously noted that the 18 conditions of Trayfot listed by Chazal, which are premised on the expectation that the animal will die within the year, remain the only physiological conditions that give rise to the animal being treated as a Trayfeh, despite the fact that according to modern science some of these conditions no longer lead to death within a year and other non-listed conditions do lead to imminent death.
[51] There are other halachot, for example, where halachic authorities have ruled that they are subject to modification due to changes in nature. See Igrot Moshe, Y”D 2:4 with respect to vestot relating to pregnant and nursing women in the modern age where unlike at the time of the Talmud, pregnant women tend to stop seeing blood immediately upon becoming pregnant (and not only after three months of pregnancy) and nursing women tend to see blood even prior to the passage of twenty four months from childbirth.
[52] In fact, this concern was already noted by R. Chaim ben Atar (also known as the Or Hachaim Hakadosh) in the Pri Toar (Yoreh Deah 115:8) who reported that already in his time (early 1700s) scientists had figured out how to mix cow milk with camel milk in order to produce butter. He writes that the Rabbis in the time of the Talmud simply could not have contemplated that this type of technology would ever be developed. The Pri Toar concludes that any such product would have a yellow complexion that would be easily discernible, and thus would not cause other butter to be prohibited. However, see Chaim She’al (1:43) who expresses discomfort with the Pri Toar’s assumption that there were changes in cheese-making capabilities after the time of the Talmud.
[53] See supra note 20.
[54] See, e.g., Radvaz 6:2291, but see Chaim She’al ibid. See also Ritva, Avoda Zara 35b s.v. Mah She-amru (asserting that the Rabbis did not mean to say that non-kosher milk is incapable of curdling altogether, but rather that most of the milk would not curdle and would congeal to become a whey product). The author thanks Rabbi Dovid Cohen for identifying helpful source material for this part of the discussion.
[55] Rabbi Avrohom Gordimer (communication to the author) has pointed out that there may be even more room to be lenient with respect to cheese produced from unpasteurized milk, because federal regulations continue to require that cheese from unpasteurized milk be produced only from cow, goat or sheep milk.
[56] See, e.g., Chelkat Binyamin, Yoreh Deah 113:7.
[57] Rambam, Ma’achalos Asurot 17:14.
[58] See Yoreh Deah 113:1.
[59] Minchot Yitzchok 10:67. See Rabbi Lebovitz’s article supra n.24, at pages 9-10.
[60] See Darchei Teshuva, Yoreh Deah 113:16. In reality, as Rabbi Dovid Cohen has noted, the steam is generally only indirectly responsible for the heating process, so other than the Minchat Yitzchak’s second additional consideration for leniency, there is a genuine need to rely upon the notion that milk is edible in its raw state.
[61] Cited by Birkei Yosef, Yoreh Deah 112:9. A similar reliance upon this combination of opinions can be found in Yabia Omer Y”D 5:9 in connection with the kosher certification of sardines which are steamed in a factory setting.
[62] The recognition by a state statute of a food as edible would seem to qualify it as a food which is “considered” as edible in its raw state from the standpoint of the majority of people in that region, which is the required standard for defining something as “ne’echal chai” (see, e.g., Chelkat Binyamin 113:5) even if most people in that region do not actually consume the food in its raw state. See Birkei Yosef 113:1 (s.v. “VeRaiti”), and Shevet HaLevi 5:93 citing the Ritva, Avodah Zarah 38a (s.v. Kol HaNe’echal) that it is sufficient that a food be capable of raw consumption even if most people do not actually consume the food in its raw state.
[63] Arguably, as Rabbi Dovid Cohen has suggested, the fact that some cheeses (such as certain blue cheeses and most English cheddars) are made from unpasteurized milk also supports the characterization of milk as “ne’echal chai.” However, it is unclear if the ability of raw milk to become edible through being converted into cheese would be sufficient to qualify it as edible in its raw state. See Darchei Teshuva 113:4; Chelkat Binyamin to Y”D 113:12. s.v. “she-malchan”.