Question #1: Civets?

Is civet coffee kosher?

Question #2: Elephants?

Is Black Ivory coffee kosher?

Question #3: Tza’ar ba’alei chayim

Is it permitted to catch these species in order to use them for coffee production?

Question #4: Birds?

What is the difference between “bird coffee” and “bird friendly coffee?”

Introduction

Among the non-kosher smaller mammals that Noach brought into his teivah was a southeast Asian creature called a civet that has been described as looking like a cross between a cat and a mongoose. Our article will discuss the kashrus issues involved in several new varieties of gourmet coffee that involve civets, elephants and other non-kosher animals.

Foreword

Hailed as “the most exotic beverage on the planet,” civet coffee, also known as kopi luwak, is a delicacy, a unique coffee made from coffee cherries (also called “berries”) that pass through the gut of the civet before being brewed. It is described as smooth and chocolaty, with a subtle taste of caramel. One of the most pronounced characteristics of kopi luwak beans is their natural lack of acid bitterness. They have been discovered to be low in both tannin and acid. Furthermore, it is claimed that they contain a plethora of other health advantages not found in other coffees.

Kopi is the word for “coffee” and luwak is the name for the civet in the local Indonesian language where this “delicacy” was discovered.

The civet loves coffee berries, but cannot digest the beans, which emerge whole. When the civets eat ripe coffee cherries, the beans pass through their digestive system, undergoing a natural fermentation process. The beans are collected, cleaned, dried, and roasted to produce the final coffee. Yes, you are very correct, it sounds gross. And there are several halachic issues that require addressing.

Black Ivory Coffee

Once mankind discovered that predigesting whole coffee beans might tenderize the bitterness in coffee and add flavor profiles, people experimented with using the digestive systems of other animals. “Black Ivory Coffee” was developed by a Canadian businessman in 2012 and involves coffee beans refined by elephants. Perhaps one advantage to this brew over kopi luwak is that elephants are readily available in captivity, both in Africa and in India, which makes it easier to produce and harvest the product “in bulk,” and, as we will soon see, might resolve one of the halachic problems involved in kopi luwak. The founder of the company that produces this specialty brew contends that the fermentation in the elephant’s gut strips the coffee bean of its bitterness and adds notes of chocolate, cacao nibs, light peach, malt, tamarind, spice and black tea, flavored in part by whatever else is in the herbivore’s stomach. The company producing “Black Ivory Coffee” also claims that their product has major health benefits because the coffee is rich in antioxidants and minerals.

Potentially, different varieties of this product can be made by varying the diet of the elephants. At one point, there might be an “Apricot Flavored Black Ivory Coffee,” one with “Natural Vanilla Flavor,” a “cashew infused” selection, “lemon and mint,” perhaps even an “esrog-hadas-date” flavor in honor of Sukkos — as many varieties as at Baskin-Robbins. Can’t you just see the wide selection available in the Pesach aisle of your upscale local kosher supermarket? The choices are endless – but is the coffee kosher?

Bird coffee

Another type of specialty beverage is made from coffee cherries eaten by a variety of wild bird, the jacu. Jacu is the Portuguese name for one variety of birds, usually called guan, that are large tree-dwelling birds predominantly of tropical South American rainforests. It is claimed that this beverage is sweet, full-bodied, and smooth, with unique tasting notes of cinnamon, maple syrup, aniseed, and even hints of brown bread.

The history of kopi luwak

First imported from Indonesia in the 1990s, kopi luwak aficionados contend that acids and enzymes in the civet’s gut alter the protein content of the beans. It is also possible that the flavor is influenced by the civets’ preference for certain types of berries over others. As we will soon see, this factor may vary significantly by the type of kopi luwak drunk. They are roasted very lightly to preserve their complex flavors.

It is important to note that not everyone is convinced that the differences in flavor, if they even exist, are an improvement. It hasn’t fared well in expert tasting tests either. In the words of one coffee industry expert, kopi luwak is “a gimmick, a fairy tale fabricated to sell gullible consumers bad coffee at extraordinarily inflated prices.”

The cost of wild kopi luwak fluctuates between $20 and $100 per cup. To increase availability and bring down the price of this specialty beverage, an industry of farmed kopi luwak has developed in which the civets have been trapped, bred and fed coffee (and, presumably, other nutrients, since man, civets and even students in finals week cannot live on coffee alone). For those who want to buy kopi luwak by the bag (in bulk, no pun intended), wild kopi luwak costs significantly more, since it tastes better and is an ethical alternative to farmed kopi luwak.

Of course, when there is money to be made, there will be scandals. A BBC investigation discovered that “wild” kopi luwak being sold in Britain was in fact produced by civets being held in tiny cages in Sumatra, one of the larger islands of Indonesia. The gentleman who first imported kopi luwak to the West now regrets his involvement in what he describes as a “hideous trade.”

Our article is not a review of coffee variants, even if caffeine is the most common addicting substance in the western world. Our articles are about halacha, and we will discuss several halachic issues to determine whether this delicacy is kosher or not.

Potential halachic issues

What halachic issues must be clarified to determine whether these coffees are kosher? There are several:

1. Yotzei min hatamei

Since civets and elephants have neither split hooves nor chew their cud, they are not kosher. Do the enzymes and other digestive processes that the coffee bean absorbs in their guts render it yotzei min hatamei, something emanating from a non-kosher animal, like the milk or eggs of non-kosher species?

Similarly, we will have the same question regarding the jacu specialty. Since there is no

mesorah that the jacu or guan is a kosher bird, we must assume that it is not. In other words, since elephant and civet milk and jacu eggs are not kosher, must we assume that the coffee beans that they have digested are also not kosher?

2. Bal teshaktsu

Based on a pasuk (Vayikra 20:25), the Gemara prohibits eating something that people find repulsive (Shabbos 90b; Makkos 16b).

3. Tza’ar ba’alei chayim

Is there a halachic concern of tza’ar ba’alei chayim because an animal that naturally roams is being kept in small boxes and fed an artificial diet?

We will discuss these issues one at a time.

Yotzei min hatamei

According to all opinions, honey produced by bees is kosher, notwithstanding that it is very obvious that the bees do something to the nectar that they intake to make it into honey. The tanna’im dispute why is bee honey kosher.

The majority opinion, that of the Chachamim, is that the processing of nectar into honey is not significant enough to be considered yotzei min hatamei. Borrowing terminology of the Gemara, we could describe this as “sugar in, sugar out.” A minority opinion, that of Rabbi Yaakov, rules that honey of bees is kosher because of a gezeiras hakasuv, a halachic derivation from a verse, and this will include only the honey of bees (Bechoros 7b, as explained by Rabbeinu Tam in Sefer Hayashar #529-531, and many others).

The Gemara (Bechoros 7b) teaches that there is a practical halachic difference resulting from the dispute between these tanna’im: What is the kashrus status of honey-like substances that come from insects other than bees? According to the Chachamim, honey manufactured by wasps or the honeydew made by aphids is kosher. Notwithstanding that there are changes because of the input of these insects, the resultant product remains kosher. This is also the opinion of the Mishnah (Machshirim 6:4), which quotes no disputing view.

How do we rule?

The Rambam and Rabbeinu Tam rule according to the Mishnah and the majority opinion among the tanna’im that wasp honey and aphid honeydew are fully kosher. Because of a Talmudic inference (in Bechoros 7b), the Ramban and the Rosh (in their respective halachic compendia in Bechoros) rule like Rabbi Yaakov that these products are non-kosher. The Shulchan Aruch cites both opinions, but considers the lenient opinion to be the primary one (Yoreh Deah 81:9).

Let us now compare the coffee that has passed through the digestive tract of a civet, elephant or bird to wasp honey or aphid honeydew. According to the Chachamim, this coffee should certainly be permitted since the change rendered by the digestion of these creatures is far less noticeable than the change that wasps and aphids (or bees for that matter) do to nectar to make it honey. Honey neither looks nor tastes like nectar, nor does it have the same viscosity, but no visible difference appears in coffee beans after their passing through the digestive tract of these non-kosher animals. The differences in taste are extremely subtle and should be included under the heter of the Chachamim (see also Shu”t Igros Moshe, Yoreh Deah 2:24).

The question is whether Rabbi Yaakov agrees. In his opinion, honey is considered a different substance from the nectar that was ingested, and therefore only bee honey is kosher. However, there is a very strong logic to argue that even Rabbi Yaakov permits kopi luwak, Black Ivory and jacu coffee since the coffee bean appears unchanged after its digestion.

There is another reason to permit these specialty coffees even according to Rabbi Yaakov. The Mishnah (Bechoros 7b) teaches that when a non-kosher fish swallows a kosher fish, the kosher fish remains kosher, and the Gemara (Bechoros 7b) says this is true even after it has passed through the entire digestive tract of the non-kosher fish. Many rishonim contend that something that passes through whole, or that remains hard when it is finished being digested (see Menachos 69b; Rash, Ohalos 11:7; Tosafos, Bechoros 7b), is considered no different halachically from what it was prior to digestion. According to this approach, Rabbi Yaakov would permit these varieties of coffee.

Bal teshaktsu

Based on a pasuk (Vayikra 20:25), the Gemara prohibits eating something that people consider repulsive (Shabbos 90b; Makkos 16b). This prohibition is called bal teshaktsu. Our question is whether I may eat something that I do not consider vile, but other people do. The Pri Chadash (Yoreh Deah 84:3) rallies much proof that individuals who are not revolted by a particular food may eat it, even when most people are. This author is unaware of any other halachic authorities who discuss this question. Although the Be’er Heiteiv refers to this Pri Chadash, he does not discuss or analyze it. According to this Pri Chadash, someone not disgusted by the past history of this expensive brew in front of him may drink it. There is also no reason to mention the background of the beverage to someone who is oblivious to its history.

There is other evidence that these beverages should not be prohibited because of bal teshaktsu. While discussing the rules of food being susceptible to tumah, the Tosefta (Taharos Chapter 9) and the Gemara (Menachos 69a) rule that wheat and barley kernels removed from cattle, donkey or camel manure are considered food if an individual decides that he would eat them. This implies that there is no prohibition of bal teshaktsu.

Tza’ar ba’alei chayim

At this point, I refer to the third of our opening questions: Is it permitted to catch civets in order to use them for coffee production?

The question relates probably only to farmed kopi luwak, since the captured civets are now caged and this is a species that usually lives in the wild.

One may use an animal to service people, even when doing so inflicts pain on the animal (Terumas Hadeshen 2:105; Rema, Even Ha’ezer 5:14; these authorities base their rulings on Talmudic sources — see Shabbos 154b, Avodah Zarah 13b). The rationale provided is that animals and the rest of creation were created in order to service mankind (Terumas Hadeshen, based on Kiddushin 82a).

On the other hand, all authorities prohibit causing animals to suffer unnecessarily, such as to strike an animal out of anger or frustration (Sefer Chassidim #666). If an animal that is normally well-behaved and responsive to its vocation refuses to work one day, one should not beat it to get it to cooperate – rather, one should consider the possibility that it might be ill (Sefer Chassidim #668). Animals do get sick and, as we see from the story of Bilaam, they may have difficulty expressing themselves.

More specifically, it is prohibited to raise livestock in an inhumane way, such as by feeding them an unusual diet or depriving them of proper ventilation or exercise. However, although farmers may violate tza’ar ba’alei chayim when they raise their livestock, I am unaware of any authority who prohibits using a product that resulted from tza’ar ba’alei chayim. The prohibition is on the one who raises the livestock. In practice, many animals that we shecht and eat are raised in less than optimal circumstances, yet poskim have not ruled that we should avoid using such animals, or that we are required to inspect how these animals are handled prior to our purchasing meat that comes from them.

One can ask this question relative to many modern techniques of fur and fish farming and animals used for research. The question is whether the techniques used are indispensable for mankind to gain the benefits. For example, research testing on animals to see whether beneficial drugs are safe for mankind is certainly permitted, provided that no unnecessary pain is inflicted upon the animals. This is far less obvious when we are researching the safety of cosmetic items, particularly when others are readily available. In the case of kopi luwak, does this coffee really taste so much better that there is a necessity to keep civets in cages? And, why can’t those who really want this specific brew purchase wild kopi luwak.

I will also note that civets are farmed already for use as a flavor enhancer in food production. They are one of the reasons why products containing “natural flavors” must have a proper kosher certification. I am unaware of the conditions in which civets are raised for these purposes, but these are not within the parameters of this article.

Bird friendly

At this point, let us examine the last of our opening questions:

What is the difference between “bird coffee” and “bird friendly coffee?”

Bird Friendly® coffee has nothing to do with jacus or the digestion of coffee beans by a mammal. Coffee growing is a massive industry and requires tropical and subtropical areas for production. Unfortunately, coffee farms usually destroy natural habitat that was previously used by birds, either migratory or regional. Bird Friendly® farms provide a shade cover for habitat for both migratory and resident birds in their tropical landscapes. The term Bird Friendly® is a registered trademark of the Smithsonian Institute used to endorse farmers who qualify for its certification and research program.

Conclusion

Shelomoh Hamelech teaches (in Mishlei 12:10) Rachamei re’sha’im achzari,the compassion of the evil is cruelty. What does this mean, particularly since the context of the pasuk implies that it is discussing the care one takes of his animals? The example chosen by the Sefer Chassidim (#669) is of an evil person who feeds his animal well, but then expects it to perform beyond its capabilities – after all, he treated it so nicely. When the owner’s expectations are not realized, he beats the animal mercilessly. It turns out that his initial compassion causes him to be cruel.

To quote the Tosefta (Bava Kama, end of Chapter 9): Rabbi Yehudah said in the name of Rabban Gamliel, “Recognize this: As long as you act with mercy, Hashem will have mercy on you.” Sefer Chassidim #666 notes: If we are merciful to our animals, Hashem and others will be merciful to us. We should always hope and pray that the food we eat fulfills all the halachos that the Torah commands us.

Question #1: What is the prohibition called gevinas akum, and why did Chazal prohibit it?

Question #2: How is kosher cheese made differently from non-kosher cheese?

Question #3: I was once told by someone knowledgeable that one who is careful about chalav Yisrael is permitted to use a product containing whey, even though the product does not say that it is chalav Yisrael. Is this true?

Before discussing the halachic issues involved in manufacturing cheese, we need to explain the basics of cheesemaking. Hashem made cow’s milk contain all the nutrients necessary for a newborn calf to grow big and strong until it is ready to be self-supportive by mowing the lawn. The major components of milk are lactose, or milk sugar, which provides the carbohydrates a young calf needs; casein and other proteins; cream (which is the fat component); various other nutrients including calcium for healthy bones; and about 90% water, which keeps the other ingredients in suspension or solution.

To make cheese, one causes the casein to precipitate (separate) out of the fluid milk, which causes the casein to coagulate. (The word casein has the same cognate source as the word “cheese” — the Latin word for cheese, caseus.) This precipitation, or setting, can be allowed to happen naturally by allowing milk to curdle (thus producing the “delicacy” that Little Miss Muffet ate as “curds and whey”) or, can be facilitated by adding acid or an enzyme (such as rennet) to the milk. The coagulated part of the milk, called the curd, separates from the rest, which is the whey. In the case of a “hard” cheese, the curd is pressed, molded, flavored and aged to become the variety of cheese desired. The names of most cheeses (Roquefort, Swiss, Muenster, Gouda, Cheddar etc.) reflect the geographic location where these cheeses were developed.

What is the prohibition called gevinas akum, and why did Chazal prohibit it?

The origins of the rabbinic prohibition banning non-Jewish cheese are mentioned by the Mishnah, which records an interesting conversation:

“While the two of them were traveling together, Rabbi Yishmael asked Rabbi Yehoshua: ‘Why is the cheese of gentiles prohibited?’ He answered: ‘Because they set it using the stomach of a calf that had been slaughtered in a non-kosher way.” Rabbi Yishmael noted legal reasons why he felt that this could not be the reason for the prohibition, upon which Rabbi Yehoshua explained that the prohibition is “because the gentiles set the cheese with the stomach of a calf that had been offered for idol worship.” Rabbi Yishmael denied that this could be the reason, because if it was, one should not be permitted even to benefit from gentile cheese. At this point, Rabbi Yehoshua changed the subject, signifying that he would not discuss the matter further (Avodah Zarah 29b).

As we see, Rabbi Yehoshua evaded explaining why the Sages prohibited cheese. This is very curious, particularly when compared to the prohibition of chalav akum¸which the Gemara explicitly states is because of concern that non-kosher milk might be added.

In addition to the two explanations that Rabbi Yehoshua cited, the Gemara (Avodah Zarah 35) mentions five additional reasons why Chazal prohibited consumption of gevinas akum:

(1) Rabbi Yehoshua ben Levi: The milk may have been left in a place that snakes could poison it with their venom.

(2) Rabbi Chanina: The milk may have been adulterated with milk of a non-kosher species. Although most non-kosher species do not allow themselves to be milked, camels, donkeys, and mares (female horses) can all be milked and produce a palatable product. It is because of concern that these milks may have been added to milk from a kosher species that Chazal created a different prohibition, consuming milk when a Jew did not observe the milking (chalav akum). Although milk from non-kosher species contains very little casein and thus cannot be made into cheese, if such milk was mixed with kosher milk before it was processed into cheese, some fluid remains in the cheese that could contain non-kosher milk.

(3) Rav Ada bar Ahavah: The surface of the cheese may be coated with lard.

(4) Rav Chisda: Non-kosher wine vinegar may have been used to set the cheese.

(5) Rav Nachman bar Yitzchak: Sap of an orlah fruit may have been used to set the cheese. The Torah (Vayikra 19:23) prohibits eating or benefiting from fruit grown on a tree during its first three years. Those fruits are called orlah and the prohibition of the Torah applies whether the tree was planted by a Jew or a gentile, and whether it grew in Eretz Yisroel or in chutz la’Aretz.

The Rambam in his discussion of these laws mentions setting cheese with the sap of figs. Presumably, he is referring to the juice of figs from which today we extract the enzyme known as ficain (or ficin) which is used to make certain varieties of cheese.

As we will soon see, the Rishonim dispute whether these five opinions are in dispute – meaning that each holds his reasons to the exclusion of the others, or that they are each citing a different reason for the prohibition, and that the cheese was prohibited because of any of the reasons.

I want to share with you a curiosity: While researching information for this article, I discovered a sixty-year-old article describing how one manufactures cheddar cheese (also a name of geographic origin since it was originally developed in Cheddar, England). The article reports that the cheese was made by adding calf stomach rennet to the milk to make it curd, heating the curd, going through several processes to carefully remove “every scrap” of whey, pressing the curd, plunging it into hot water briefly to form a thin rind and then greasing the rind with pure lard to thicken the rind. Thus, three of the reasons mentioned by the Gemara to prohibit cheese were used to make this cheese – the use of non-kosher rennet; the use of lard; and the remaining uncurded milk in the cheese which could contain adulterated milk were it not deliberately removed.

Why did Rabbi Yehoshua hide the reason?

Although we now have some background why Chazal prohibited gentile cheese, we have no idea why Rabbi Yehoshua was reticent to explain the origin of the prohibition. However, the Gemara (Avodah Zarah 35a) does explain his concern, in the following passage: “Why did he not reveal the true reason? As Ula explained: When the scholars of Eretz Yisrael decreed a new prohibition, they did not reveal the reason for twelve months — lest someone dispute their reason and be lax in its observance.” Thus, we see that even when the prohibition began, no reason was given out of concern that this would affect whether the takanah would be properly observed.

In the times of the Rishonim, there were areas of Europe, particularly in Italy and parts of southern France, where there was a long-established practice to be lenient regarding the consumption of the local cheese of non-Jews. The lenience was based on the fact that the Jews knew the recipe that the gentile cheesemakers used, and that none of the concerns mentioned by the Gemara were germane. The cheese was set with “flowers,” some variety of plant-based enzyme. I am told that, to this day, there are cheeses in some parts of Europe that are made with an enzyme found naturally in a variety of thistle. Perhaps, this was the type of cheese that these communities used.

In any event, this leniency was common in certain areas and found halachic backing (several Rishonim in the name of the Geonei Narvona). Tosafos quotes Rabbeinu Tam as saying “that we do not find an obvious reason to prohibit gevinas akum.” Rabbeinu Tam felt that the different opinions quoted in the Gemara are in dispute and that the authoritative position for the gezeirah of gevinas akum is that of Rabbi Yehoshua ben Levi — that the cheese may be contaminated with snake venom. Rabbeinu Tam then opines that, according to Rabbi Yehoshua ben Levi, the prohibition of gevinas akum was never instituted in a place where snakes do not flourish.

However, most Rishonim reject this reasoning, some because they feel that the different reasons mentioned by the Gemara do not necessarily disagree, and others contending that the prohibition against gentile cheese exists even when none of the original reasons apply. They maintain that the prohibition has a halachic status of davar she’beminyan, a rabbinic injunction that remains binding until a larger and more authoritative body declares the original injunction invalid, even when the reason the takanah was introduced no longer applies. Since a more authoritative beis din never rescinded the prohibition on gentile cheese, it remains even when none of the reasons apply (Rambam, Maachalos Asuros 3:4; Rashba, Toras HaBayis page 90b; Semag, Mitzvah 223; Tur, Yoreh Deah 115; For an explanation of how the Geonei Narvona resolved this issue, see Chazon Ish, Yoreh Deah 40). Others even argued that Rabbeinu Tam himself never permitted gevinas akum; his comments were meant to be theoretical, not definitive (Semag; Semak).

The Shulchan Aruch rules that there is no halachic basis to allow the practice of those communities that permitted use of the local gentile cheese, even when one has ascertained that they contain no non-kosher ingredients. The Rema follows a moderately more lenient view, permitting use of gentile cheese only in a place where one can ascertain that there was a long established custom to permit it. Thus, today no one would be able to use gentile cheese, with the possible exception of an Italian community that can prove that they have such a tradition going back several hundred years.

How is kosher cheese made differently from non-kosher cheese?

Having established that almost universal opinion contends that the prohibition against gentile cheese is alive and well even when none of the concerns apply, we need to clarify: Is any cheese produced by a gentile halachically non-kosher? Can a Jewish cheesemaker hire non-Jewish workers? Is there a way to have a gentile manufacture cheese and it is still kosher?

Regarding these issues, we find a dispute between two major halachic authorities, the Rema (Yoreh Deah 215:2) and the Shach. The Rema contends that when a Jew observes the production the cheese is gevinas Yisrael and fully kosher, even though the milk and curding agents are all owned by a gentile, and gentiles perform every step and process. Thus, the Rema understands the prohibition of gevinas akum to be structured similarly to chalav akum – if a Jew supervised the production, it is kosher.

The Shach takes issue with this approach, contending that if a gentile owns the milk, the acid, and the enzyme, and places the acid or enzyme into the milk; the resultant cheese is prohibited as gevinas akum, even if an observant Jew supervised the entire production! The Shach rallies support for his position from the wording of the Mishnah, which, when describing the prohibition against chalav akum, prohibits milk “milked by a gentile without a Jew watching,” whereas in discussing gevinas akum, the Mishnah simply prohibits “the cheese of gentiles,” omitting the proviso that a supervising Jew is sufficient to remove the prohibition. According to the Shach, the only “whey” to avoid gevinas akum is to have a Jew place the curding agent into the milk, or to have a Jew own the milk or the cheese. In these instances, the cheese is now considered “Jewish” cheese, because it was either owned or manufactured by a Jew.

The Shabbos problem

Those who followed the Shach’s approach, occasionally ran into the following practical problem. In order to have kosher cheese, they needed to have a gentile make it for them, and they could easily arrange that a Jew add the enzyme or acid to the milk. The gentiles were willing to accommodate Jewish needs if the price was right; the gentile ordinarily used non-kosher rennet, the Jew used his own kosher rennet. However, what was one to do when the gentile decided that the best day to set the cheese was on Shabbos? A Jew may not put rennet into milk on Shabbos – and, according to the Shach, if he does not, there is a problem of gevinas akum.

This entire problem does not exist according to the Rema. In his opinion, there is no gevinas akum problem here. The Jew can simply oversee the work that the non-Jew is performing, even on Shabbos. The Jew himself is performing no melacha, and the non-Jew does not have to keep Shabbos.

The Pri Chadash, who agrees with the Shach’s analysis as to what makes a cheese “Jewish,” discusses this issue and concludes the following:

If the Jew orders a certain quantity of cheese, that is sufficient to permit the cheese as gevinas Yisrael. Since this cheese is being specifically made for the Jew, the Jew is considered the owner of this cheese as soon as it is manufactured, thus eliminating the prohibition of gevinas akum, even if the Jew did not participate in the manufacture.

Hard and soft cheese; butter

Halachically, there is much discussion among authorities whether the prohibition of gevinas akum applies to butter and to certain soft cheeses like cottage cheese and cream cheese. This topic is explained in a different article, “The Great Cottage Cheese Controversy.” Searching for the word “cottage cheese” on the website should be sufficient.

The milky whey

Whey is a byproduct of the cheese industry. When milk curds, the leftover is the whey, which, although a byproduct, may have much commercial use if made from certain cheeses.

The first question we need to resolve: Is whey prohibited because of gevinas akum? Many halachic authorities accept that the prohibition of gevinas akum applies only to the cheese, but not to the whey. However, many varieties of whey may still be non-kosher for an interesting reason: Some types of cheese are produced by heating the milk to temperatures hot enough that the whey absorbs from the non-kosher cheese. Other cheeses, although produced at lower temperatures, have hot water added to the finished cheese that becomes part to the whey. The result is that this whey is non-kosher because it contains admixture of non-kosher cheese (Darkei Teshuvah 115:30).

However,we should note that Rav Moshe Feinstein contends that the whey that results from cheesemaking remains kosher since the cheese at the time of production is still owned by the gentile. Only when a Jew purchases the cheese does it become non-kosher, and therefore the whey is not considered to contain any taste from non-kosher cheese (Shu”t Igros Moshe, Yoreh Deah 3:17). In addition, he argues that Chazal did not prohibit whey from cheese production under any circumstances.

According to all opinions, whey is exempt from the prohibition of chalav akum. This is a topic to which we will need to return when we discuss butter and soft cheeses.

“Kosher Cheese?!?”

Before we close our discussion, I want to share with you a personal anecdote that demonstrates not only concerns about gevinas akum but also shows why one should not use a product when one does not know who stands behind its kashrus supervision. I was once driving through a small town in Western New York when I noticed a small cheese factory on the opposite side of the street. Being the curious type, I decided to drop in on the facility to learn more about the production processes. Since I am not shy, I asked the receptionist whether the owner or manager was in, and that I was a rabbi involved in kosher certification and interested in increasing my knowledge of food production. I was pleasantly surprised at the friendly reception I received from the owner, Vince, who indeed showed me through the facility and answered all my questions very cordially, as if he had all the time in the world. Obviously, the cheese was not kosher because of gevinas akum, and I therefore made no attempt to ascertain what type of rennet the company used.

After the tour, I was very surprised by the conversation that ensued, considering that this was a completely spontaneous visit and Vince did not even know me. He asked me whether I was an Orthodox rabbi, and whether I would be interested to provide his plant with a letter that it is a kosher facility. I was quite surprised by the question, and asked him whether he had ever entertained kosher certification before.

“Oh, we have been kosher for many years, but we have been unable to contact our rabbi to renew his letter.”

Further inquiry revealed that for many years the company had been paying an annual fee to a “rabbi” who in exchange provided them with a letter that the cheese was kosher. I was never able to ascertain whether this individual was a completely unlearned “rabbi” who was oblivious to the prohibition of gevinas akum, or someone not observant or concerned of the halacha. But it really makes no difference. As we have learned, obtaining a “kosher” letter is not a sufficient procedure with which to kosherize cheese.

Question #1: How many mitzvos?

“Is keeping kosher more than one mitzvah?”

Question #2: Food for thought

“Am I required to eat each of the kosher species?”

Question #3: Check your scales

“Must I check fish for scales each time I purchase one?”

Introduction:

The Torah says (in parshas Shemini), Zos hachayah asher tocheilu, “These are the living things from which you may eat,” which the midrashei halacha and the Rambam count as mitzvos aseih. The Rambam considers these as lav haba miklal aseih, a prohibition verbalized as a mitzvas aseih, which is sometimes called an issur aseih. We noted that the Rambam counts four different mitzvos aseih, one to eat only kosher animals, one to eat only kosher fish, one to eat only kosher fowl, and one to eat only kosher grasshoppers. We also learned that the Rambam explains that he wrote the Sefer Hamitzvos to explain the rules that govern what is included in the listing of the 613 mitzvos. We now continue with part two of our article.

What type of positive mitzvah?

The first half of Sefer Hamitzvos consists of fourteen rules, called sherashim, that the Rambam established to determine whether something is counted as one of the 613 mitzvos. In the sixth shoresh, the Rambam rules that if a mitzvah is commanded in the Torah both as a positive commandment and as a negative prohibition, then it is counted as two of the 613 mitzvos — both as a mitzvas aseih and as a mitzvas lo sa’aseih. The Rambam explains that there are three types of mitzvos aseih in which this occurs.

1. In some instances, there is a positive mitzvah that is a flipside of the negative prohibition. For example, someone who observes Shabbos or Yom Tov fulfills a positive mitzvah (Pesachim 84a). There is also a negative prohibition which one violates by performing prohibited activity on Shabbos or Yom Tov.

Similarly, there is a positive mitzvah to observe shemittah, and negative ones involving performing prohibited activity during shemittah. Another example is fasting on Yom Kippur, which involves both a positive mitzvah of afflicting oneself and a lo sa’aseh.

2. A second type of positive mitzvah that accompanies a lo sa’aseh is what is called a lav shekadmo aseih — there is a mitzvah to do something, but one who violates the intent of the positive mitzvah will, at that time, also violate a lo sa’aseh. Two examples of this rule are the cases of the oneis and the motzi shem ra, both of whom are required by a mitzvas aseih to marry and remain married to the wronged woman (should she agree). Should he subsequently divorce her, he will violate a lo sa’aseh, in addition to violating the asei to remain married to her.

3. A third type of positive mitzvah that accompanies a lo sa’aseh is called lav hanitak le’aseih, in which the mitzvas aseih is the instruction that the Torah provides if someone violates the lo sa’aseh. Here are two examples of this situation: The mitzvas lo sa’aseh of nosar is to make sure not to leave over edible parts of a korban past the time that the Torah established for that particular korban. One who does leave over and violates the lo sa’aseh now becomes commanded to observe a mitzvah aseih of burning the leftovers.

A second example is the mitzvah of shiluach hakein, in which one is prohibited from taking the mother bird while she is fulfilling her motherly duties to her eggs or young. One who violates this prohibition by seizing the mother bird is now required to observe the positive mitzvah of setting her free.

We are now faced with a question: If the word tocheilu is a positive mitzvah, what is the Torah commanding us to do? It certainly does not fit the second or third of the three categories mentioned above. The second category would mean that there is a positive mitzvah that one is required to perform whose result one now wishes to abrogate. The mitzvah of tocheilu certainly does not fit this category. Similarly, tocheilu cannot fit the third category, because this mitzvah is not correcting an error.  

If tocheilu is included in the first category, it would mean that one who eats non-kosher violates an aseih, also. Whether we can look at the mitzvah this way appears to be the point of departure between the Rambam and the Ramban. The Ramban wrote the earliest commentary to the Rambam’s Sefer Hamitzvos, with a goal of explaining the Behag’s approach and answering the questions that the Rambam asks on the Behag. At times, the Ramban takes issue with some of the Rambam’s 14 rules. However, the Ramban accepts the Rambam’s sixth rule that a mitzvah, such as Shabbos or Yom Tov, when expressed by the Torah both in a positive way and a negative one, is counted twice, both as a mitzvas aseih and as a mitzvas lo sa’aseh. However,  the Ramban disagrees with the Rambam regarding these four mitzvos of identifying kosher species.

To quote the Ramban, “I see in this matter a major dispute (between the Behag and the Rambam) and, without any question, one of the opinions is erroneous. There are instances in which there is both a lo sa’aseh and an aseih in the same topic; however, both are not counted as mitzvos. An example is the permitted and forbidden animals, fish and fowl, where the Torah includes a positive statement, ‘this is the animal that you may eat,’ and Chazal interpret this to be a mitzvas aseih. Similarly, when it says, ‘you may eat any pure bird,’ this is counted as a positive mitzvah. And again, when it says, ‘this you may eat, from whatever is in the water.’ It is obvious that the intent of the Torah is not to say that when one eats an animal or a fish with the proper kosher signs that one fulfills a mitzvah, and that someone who traps them and then does not eat them is in violation of his observance of a positive mitzvah. The intent, clearly, is that one may eat only these species and not the non-kosher ones. This is called a lo sa’aseh that is derived from a positive statement (in Hebrew, this is called a lav haba miklal aseih), whose purpose is to establish that someone who violates the lo sa’aseh also violates an aseih.”

The Ramban then notes that in all of these instances, the Rambam counts as positive mitzvos that one check whether a species of animal, bird, fish or grasshopper is kosher. However, concludes the Ramban, “The Behag did not count them, because they do not include a positive activity, whereas avoiding eating the prohibited is already included in the lo sa’aseh. Consequently, referring to the prohibition in a positive way does not add to the mitzvah count in these instances, just as repeating the lo sa’aseh several times does not add an extra lo sa’aseh to the mitzvah count.”

The last point raised by the Ramban is mentioned by the Rambam and others. The Torah often repeats a prohibition many times. When the additional pasuk does not add any new halachic information, the additional reference does not constitute an additional mitzvah.

Be positive!

Many authorities rally to address the final point of the Ramban, that the Rambam’s inclusion of these four positive mitzvos must include some additional component or ruling to the halacha. Support for this approach can be brought from the way the Rambam, himself, mentions these mitzvos. In all four instances, the Rambam writes that we are commanded to check for the signs that the particular species is kosher. And he writes this in two places, once in the Mishneh Torah and another time in the Sefer Hamitzvos. There is also one time in the Mishneh Torah where the Rambam writes that the mitzvah is to “know” the kosher signs. What exactly does this mitzvah of checking or knowing entail?

What does a mitzvah add?

Many approaches are suggested to explain what the positive mitzvah might be including, according to the Rambam. Some understand that the mitzvah requires that one be completely familiar with the simanim of the kosher species and have hands-on experience. Book knowledge that split hooves and chewing cud are kosher signs, without knowing what these two terms mean, does not fulfill the mitzvah (Darchei Teshuvah 79:1, quoting Korban Aharon and Yad David).

A second approach is that someone who consumes food from a certain species, not knowing if it is kosher or not, who then discovers that he indeed ate a kosher animal, violates the mitzvas aseih for not checking the indicative factors first (Sefer Hachinuch; Pri To’ar, Yoreh Deah 79:1; Kinas Sofrim; see also Darchei Teshuvah 79:1). To quote the Sefer Hachinuch (Mitzvah #153) “One who violates this mitzvah because he checked only one siman and relied on that without checking for the other siman, even though it turns out that he ate from a kosher species, has neglected his observance of this mitzvah of checking simanim.”

What’s in a horn?

When the Sefer Hachinuch mentions this approach to explain the Rambam’s position, he adds a further comment that appears somewhat strange. He writes that there is also a requirement to know the simanim that identify whether a particular species is a beheimah or whether it is a chayah. There are several laws that are affected by this distinction, and the Gemara provides criteria, depending on the appearance of the animal’s horns, whereby one can identify whether a particular kosher species is a beheimah or a chayah.

However, this comment of the Sefer Hachinuch is very surprising. The Torah, as explained by the above-quoted comments of the Sifrei and the Sifra, includes a mitzvah that we identify whether a species is kosher or not. No matter how we understand this mitzvah of the Torah — and I will soon provide several other approaches — the mitzvah applies only to places where the Torah states that we may eat a certain variety of creature and then provides a defining characteristic or nomenclature. However, where do we see any mitzvah requiring one to identify whether a specific kosher species is a beheimah or a chayah?

The Minchas Chinuch answers that, in fact, horns do function as a secondary siman to determine whether a beheimah is kosher, although they do not function as a siman to determine whether a chayah is kosher. In other words, there are no non-kosher beheimos that bear horns, although there are non-kosher chayos that do. Thus, a beheimah having horns can be used to determine whether a species is kosher.

This explanation of the Minchas Chinuch is also a novel interpretation. The Torah provides two criteria to determine whether a mammal is of a kosher species: does it ruminate, and does it have completely split hooves. Granted that horns are a secondary characteristic, but where do we see that this is included in the Torah’s mitzvah?

More positive attitudes

There are also numerous technical answers why the Rambam counted tocheilu as separate mitzvos. Some authorities explain that one who checks the simanim of an unfamiliar species that he would like to eat, to see if it is kosher, fulfills a mitzvas aseih. This author is inclined to think that, according to this opinion, he should recite a brocha before checking, because that is what the Torah commanded one to do. We do not recite a brocha because of the machlokes haposkim as to whether this act indeed fulfills a mitzvas aseih.

We should note that the halachic authorities accept that once one recognizes a particular species as kosher, there is no further requirement to continue checking the kosher signs of this species (Minchas Chinuch 153; Darchei Teshuvah 79:1). Thus, there is no mitzvah to check for the scales of an obviously identifiable salmon.

Other positive approaches

Still others explain that the meaning of the Rambam’s mitzvas aseih is that one may not rely on the fact that a specific species is probably kosher. In general, there is a halacha that one may rely on rov. Upon this basis, someone not knowing whether a certain variety of bird or fish is kosher could rely on the fact that most fishes with a certain appearance are kosher, or that most birds are kosher. Although, in general, the halachic rule is that one may assume that what is before you is from the majority that are kosher, one may not consume an unfamiliar species, based on the information that there is a rov that this species is kosher (Shu”t HaRivosh #192).

There are other technical ways to explain the Rambam’s position. Some explain that one violates the mitzvas aseih by eating less than a kezayis, even though this is too small an amount to be culpable for violating the lo sa’aseh (Pri Megadim, quoted by Minchas Chinuch, Mitzvah #470 and by Maharam Shik, Mitzvah #154). The Minchas Chinuch (ad loc.), himself, suggests an alternative approach: Although one who consumes a non-kosher species in an unusual manner does not violate a lo sa’aseh, he will violate the mitzvas aseih min haTorah if he eats something that is not normally edible. This would be a novel and stringent idea in halacha, which has ramifications regarding the consumption of medicines and vitamins, a topic we have discussed in the past.

Conclusion

We see that there are halachic ramifications to the dispute between the Rambam and the Ramban as to whether there is a positive mitzvah to keep kosher, or at least, to eat only from kosher species. We should always hope and pray that the food we eat fulfills all the halachos that the Torah commands us.

For the first part of this article, click here.

Question #1: The Chicken or the Egg?

Which came first, the chicken or the egg? In other words, may I eat a bird relying that the egg it lays has a kosher shaped shell?

Question #2: Mom and Pop Shop

Can a non-kosher species of bird and a kosher species of bird produce viable offspring together?

Foreword:

In the first part of this article, we learned that Hashem taught Noach the halachos of how to identify kosher animals, so that he could fulfill: “From each of the kosher animals you shall take seven, male and female, and from the non-kosher animals two, male and female. Also, from the birds of the heavens you shall take seven, male and female” (Bereishis 7:2-3). We also learned that the Torah teaches which varieties of birds are non-kosher (Vayikra 11:13- 19; Devarim 14:11- 19). We also learned that Chazal figured out some simanim of the kosher birds, but that we rely only on mesorah to know which birds are kosher.

Walking on eggshells

At this point, I have a different question. There seems to be a simpler criterion by which we can prove whether a bird is kosher or not. The Gemara mentions that the eggs of kosher species have a definitive appearance. They possess an elliptical shape: the eggs are oval on opposite ends, but one end is considerably wider than the other. Eggs that are either pointed on both ends or wide on both ends are all laid by non-kosher species. Why don’t we use the shape of the egg, often called an “egg shape,” as a siman that the bird mom who laid these eggs is kosher?

The answer is that, in addition to all kosher birds, there are also non-kosher bird species that produce egg-shaped eggs (Shulchan Aruch, Yoreh Deah 86:1). Therefore, the shape of the egg cannot be used as a sign that the egg is kosher, only that it is non-kosher if it is the “wrong” shape.

Mom and pop shop

Regarding mammalian species, the Gemara (Bechoros 7a) rules that a kosher species and a non-kosher species cannot reproduce together. Therefore, even if we cannot determine whether a specific animal chews it cud or has split hooves (for example, we find an animal that chews its cud but its feet are damaged in a way that we cannot determine if it has split hooves) but we know that it reproduced with a kosher species, we can conclude that the unknown species is also kosher. Logically, this same concept should hold true regarding avian species – if a variety of bird for which we have no mesorah crossbreeds with a kosher bird, the new variety has been determined to be kosher.

However, the Chasam Sofer is uncertain whether this rule is true germane to birds. In other words, it is possible that a kosher species of bird and a non-kosher species of bird can produce viable young together. Although the Chasam Sofer is inclined to the view that this should determine that the unknown species is kosher, he is wary to conclude that way halachically. However, the Sochachover concludes that the rule that a kosher and a non-kosher animal will not produce viable young together applies to birds also. In his opinion, if we are certain that two varieties of bird produce a viable offspring together, and we know that one variety is kosher, we can assume that the other, heretofore unknown species is also kosher (Shu’t Avnei Neizer, Yoreh Deah #75).

In this context, there is a very interesting responsum written by the Maharam Shick, one of the most renowned disciples of the Chasam Sofer, in answer to a question posed by the Chasam Sofer’s oldest son and successor as rav and rosh yeshiva in Pressburg (today Bratislava, Slovakia), the Kesav Sofer. The Kesav Sofer asked about birds that have no mesorah as to their kashrus but are now crossbreeding with regular chicken hens and producing both eggs and chicks that are being raised for meat. Can one consume these eggs and the new crossbred birds?

The Maharam Shick divides the question into four shaylos:

1. May one eat a new bird variety of unknown kashrus once it has crossbred with a regular domestic chicken?

2. May one eat a crossbred offspring whose father is of a new variety and whose mother is a domestic chicken?

3. May one eat a crossbred offspring whose father is a domestic rooster and whose mother is of a new variety?

4. May one eat the eggs of this crossbreed? (Shu’t Maharam Shick, Yoreh Deah #100. I rearranged his order of questions to present his answers more clearly.)

The Maharam Shick concludes:

1. Since the Chasam Sofer ruled that crossbreeding a kosher species with a non-kosher variety does not prove that the other parent is kosher, we cannot permit the newly available bird variety. The Maharam Shick adds additional considerations to this aspect of the question, based on the fact that Ashkenazim follow the approach of Rashi that we eat birds only when we have a mesorah that they are kosher.

2. A crossbred offspring whose mother is a domestic chicken is permitted, a ruling that requires an explanation. Here are some of the reasons why the offspring may be permitted even if its father is not:

Ein choshashin le’zera ha’av

A. The early tanna’im, Chananyah and the Sages, dispute whether halacha is concerned about paternal lineage of an animal, called choshashin le’zera ha’av (Chullin 79a), which is the position of Chananyah, or ein choshashin le’zera ha’av, we can ignore the paternal lineage. The halachic conclusion is that it is a safek whether we are concerned. Therefore, when the issue relates to a rabbinic prohibition, we may rule leniently that ein choshashin le’zera ha’av, whereas when it relates to an issue that is min haTorah we rule choshashin le’zera ha’av and are strict. However, even when the prohibition is min haTorah, we can be lenient when there is another safek so that we now have a sefek sefeika, two different possibilities why something is permitted.

In our current shaylah, we know that Mom’s side of the family is kosher, but we are uncertain whether Dad’s family is a kosher breed. Indeed Dad’s breed might be kosher and we also have another halachic reason – ein choshashin le’zera ha’av – that allows us to ignore Dad’s family. This makes the newly developed breed permitted because of sefek sefeika, perhaps the father’s breed is permitted, and even if it is not, we can ignore it because of the rule of ein choshashin le’zera ha’av.

Zeh ve’zeh goreim

B. Food or other benefits produced by two contributing factors, one forbidden and the other permitted, are called zeh ve’zeh gorem. The tanna’im dispute whether zeh ve’zeh gorem is permitted or not. The halachic conclusion is that we are not permitted to create a product that is zeh ve’zeh gorem, but, bedei’evid, the item is permitted. (However, see Shu’t Tuv Taam Vada’as, Yoreh Deah #151.) Thus, even if the newly developed breed’s father was prohibited, it can be permitted because of the mother.

3. Although both explanations I just provided are reasons why one may eat a crossbred offspring whose mother is a domestic chicken, in shaylah #3 of the Maharam Shick, in which father is a domestic rooster and mother is of a new variety, the first reason I provided, ein choshashin le’zera ha’av, does not apply because mother’s side, the more important side, is from the unknown new variety. However, the second reason, zeh ve’zeh gorem, is a basis to rule leniently.

Egg decomposition

Here is another reason why we might be able to permit these cases: The Gemara (Temurah 31a) states that there is a halachic difference between the development of birds’ eggs into chicks and the development of mammals. During the development of an egg into a chick, the living material decomposes and, as a result, is no longer a kashrus issue. According to some authorities, this means that we are not concerned with the species of the parents of a new breed, but simply examine whether the bird that emerges from the shell appears similar enough to a breed that we already know to be kosher. According to this approach, in all cases of crossbreeding bird species, the only consideration might be to what extent the new crossbreed looks like the previously known species.

4. At this point, we should address the fourth of the Maharam Shick’s shaylos: May one eat the eggs that are created from this crossbreed?

If we know that the hen that laid the egg is a domestic chicken, this egg is permitted. If we find an egg and do not know which hen laid it, the halacha is that if the egg appears with a typical egg shape, we may consume the egg (Shu’t Chasam Sofer, Yoreh Deah #74; Shu’t Maharam Shick, Yoreh Deah #100; Shu’t Tuv Taam Vada’as, Yoreh Deah #151).

Conclusion: turkey vs. eagle

Did Benjamin Franklin really want the turkey to be the symbol of the United States of America? Well, this is what he wrote in a letter:

“For my own part I wish the bald eagle had not been chosen the representative of our country. He is a bird of bad moral character. He does not get his living honestly… He is therefore by no means a proper emblem for the brave and honest… The turkey is in comparison a much more respectable bird, and withal a true original native of America… He is… a bird of courage and would not hesitate to attack a grenadier of the British Guards who should presume to invade his farm yard with a red coat.”

To reinforce good old Ben’s argument, we note that whereas the turkey has all four simanim of a kosher bird, the eagle has none. The Ramban explains that the Torah forbade the non-kosher birds because the Torah wants us to avoid the bad midos that they exhibit. One could assume that the kosher species may exhibit admirable traits that the Torah wants us to emulate. Certainly, the courage to observe mitzvos in times of adversity is a tremendous virtue worth thinking about the next time we eat turkey.

Question #1: Bird Determination

I know that birds are very determined to get to their destinations, but how do we determine whether they are kosher?

Question #2: Noach’s Kosher Aviary

How did Noach know which species of bird and animal are kosher? The Torah was not given until Moshe Rabbeinu, fifteen generations later!

Question #3: The Chicken or the Egg?

Which comes first, the chicken or the egg? In other words, may I eat a bird relying that the egg it lays has a kosher shell shape?

Question #4: Mom and Pop Shop

Can a non-kosher species of bird and a kosher species of bird produce viable offspring together?

Foreword:

Noach was commanded to bring more kosher than non-kosher animals into the teivah, as the Torah states: “From each of the kosher animals you shall take seven, male and female, and from the non-kosher animals two, male and female. Also, from the birds of the heavens you shall take seven, male and female” (Bereishis 7:2-3). But how did Noach know which species are kosher? Rashi (Bereishis 7:2) explains that this demonstrates that Noach studied the Torah. Presumably, he became an expert on the list of kosher birds in Parshas Shemini and Parshas Re’eih.

However, this presents us with a curious problem. Noach could have easily observed which mammals have split hooves, and he could also figure out which species chew their cud. (Although it is not perfectly accurate, I am going to substitute the word mammal, rather than animal, for the Torah’s beheimah and chayah in order to avoid confusion that occurs in English – since birds, fish, reptiles and insects are all types of animal, although none of them qualify as either beheimah or chayah, which are subcategories of what we call “mammals.”)

Although the Torah describes the exact indicating signs, simanim, that render fish and animals kosher (“indicia” in proper English), regarding birds the Torah simply inventories the non-kosher varieties (Vayikra 11:13-19; Devarim 14:11-19). Most of these appear to be non-kosher species, but in four instances, the Torah states lemino or lemineihu, meaning that these include categories of non-kosher birds. In addition, Chazal’s analysis of the case of nesher concludes that this is also a category of birds. So how did Noach know to identify the non-kosher species? The rishonim (Radak, Bereishis 7:2; Ramban, Bereishis 6:20) explain that when Noach was commanded concerning how many of each species to bring into the teivah, he was also told how to identify which are kosher.

Noach’s Kosher Aviary

We now have the answer to one of our opening questions: “How did Noach know which species of bird and animal are kosher? The Torah was not given until Moshe Rabbeinu, fifteen generations later!”

According to the Ramban and others, Hashem taught Noach the Torah, including a comprehensive listing of all kosher birds and animals, so that he could accomplish what he was commanded.

Simanim of kosher birds

At this point, we need to understand several aspects of the indicia of kosher birds. As opposed to kosher mammals, fish and grasshoppers, where the Torah provides rules indicating which are kosher, regarding birds the Torah lists the non-kosher ones, implying that all other birds are kosher. The Gemara analyzes the Torah’s two lists, concluding that 24 varieties and categories of bird are non-kosher (Chullin 61b). Someone who verifies all 24 non-kosher varieties may shecht and eat any other bird species he discovers. The Gemara states that a hunter who recognizes all the varieties of non-kosher bird may shecht and eat any other species of bird he discovers and may teach other people which species are kosher (Chullin 63b). By process of elimination, our hunter knows that all other birds are kosher. The same passage of Gemara notes that there are countless kosher species of birds (Chullin 63b).

Size of teivah

Of course, we now have a question: If there are thousands of varieties of kosher bird, each of which had fourteen representatives in the teivah, how could the teivah have been big enough for all of them!

I note that, even without this birdie calculation, the Ramban already points out that the teivah was not possibly big enough to accommodate all its passengers and their food requirements. He observes that even ten teivos of the size that Noach constructed would be vastly insufficient to hold the necessary cargo. It could only exist and survive by a miracle. The Ramban then explains why Noach was required to build the teivah to its insufficient dimensions.

Bird determination

At this point, let us address our opening question: “I know that birds are very determined to get to their destinations, but how do we determine whether they are kosher?”

Chazal observed that there are four simanim of kosher birds (Mishnah Chullin 59a). However, there is a qualitative difference between the identifying characteristics of birds and those that the Torah uses to identify kosher fish and mammals. Any mammal that has fully split hooves and chews its cud is kosher, and any that does not have both of these indicia is not. There are no exceptions; the simanim of the Torah are absolute. Similarly, any fish that has fins and the proper scales (see Ramban, Vayikra 11:9; Rema, Yoreh Deah 83:1) is kosher, and any that does not have these simanim is not kosher. Again, there are no exceptions.

However, when discussing indicia that a bird is kosher, the Mishnah teaches that there are four simanim. Any bird that has all four kosher simanim is kosher. Any bird that has none of the four kosher simanim is not kosher. However, many birds have some of the simanim, but not others, and are still kosher. Yet there are other birds that have some simanim and are not kosher. In other words, a bird that has some of the simanim, but not all, might be kosher and might not be. This means that the simanim can be used sometimes to ascertain whether a bird is kosher, but are not a litmus test. Although the halachically expert hunter mentioned in the Gemara could figure out by process of elimination whether a species is kosher, the only practical way for us to know whether a bird with some simanim and not others is kosher is through mesorah.

For example, the peres and the ozniah, two of the 24 non-kosher varieties, each possesses only one of the kosher simanim and lacks the other three. The oreiv, usually identified as the raven (see Tosafos, Chullin 62a s.v. Mipnei who discusses whether this is accurate) and the zarzur each has two kosher simanim and lack the remaining two, and the remaining 19 types of non-kosher birds each has three of the simanim and lacks only one. (This follows the approach of most interpretations of this passage of Gemara.) But there are other birds that have one, two or three of the simanim and are kosher.

What are the indicia that a bird is kosher? In other words, what are the simanim that if we can identify that a bird has all of them it is definitely kosher? For practical reasons, I am not listing and explaining them in the order of the Mishnah, but according to function. The Mishnah (Chullin 59a) lists four simanim, which include three anatomical features, one external and two internal, and one behavioral.

The external feature, called etzba yeseirah, means that it possesses an “extra claw,” or, according to other opinions, “a larger claw.” The rishonim disagree what exactly this means, some understanding that this claw points in the opposite direction from the other claws of the bird; others explain that this claw protrudes at a higher point on the leg than do the other claws. A third approach understands that the claw protrudes outward farther than the others.

Crop and gizzard

The two internal features of a kosher bird are that it has a crop, and a gizzard that can be peeled manually. To the uninitiated, this sounds fairly strange, particularly, since most of us have never dissected the digestive system of a bird and certainly have never had the opportunity to compare the digestive systems of various types of bird. Let me explain, very briefly:

The crop is an expandable storage pouch for undigested food. It is commonly found among birds that eat seeds and grains for sustenance.

The gizzard is more commonly known to us by its Yiddish name, pupek, whose hard muscle grinds the seeds that a bird eats so that they can then be properly digested.

Don’t chew your food before you swallow it!

Hashem gave these features to small birds who stick to a vegan diet. These allow them to enter fields and meadows and quickly gobble up a large quantity of seed without chewing or digesting them. Then they can disappear to their hiding places before they become somebody’s lunch. Those of us who do not have crops and gizzards would get severe indigestion if we gobbled up our food this way, which is why your mother told you to chew your food slowly and carefully before you swallow it.

Doreis

The behavioral feature is that kosher birds are never doreis. The rishonim debate exactly what this is, but it is a feature that exhibits cruelty in the way the bird seizes and devours prey. The Gemara (Chullin 62b) implies that a bird is non-kosher even if it is doreis very rarely, making it difficult to identify a bird as a non-doreis. It is also important to note that although all birds that are doreis are non-kosher, the inverse is not true — there are varieties of fowl that are not doreis, yet are not kosher.

This leads us to a conundrum raised by Tosafos (Chullin 61a, s.v. Kol Of). Whereas the simanim for kosher mammals and fish are taught by the Torah, the simanim for kosher birds are observations of the Mishnah. But that assumes that Chazal checked carefully every kosher species of bird in the world and determined that not one of them is doreis. How did that happen?

Tosafos rules out the explanation that this was an oral tradition communicated to Moshe Rabbeinu at Har Sinai (halacha leMoshe miSinai) because, if that were true, the Torah need not have mentioned all 24 varieties of non-kosher bird in order to identify all non-kosher varieties. Instead, it could have succinctly taught that all birds that are doreis are non-kosher and then provide the very small list of birds that, despite the fact that they are not doreis, are still not kosher.

Tosafos focuses on who was the only person in world history to have seen and interacted with every species, and that is Noach, who spent months in very close quarters providing the needs of all the terrestrial species of the world. Noach, who knew which birds are kosher and which are not (as explained above), observed that none of the kosher varieties were doreis. Thus, the siman that a doreis is not kosher is an oral tradition dating back to Noach (Chullin 61a, s.v. Kol Of).

The Mishnah records an alternative method of verifying whether a bird is doreis: Rabbi Elazar ben Rabbi Tzadok rules that any bird that splits its talons, two before and two behind, when it grips a rope, is doreis and therefore not kosher (Chullin 59a, as explained there by the Gemara 65a). The halachic authorities quote this statement as definitive.

For the continuation of this article, click here.

Most of us are very surprised to discover that a passage of Gemara (Avodah Zarah 68b-69a) discusses the taste of squirrels (see Rashi ad loc.). The quality of their taste is relevant to halacha notwithstanding that squirrels are non-kosher rodents, a category that includes mice, beavers and rats. In the Aramaic dialect of the Gemara, squirrels are called achbara dedabra, literally, achbarim of the field, as opposed to achbara demasa, achbarim of the city, which refers to mice, which are also usually called just achbar (singular; the additional aleph at the end of the word achbara is simply the Aramaic version of the Hebrew word). As the Gemara notes, whereas mice are not favored as cuisine, non-Jewish royal families considered squirrels a delicacy. Even in the United States, two presidents, William Henry Harrison and James Garfield, are known to have favored squirrel stew as White House fare. (Don’t blame this commonality for their short times as president; Harrison died of pneumonia and Garfield was assassinated. Neither died of stomach poisoning!)

When the Torah lists the eight creeping creatures (sheratzim) whose remains generate tumah that contaminates food, people and vessels, one of the eight listed is the achbar (Vayikra 11:29). This factor will actually become significant to our discussion, since the eight sheratzim generate tumah when a very small piece, the size of an adasha, a lentil, is extant.

Rodents are mammals, and the Torah’s definition of kosher animals includes only those that chew their cud and have split hooves, both features that evade all rodents. Thus, all rodents are non-kosher. So, our reader will ask: What halachic difference does it make whether squirrels, mice or beavers are delicacies for the non-Jewish palate or not? Whether they are cooked by Jews or non-Jews they are prohibited min haTorah, so the concept that they might be oleh al shulchan melachim (could be served at a king’s table), and may therefore be included in the prohibition of bishul akum,should be irrelevant; they are very non-kosher!

Understanding properly the passage of Gemara discussing squirrel meat requires a lengthy introduction. When a non-kosher substance mixes into kosher food, and the non-kosher food is removed or can no longer be identified, the food is usually permitted when the kosher food is sixty times the quantity of the non-kosher. Although it is forbidden to eat non-kosher, when the ratio of the non-kosher is so small that it cannot be tasted, the offending substance is nullified, bateil. Chazal arrived at the figure of sixty to one by noting that most prohibited foods will not be tasted when their percentage is this small. However, if the non-kosher food can still be tasted, such as, it possesses a strong flavor, the mixture will still be prohibited, notwithstanding that there is sixty times more kosher than non-kosher.

The same is true when the non-kosher substance is still identifiable in a different way, such as by its consistency. In this instance, the finished product is permitted only if the identifiable non-kosher substance is removed, such as by filtering it out. Similarly, some authorities prohibit consuming a substance that contains a tiny component of non-kosher food coloring. Although it cannot be tasted, it is still noticeable by the color of the product (Pri Megadim, Mishbetzos Zahav 100:1; Minchas Kohen, Sefer Hata’aroves 3:3, quoted by Darkei Teshuvah 102:30; cf. Pri Chadash, Yoreh Deah 102:5; Minchas Yaakov, 74:5; Gra Yoreh Deah 102:6 and Chasam Sofer, quoted by Darkei Teshuvah, who disagree).

Nosein ta’am lifgam

At times, the residual flavor that a food provides is nosein ta’am lifgam, which means that the taste is unappetizing. The tanna’im dispute whether the unappetizingflavor of a non-kosher item into a kosher food renders the food non-kosher. Rabbi Meir contends that nosein ta’am lifgam is prohibited — all residual flavor is prohibited, whether or not it is tasty. Rabbi Shimon disagrees, contending that nosein ta’am lifgam is permitted — the Torah prohibited the appetizing flavor of non-kosher substances, but not an unappetizing non-kosher flavor (Avodah Zarah 67b).

There are many reasons why a food might be nosein ta’am lifgam. One is because the non-kosher food or its residue is mildly spoiled. Another possibility is that people do not enjoy the flavor of that component in this particular food.

We should note that something is considered nosein ta’am lifgam even if it is only mildly distasteful. If most people prefer to eat this mixture without the taste added by the minor ingredient, that flavor qualifies as nosein ta’am lifgam.

The Mishnah (Avodah Zarah 65b) rules that nosein ta’am lifgam is permitted. This is also the conclusion of the Gemara in numerous places (Avodah Zarah 36a, 38b, 39b, 65b, 67b) and that of the halachic authorities (Rambam, Hilchos Ma’achalos Asuros 17:2; Shulchan Aruch, Yoreh Deah 103:5; 122:6). Therefore, although eating a food that includes a pleasant taste or residue of non-kosher is prohibited, when the non-kosher is not identifiable in the finished product and does not provide an appetizing flavor, the food is permitted.

Also note that it is never permitted to create a situation of bitul. Bitul is always a concept that exists after the fact – after the prohibited item became mixed in. It is forbidden to intentionally add a non-kosher ingredient to a food, even when it will be bateil in the final product. This rule is called ein mevatlin issur lechatchilah, literally, one cannot create, up front, a situation of bitul.

Rav’s achbar

This lengthy introduction has provided sufficient background to discuss the topic that I promised we would in my opening sentences to this article. The Gemara (Avodah Zarah 68b) tells us the following story: The students of Rav Sheishes’ yeshiva had heard of an incident in which an achbar had fallen into a vat of beer and that the great amora, Rav, had prohibited consumption of the entire vat, even after the achbar was removed. Although absorption of taste usually requires that the two products be heated together, which presumably did not happen to this vat of beer, there are other ways that taste can be transferred from one food to another. One example of this is kavush ki’mevushal, which literally translates as “marinating is like cooking.” A food item that sits in a liquid for 24 consecutive hours causes the flavor of the food and liquid to blend together; if one of them is non-kosher its flavor will prohibit the rest. Unless we are dealing with a salty or pungent food, the rule of kavush ki’mevushal applies only when the two sit together for at least 24 hours. If an ambient non-kosher ingredient lands in a kosher liquid and is removed before 24 hours have passed, the liquid remains kosher after the identifiable parts of the non-kosher matter are removed (Shulchan Aruch Yoreh Deah 104:1).

Let us return to our passage of Gemara: An achbar fell into a vat of beer; Rav prohibited the consumption of the entire vat. Why did Rav prohibit the beer? If the taste of marinated mice does not improve beer, this is nosein ta’am lifgam and the beer is permitted!

The students of Rav Sheishes, who had heard about Rav’s ruling, could think of only one option – that Rav accepts the opinion of Rabbi Meir prohibiting nosein ta’am lifgam. This would render the beer forbidden if the achbar was large enough to provide taste into the beer – in other words, there was less than sixty times beer in the vat, relative to the achbar.

The Gemara is not satisfied that Rav followed the stringent ruling of Rabbi Meir, presumably because of the multiplicity of places in which the Mishnah and the Gemara rule that nosein ta’am lifgam is permitted. To resolve Rav’s ruling, the Gemara presents three other approaches to explain why Rav prohibited the beer.

Repulsive foods

Rav Sheishes, the rosh yeshiva to whom the question was referred, contended that there is an exception to the general rule that nosein ta’am lifgam is permitted. In his opinion, a prohibited item that initially has a good taste and now renders a bad taste into another food is permitted because of nosein ta’am lifgam. But this applies only to a prohibited item that originally had a good taste. However, when the Torah forbids something that people find repulsive, the prohibition remains, even if it is nosein ta’am lifgam in a mixture. The logic for this position is that, in these instances, the Torah prohibited an item even though people loathe eating it. Therefore, the Torah was prohibiting even the ill taste of these items.

According to this approach, nosein ta’am lifgam is limited to foods that taste good but do not add benefit to the food in which they are mixed; nosein ta’am lifgam never applies to items that people do not usually consume as food. Since most people do not appreciate the fine taste of mice meat, this is always nosein ta’am lifgam, yet the Torah forbade it notwithstanding. Therefore, in Rav Sheishes’ opinion, a nosein ta’am lifgam of mice remains prohibited, and beer, or any other food or beverage, is forbidden when it contains a flavor from a repulsive, prohibited substance.

Squirrel

A second approach to explain Rav’s ruling is presented by Rav Shimi of Nahardea, who explains that the achbar that fell into the vat of beer was not an achbara demasa, a city achbar, also known as a mouse. It was an achbara dedabra, a squirrel, which non-Jewish royalty considered to be a delicacy. Squirrels are never considered nosein ta’am lifgam. The beer for which this squirrel gave its last moments of total devotion acquired a fine taste because of the squirrel meat. This is a case in which the non-kosher provides a positive flavor to the mixture, and the beer is prohibited for consumption min haTorah. If these are the facts with which Rav was dealing, it is obvious why he forbade the beer.

Beer is different

The final approach the Gemara provides is that of Rava, who is uncertain what Rav held, but suggests that although nosein ta’am lifgam is permitted, marinated mouse improves beer. Tosafos suggests that the mouse improves the fermentation of the beer – but not because of any “mousy” taste profile. The improved fermentation is a positive taste provided by a non-kosher substance, thereby explaining why Rav forbade the beer.

Note that although these are four very different approaches to explaining why Rav ruled stringently, the reasons provided are not mutually exclusive. The halachic authorities conclude that we accept the reason of Rav Shimi of Nahardea that squirrel meat is considered tasty and provides a good flavor into other food (Shulchan Aruch, Yoreh Deah 104:1). They also consider it a possibility that Rava’s approach is correct — mice might enhance the fermentation of beer.

The halachic authorities infer that the conclusion of the Gemara rejects Rav Sheishes’ approach and, therefore, the principle of nosein ta’am lifgam applies even to something that people find repulsive (Toras Habayis, Bayis 4, end of Sha’ar 1, page 20a; Shulchan Aruch, Yoreh Deah 104:3; Gra, Yoreh Deah 104:2).

To review: the halachic conclusion drawn from this passage of Gemara is that there are two ways that we can explain Rav’s ruling:

(1) The achbar that fell into the beer vat was a squirrel, which provides a good taste into the beer (Shulchan Aruch, Yoreh Deah 104:1). This vat could be marketed as a specialty beer product, but only to a non-Jewish market since it is non-kosher.

(2) Rav’s case was indeed a mouse, not a squirrel, but marinated mouse provides a special positive quality to the fermentation of beer that is not nosein ta’am lifgam.

Both approaches accept that a mouse that fell into oil or wine would not prohibit the product, even if it was more than one part per sixty. This is because it is nosein ta’am lifgam (Shulchan Aruch, Yoreh Deah 104:2).

Mice in vinegar

Having provided four possible solutions for Rav’s ruling, the Gemara then inquires as to whether an achbar that falls into vinegar provides a good taste or not. According to Tosafos (Avodah Zarah 69a s. v. Eibaya),the Gemara was asking the following: We are aware that pungent foods have the ability to improve tastes that are otherwise nosein ta’am lifgam. (See Mishnah, Avodah Zarah 35b, that chiltis, an exceedingly pungent food, that issliced with a non-kosher knife becomes prohibited, notwithstanding that we usually assume that residual flavors in equipment is already spoiled and nosein ta’am lifgam; see Tosafos, Avodah Zarah 67b; 69a.) This author notes that when examining the formulae used for natural or artificial flavoring, it is common to find components that are inherently very distasteful but, as an ingredient, contribute to a delicious flavor.

The Gemara questions whether vinegar, a very pungent substance, has the ability to turn the nosein ta’am lifgam of mouse meat into a positive flavor.

Shredded mice

The Gemara proceeds to discuss another shaylah. What is the halacha if a mouse was shredded and the shredded pieces fell into a liquid. As we will see, although the Gemara mentions the case when mice shreds fell into vinegar, the halacha will be the same whether they fell into vinegar or any other liquid; it also make no difference whether they were submerged in the liquid for 24 hours or not.

Understanding this discussion also requires an introduction: The Beis Hamikdash contained chambers wherein met the Sanhedrin, the halachic supreme court that was composed of the 71 greatest Torah scholars of the generation. When the Sanhedrin existed, there was a high level of enforcement of the mitzvos of the Torah. In this era, someone eating a Torah-prohibited substance was punishable by malkus. This would happen only when the sinner received a warning that the local beis din might discipline him for his iniquity. At least two eyewitnesses needed to testify that the perpetrator received the warning, acknowledged that he understood it and nevertheless immediately consumed the forbidden food. Only under these circumstances would the beis din punish him. Moreover, the sinner was guilty only if he ate a minimum size of the prohibited food, usually a kezayis, an olive-sized piece.

The rishonim (to Me’ilah 16b) dispute whether the minimum size to receive malkus for violating the prohibition of eating prohibited sheratzim is a kezayis or a smaller size, referred to as a ka’adasha, the size of a lentil bean. Rashi and the Rashba understand that one is chayov malkus for consuming even the smaller size, whereas Tosafos explains that the punishment is meted out only for someone consuming the size equivalent to a kezayis.

In today’s world, we unfortunately do not have the Sanhedrin meeting in the Beis Hamikdash and, consequently, these sins are not prosecuted. Nevertheless, there are halachos that result because the chiyuv malkus for eating a sheretz is even when consuming only a ka’adasha.

The passage of Gemara (Avodah Zarah 69a) prohibits consuming vinegar that contains shredded mouse meat. There are two different reasons why this mixture is prohibited.

1. The shredded pieces of mouse are discernible in the liquid. The only way to permit this liquid is by first filtering out all pieces. This is true regardless of what type of liquid it is, regardless as to whether the non-kosher food tastes good or not, and regardless as to how long the non-kosher food remained in the liquid. The prohibition here is because the non-kosher is discernible in the mixture and therefore not bateil.

2. There is another concern here. Since pieces as small as a ka’adasha of a non-kosher sheretz, of which mice are one of the eight types, can make one culpable for malkus, there is no bitul when pieces this small may still be in the mixture. This would be true even when the kosher food in which it became mixed has its own lumpy parts, such as a stew, cholent or porridge. Chazal prohibited consuming this food because of the possible presence of a piece large enough to be a punishable offense (see Shulchan Aruch, Yoreh Deah 104:1). This contrasts with the earlier case of the passage of Gemara in which an achbar fell into beer, but was removed, and therefore the question was only about the taste left in the beer by the achbar.

We should always hope and pray that the food we eat fulfills all the halachos that the Torah commands us.

Parshas Chukas is the first time the Jewish People found themselves with lots of treif keilim.

Question #1: It Fries through the Air

When the frying oil is all absorbed, is the food considered cooked directly by fire?

Question #2: With the Greatest of Grease

How do you kasher a commercial deep fryer?

Question #3: The Daring Young Pan

Can a frying pan present a daring challenge?

Question #4: On the Frying Trapeze

How do you kasher a frying trapeze? (I also have not yet figured out what that is.)

Kashering

The Torah teaches the halachic process whereby we kasher a utensil, when it commands, kol davar asher yavo vo’eish ta’aviru vo’eish, “Any item that entered fire, shall be passed through fire” (Bamidbar 31:23), thereby implying that kashering a utensil that became non-kosher through direct contact with a flame requires burning the appliance in a flame — no other process will sufficiently kasher this utensil.

The Mishnah (Avodah Zarah 75b) teaches that, upon purchasing used kitchen equipment from a gentile, one kashers the equipment via one of the following procedures:

1) That which is used to broil or roast food directly in fire must be kashered directly in fire, a process called libun. As examples of this rule, the Mishnah chooses a barbecue spit and a grate used for roasting. Since these utensils absorbed non-kosher ta’am directly through fire, they must be kashered by burning them in fire.

2) That which is usually used for cooking in a liquid medium must be kashered in boiling water, which is called hag’alah. Bear in mind that it must be fully clean and rust-free before it is kashered.

Kebol’o kach polto

This Mishnah teaches a rule called kebol’o kach polto, the same way a vessel absorbed non-kosher substance is the way one uses to kasher it. If a utensil; absorbed the food directly through fire, hag’alah, i.e., placing the utensil in a pot of boiling water, will not remove the residue of prohibited substance sufficiently to kasher it.However, if a prohibited or chometz-dik food was cooked in a pot, it can be kashered by hag’alah, which boils out what was absorbed.

Libun versus hag’alah

Hag’alah will remove sufficiently what was absorbed by cooking (Taz, Yoreh Deah 121:7; see Pri Megadim, Orach Chayim 452:4 in Mishbetzos Zahav). Most late authorities understand that the dissimilarity between libun and hag’alah is because the two methods of kashering operate in different ways. Libun removes the non-kosher residue by burning it in situ, similar to the way we destroy the last remnants of our chometz before Pesach. The spit or grill may be used for your kosher barbecue, because the residual flavor from the non-kosher meat has now been completely consumed. (Note, however, that there are rishonim who appear to understand this topic differently.)

On the other hand, hag’alah, boiling, kashers by removing the residue. The word hag’alah means to expel. In the book of Iyov, it says, “Their houses are safe, without fear, and no punishment from G-d is upon them. Their bulls impregnate their cows ve’lo yag’il — without miscarrying” (Iyov 21:9-10). The Hebrew word yag’il, which I have translated as miscarrying,has the same root, gimel, ayin, lamed as the word hag’alah. Rashi (ad loc.) explains that this root means to expel, and he rallies proof from the Mishnah’s use of the word hag’alah to mean to expel or extract the non-kosher residue by use of boiling water. By the way, the same root can also bear the meaning disgust, something that you want to “expel from yourself.” All of these words — miscarry, expel, extract and disgust — carry the same basic concept.  Thus, whatever taste of non-kosher food remains in the pot is dissolved and nullified in the water by the hag’alah (Shach, Yoreh Deah 121:17, quoting Re’ah; see also Pri Megadim, Orach Chayim 452:4 in Mishbetzos Zahav; Shu”t Igros Moshe, Yoreh Deah 1:60).

Therefore, libun could be used on an item requiring hag’alah, since it will satisfactorily burn up any residue. However, a utensil that requires libun cannot be kashered with hag’alah, since this does not remove sufficiently whatever was absorbed when the non-kosher food was broiled.

It fries through the air

At this point, we have “absorbed” enough background to discuss our opening question: When the frying oil is all absorbed, is the food considered cooked directly by fire?

When frying food, the food is cooked using a liquid medium, the oil. However, it is fairly common that, in the course of frying, the oil is used up and the food is fried without any visible liquid medium. At this point, do we view the absorption of the food into the pan to be direct, without a medium? Or do we contend that, since there is much oil absorbed both into the food and into the pan, it is still considered that the food was cooked via a liquid medium?

If we consider this to be direct absorption, the halachic conclusion is that kashering a frying pan requires libun. On the other hand, if we consider the absorption to be through the liquid medium of the oil, we can argue that a frying pan requires only hag’alah.

This issue is the subject of a dispute between two well-known rishonim who knew one another very well, the Rashba and the Rosh. (For a period of time, when the Rosh was a refugee from Germany who had fled to Spain, he lived as a guest in the home of the Rashba in Barcelona.) The Rashba (Toras Habayis, Bayis 4, Sha’ar 4) contends that a frying pan requires libun to kasher it, whereas the Rosh disagrees, arguing that it is sufficient to kasher a frying pan with hag’alah (Rosh, Pesachim 2:7; Shu”t Harosh 14:1).

With the greatest of grease

How do you kasher a commercial deep fryer?

By the way, it can be inferred from the way the Rashba expresses himself that he agrees with the Rosh that it is permitted to kasher a deep fryer with hag’alah, even it was used with treif oil. However, we will note another opinion shortly.

How do we rule?

This is where we are faced with a true conundrum. Without explaining his reasoning, the Shulchan Aruch states overtly that it depends on why we are kashering the pan. If we are kashering it because it was used for non-kosher, the Shulchan Aruch requires that we kasher it with libun (Yoreh Deah 121:4). However, if we are kashering it to make it Pesach-dik, he requires only hag’alah (Orach Chayim 451:11).

Although there are instances in which the Shulchan Aruch changed his mind, this is not one of those instances, since he writes himself that the law is different in the two cases (Yoreh Deah 121:4). So, what is the difference?

To explain the decision of the Shulchan Aruch, we find three approaches among the early acharonim.

First approach — contradictory Mishnayos!

The most common approach is based on a passage of Gemara toward the end of mesechta Avodah Zarah. A Mishnah in Zevachim seems to dispute one of the principles that I explained above. The Torah teaches that there is a mitzvah to eat the meat of korbanos, but that there is a time limit within which they may be eaten. After the korban’s time limit has passed, the leftover meat is called nosar, literally, leftover, and must be burnt. Eating it after this time violates a serious prohibition of the Torah.

What happens to the equipment used to cook the korban? The absorbed flavor remaining in the equipment becomes nosar and the equipment must be kashered. This means, essentially, that equipment used to cook or roast kodoshim must constantly be kashered.

How does one kasher the equipment? One would think that we would apply the same rules presented by the above-mentioned Mishnah in Avodah Zarah, i.e., that which is used directly on the fire requires libun, and that which is used for cooking in a liquid medium requires only hag’alah. However, the Mishnah in Zevachim states that a grill used to barbecue a korban requires only hag’alah (Zevachim 97a). This seems to say that there is a one-size-fits-all approach to kashering – and that hag’alah can be used to kasher anything, even that which absorbed the food directly via fire. This approach does not fit the rule of kebol’o kach polto.

As you can imagine, we are not the first ones to raise this question. The Gemara (Avodah Zarah 76a) does, and provides several answers. The conclusion of the Gemara is that, when the prohibited substance was permitted at the time of absorption (as in the case of meat of a korban, which is not yet nosar), a concept that the Gemara calls heteira bala, hag’alah is sufficient to kasher it. The opposite of heteira bala is issura bala, which means that the food was prohibited at the time that the absorption took place. The Mishnah in Avodah Zarah discussing used equipment purchased from a gentile is teaching the laws regarding issura bala.

Heteira bala

Why does heteira bala create a basis to be more lenient?

Some explain this phenomenon as follows: When a prohibited substance is absorbed through a medium, such as by cooking in water, hag’alah, boiling out the non-kosher vessel, will remove all of the prohibited substance. However, when the substance absorbed directly by fire, boiling it will not remove all of the prohibited substance. Nevertheless, it does remove most of the substance. When the vessel was used to cook a non-kosher substance, non-kosher flavor absorbed into the vessel and must be fully removed. But when the absorbed substance was kosher at the time that it was absorbed, the small amount of flavor that remains after the hag’alah was never declared by the Torah to be prohibited.

Kashering from fleishig

The Gemara mentions the concept of heteira bala relative to the absorption of permitted kodoshim, which will later become prohibited nosar. It is obvious that if one has equipment that absorbed fleishig residues and one wants to make it pareve, this is a case of heteira bala and will require only hag’alah. Following the logic I explained above, this means that although the Torah prohibited cooking and eating meat and milk together, it never prohibited cooking or eating with milk the small amount of meat flavor that remains after hag’alah was performed on a spit or grill.

Here is another example that I have been asked on several occasions:

In a food service operation, pareve baking trays were mistakenly used to bake chicken or meat. One might think that kashering these trays would require libun, since the absorption was direct from the meat into the tray, without any liquid medium. However, because of the principle of heteira bala, only hag’alah is required. Again, the logic here is that the meat flavor remaining in the trays after hag’alah is not sufficient to be included in the Torah’s prohibition of basar bechalav.

Is chometz considered heteira bala?

Since chometz is permitted to be eaten anytime but Pesach, it would seem that chometz should be considered heteira bala. This would mean that kashering chometz equipment for Pesach use would never require more than hag’alah. However, we find that there is a dispute among halachic authorities whether chometz is considered heteira bala or issura bala. Those who follow the stringent approach rule that, at the time of its use, chometz is what absorbed into the walls of the pot, and chometz may not be used on Pesach. The concept of heteira bala is applicable, in their opinion, to kodoshim products since, at the time that the grillwas used, the kodoshim products were not nosar; the small remnant that is left after the hag’alah cannot be called nosar. Chometz, on the other hand, was called chometz even before it was absorbed.

Whether chometz is considered heteira bala or issura bala is very germane in practical halacha. If it is considered heteira bala, then hag’alah will suffice to kasher all items for Pesach, and one is never required to kasher items with libun to make them Pesach–dik.

How do we rule?

Both the Shulchan Aruch and the Rema (Orach Chayim 451:4) conclude that chometz is considered issura bala. Therefore, one cannot kasher a grill used for chometz through hag’alah, only with libun. However, in a case of major financial loss (hefsed merubeh), one may rely on the opinion that chometz is heteira bala (Mishnah Berurah 451:32, citing Elya Rabbah and Gra).

Now let me return to our question: Why did the Shulchan Aruch rule that kashering a treif frying pan requires libun, whereas kashering a chometz-dik frying pan requires only hag’alah? Remember that we cited a dispute between the Rashba and the Rosh whether kashering a frying pan (from prohibited substances) requires libun or merely hag’alah. In addition, we have rishonim who contend that kashering from chometz never requires more than hag’alah. Thus, we have two different reasons to rule that, germane to Pesach, hag’alah suffices to kasher a frying pan, and only one reason if we are kashering it from prohibited food. Therefore, this explains why the Shulchan Aruch follows a more lenient approach regarding Pesach than he does regarding prohibited substance (see Beis Yosef, Levush, Taz and Shach to Yoreh Deah).

A second approach – from the frying pan into the fire

Based on a ruling found in the responsa of Rav Menachem Azaryah (usually abbreviated to “the Rama”) of Fanu (Shu”t Rama miFanu #96), the following approach is suggested: When cooking in a pot, water is typically used. Thus, the absorption into the pot took place via a medium that is itself kosher, and this might be the reason why hag’alah suffices to remove the prohibited substance from the pot. Since the non-kosher absorbed into the pot via a kosher medium, it does not get into the pot’s walls as deeply as it does when there is no kosher medium, which is the case when broiling or roasting, or, for that matter, frying using treif oil. When non-kosher meat is barbecued on a grill, the non-kosher absorbs directly into the rack or spit without any medium. That is why kashering to remove the prohibited food requires libun.

Similarly, when frying treif products, animal fat was presumably used at times as the medium for frying. In this situation, the medium used was itself non-kosher, and that is why the Shulchan Aruch ruled that we require libun when kashering treif pans. On the other hand, when chometz was fried, such as when someone made French toast, the oil is not chometz. Thus, the chometz always absorbed into the pan via a non-chometz medium, which is why hag’alah is satisfactory for kashering a chometz-dik frying pan(Notes of Rabbi Akiva Eiger to Yoreh Deah; Notes of the Chasam Sofer to Orach Chayim; Shu”t Chasam Sofer, Yoreh Deah #111; Machatzis Hashekel, Orach Chayim; Aruch Hashulchan, Yoreh Deah 121:11).

There are practical halachic differences regarding which approach we follow. According to the second approach, if we are certain that vegetable oil was always used when frying non-kosher meat, there would be no requirement to kasher with libun; hag’alah would suffice. This distinction would not exist according to the first approach.

There is another possible difference in practical halacha in the other direction. I mentioned above that, according to the Rashba, kashering a treif deep fryer may be done with hag’alah. However, it would seem that the Rama of Fanu would require libun, since the oil that was used was presumably some type of non-kosher, melted animal fat.

A third approach

Before I explain the third approach, I need to provide another introduction. A vessel that was used primarily with liquid, but on occasion was used without any liquid but — does it require libun to kasher it, because of the absorption that happened during the times that it was used without liquid, or may we be lenient to kasher it with hag’alah, since that is how it was used most of the time. This subject is disputed by the rishonim, Rabbeinu Tam, the Ra’avad (both on Avodah Zarah 76a) and others contend that this item must be kashered through libun, whereas the Ramban (op. cit.) rules that hag’alah is sufficient. This latter approach is called rov tashmisho, meaning that an item need be kashered only according to its primary use. (Because of space constraints, I will have to defer the explanation of this dispute to another time.)

Some acharonim explain the Shulchan Aruch’s reason for drawing a distinction between kashering a frying pan from chometz for Pesach, where he required only hag’alah, and kashering a treif frying pan, where he required libun, is because a kosher frying pan is used for many purposes, sometimes with water, sometimes with oil, and only upon rare occasion does all the oil burn off. Therefore, since rov tashmisho is with a liquid medium, hag’alah is sufficient. However, a frying pan that is used for treif is probably used most of the time for frying with melted animal fat, and most of the time the oil burns off. Therefore, the concept of rov tashmisho requires that the pan be kashered through libun (explanation of the Rama of Fanu presented by Pri Megadim, Orach Chayim 451:16 in Mishbetzos Zahav).

Conclusion

This article has provided a small introduction to some of the ideas of kashering. We now have a bit of understanding concerning a complicated halachic issue, with all sorts of ramifications. We can now get a sense of how much one’s rav or posek must keep in mind every time he answers one of our inquiries. Certainly, this is a time to appreciate his scholarship and his making himself available to us when we need him.

There is an old custom, mentioned by the Rema, of eating cheese on Chanukah…

Question #1: Is whey milky?

Is whey milchig min haTorah?

Question #2: Non-kosher?

Does milk contain anything non-kosher?

Question #3: Is whey cheese?

Can whey be prohibited as gevinas akum?

Question #4: Chalav akum

Can whey be prohibited as chalav akum?

Introduction

Hashem made cow’s milk with all the nutrients for a newborn calf to grow big and strong, until it is ready to be self-supportive by mowing the lawn – a very useful business model, since bovines are capable of converting grass into protein and the other nutrients they require, a skill that carnivores and omnivores have yet to learn. The major components of milk are casein and other proteins; cream (the fat component); lactose (milk sugar, the carbohydrate), vitamins and various other nutrients, including calcium, for healthy bones; and about 90% water, which dissolves what it can and keeps the other components in suspension.

Suspense

Cheese is produced by introducing either rennet or an acid into milk, which causes most of the suspended fat and protein to congeal or curd, which means to de-suspend. The coagulated part of the milk, called the curd, separates from the rest, which is the whey. Pressing the curd into a solid block causes the shaping of cheese. According to some rishonim, making this solid block on Shabbos constitutes the melacha of Boneh (Rambam, Hilchos Shabbos 10:13; cf. Magid Mishnah, Hilchos Shabbos 8:7). In soft cheeses, the curd is not shaped or pressed, but eaten as is. In the case of cottage cheese, after the whey is rinsed off, a dressing of milk, seasonings and nutrients is added.

The whey of the world

When the curd is separated, the remaining liquid is called “whey.” Whey contains some protein and fat, respectively called “whey protein” and “whey cream.” After these components are separated from the whey, the remaining liquid (sometimes called “whey permeate” and referred to in the industry as “cow water”) is almost all water, but does contain lactose and some other water-soluble nutrients, including vitamins.

The Gemara (Pesachim 42a) mentions a dip commonly eaten in their era called kutach that contained an ingredient called nis’yobei dechalba, Aramaic for that which separates from the milk. Rashi identifies this component as whey. A different passage of Gemara (Chullin 111b) teaches that whey must be treated as milchig and may not be eaten with meat.

A bit later in mesechta Chullin (114a), the Gemara rules that a product called “mei chalav,” literally the water of milk, is considered milk for some halachos of the Torah, such as for certain laws of taharos, but, germane to the prohibition of consuming meat and milk together, it is not punishable as dairy min haTorah. The rishonim (Rosh; Ramban) explain that mei chalav is milchig only miderabbanan,but not min haTorah.

Allow me to explain the taharos case. For a food to become tamei, it must first come in contact with one of seven liquids: wine, honey, olive oil, milk, dew, blood or water (which is categorized halachically differently from dew). For these laws, mei chalav is considered milk; if it comes in contact with food, it makes the food susceptible to tumah. However, regarding the prohibition of consuming milk and meat together, mei chalav is not considered milk. Min haTorah it is permitted to cook mei chalav with meat and we are permitted min haTorah to consume or benefit from mei chalav that was cooked with meat.

Milk, but not milchig?!

Why should a byproduct of milk be considered milk for the laws of taharos but not for the laws of basar bechalav? The Gemara explains that, since the Torah does not state one should not cook or eat “meat in milk,” but one should not cook or eat the meat of a kid in the milk of its mother, not all milk is included in this mitzvah, only milk that resembles the milk as it leaves nanny goat.

What exactly is mei chalav that the Gemara concludes is milchig only because of a rabbinic injunction? This is disputed by rishonim. Rashi contends that it is whey, which means that, in his opinion, whey is milchig only miderabbanan. Most other rishonim disagree and identify mei chalav as what remains after the cream and protein have been removed from the whey. In other words, there is a dispute whether the term mei chalav of the Gemara is translated as “whey,” or as “whey permeate,” the liquid remaining after the whey protein and whey cream are removed.

Right of whey

Most rishonim conclude that whey is milchig only because of a rabbinic injunction (Tosafos, Ramban, Rashba, Ritva and Ran, all on Chullin 114a). For simplicity’s sake, I will refer to this approach as the opinion of Tosafos. On the other hand, the Rosh and the Tur (Yorah Deah 87) conclude that whey is dairy min haTorah.

Wrong whey

The Rosh and Tur agree with the other rishonim that germane to the laws of basar bechalav, the liquid remaining after the whey protein and the whey cream are removed, a product referred to in the industry as “cow water,” is not considered milk min haTorah. According to both approaches, that of Tosafos and that of the Rosh, we need to explain why some processed components of milk are pareve min haTorah, i.e., whey itself according to Tosafos and whey permeate according to the Rosh.

Wheyward

Tosafos presumably contends that once the milk is no longer similar to the product that leaves Mom, it is no longer included under the Torah prohibition. Since whey does not appear like the milk that exits the mother, it is milchig only because of rabbinic injunction, not because of Torah law (Pri Chadash, Yoreh Deah 81:14).

The Rosh contends that as long as there is some solid component that can be curded, the product is dairy. Only a product that can no longer be curded, because it contains no protein or fat, is considered qualitatively different from milk, and is no longer dairy min haTorah, for the purpose of mitzvas basar bechalav (see also Yad Yehudah 87:18).

Whey to go

How do we pasken? The Shulchan Aruch (Yoreh Deah 81:8) rules according to the Rosh that whey is milchig min haTorah (see also Yad Yehudah 87:18), whereas the Pri Chadash (Yoreh Deah 81:14) rules according to Tosafos, that whey is milchig only because of rabbinic injunction (see also Pri Toar 81:10). Obviously, this dispute has major halachic ramifications in many types of questions. These questions relate primarily to the kashrus of ingredients, more than they affect directly any shaylos that develop in someone’s home.

Off the whey

At this point, we can address the second of our opening questions: Does milk contain anything non-kosher? This leads us to a new dispute among rishonim.

Why would we think that a component of milk is not kosher? Surprising as this might seem, a rishon, Rabbi Eliezer of Metz, disciple of Rabbeinu Tam and the author of the Sefer Yerei’im, contends that after the dairy solids have been removed from milk, what remains is prohibited as a product extracted from a living animal, which is not kosher. In other words, in his opinion, “cow water,” or the mei chalav remaining after the whey protein and whey cream are removed, is not kosher, even if the milk was originally chalav Yisrael.

Allow me to explain. Why is milk kosher? Is it not derived from a living animal, and an animal may not be consumed until it undergoes proper shechitah? Thus, in essence, milk should be treated as a product of a non-kosher substance, and products of non-kosher substances are usually not kosher!

We are not the first to raise this question. It is asked by the Gemara (Bechoros 6b), which proves from pesukim that milk is kosher. However, are all components of milk kosher, or only that which the Torah permitted? The Rosh (Chullin 8:51) notes that this is disputed among the rishonim. Rabbeinu Simcha rules that all components of milk are kosher and were included when the Torah declared milk to be kosher. Therefore, everything extracted from milk — lactose, vitamins, minerals, antibodies, casein, whey, etc. – are kosher, according to Rabbeinu Simcha.

However, the Rosh quotes a disputing opinion that contends that not all dairy components were permitted by the Torah. In our texts of the Rosh, this opinion is attributed to the Rambam. The Ma’adanei Yom Tov notes that, since there is no evidence of this position held by the Rambam, it must be that this opinion was the Ramban’s and that there is a textual error in our edition of the Rosh (see also Pri Chadash, Yoreh Deah 81:14 and Pri Toar 81:10, who similarly attribute this opinion). Later authorities note that there is no evidence that the Ramban holds this way either, but there is ample evidence that the Yerei’im held this way, since he states so in three different places (Mitzvos 63, 81, 312) and explains his position very thoroughly. Since Rabbi Eliezer of Metz’s name is often abbreviated (in Hebrew) to “Re”m” (רא”ם), later authorities believe that the Rosh attributed this position to רא”ם, but this was mistakenly transcribed (remember that these were all originally manuscripts and hand-transcribed from one copy to another) with the א dropped, whence it became ר”ם, which is often used as an abbreviation for either Rambam or Ramban.

The Yerei’im asks on his own opinion: How can it be that it is permitted to drink milk, but when you remove the proteins and fats, what remains is prohibited? The Yerei’im answers that a similar conundrum exists germane to the blood in meat, which is prohibited only when it is extracted from the meat, or when the meat is cooked, which causes the blood to move around within the meat. It is permitted to eat raw meat (think of steak tartare), without salting or broiling out the blood. Thus it is not absurd that a product, such as meat or milk, is permitted when eaten in toto, but parts of it become prohibited when extracted.

How do we rule? The Shulchan Aruch (Yoreh Deah 81:5) cites the dispute between the rishonim in a way (whey?) implying that the more lenient opinion is the primary one. The Rema emphasizes this, ruling that accepted practice is to be lenient, as does the Shach.

The non-Jewish whey!

At this point, let us analyze the last two of our opening questions: Can whey be prohibited as gevinas akum? Can whey be prohibited as chalav akum?

The latter question is whether there is a potential chalav Yisrael issue in using whey that is claimed to be from a kosher species, but no Jewish person supervised the milking.

Background: The Mishnah (Avodah Zarah 35b, 39b) proscribes consuming milk that a gentile milked without Jewish supervision, a prohibition called chalav akum, out of concern that the milk may have been adulterated with milk of a non-kosher species. Although most non-kosher mammals do not allow themselves to be milked, camels, llamas, donkeys, and mares can all be milked and produce a palatable product.

There is also another rabbinic prohibition banning non-Jewish cheese, gevinas akum, mentioned by an earlier Mishnah (Avodah Zarah 29b). How does one make Jewish cheese, gevinas Yisrael, which is permitted, rather than gentile cheese? Does the cow or the milk require immersion in a mikveh and acceptance of mitzvos to become Jewish?

Among halachic authorities, we find differing opinions as to what makes cheese into gevinas Yisrael; is it (1) supervision, (2) ownership or (3) that a Jew must be involved significantly in the production of the cheese (Rema, Yoreh Deah 215:2; Shach; Noda Biyehudah, Orach Chayim 2:37). (Please note that these approaches may not be mutually exclusive.)

We should note that, according to most opinions, cheese may be produced kosher even if a Jew did not supervise the milking. This is because Chazal note that milk from non-kosher species cannot be made into cheese or butter. Thus, when a non-Jew produced cheese or butter, we can assume that he did not mix any milk from non-kosher species into the milk, since this milk would go to waste. (Those curious to read more on this topic are encouraged to read the highly entertaining responsum of the Melamed Leho’il, 2:36:2.)

The Ritva (Avodah Zarah 35b) points out that, technically, one can produce cheese from the milk of non-kosher species, but the cheese-yield from these milks is very poor. When these types of milk are treated to make curd, most of what is left of the milk becomes whey, the byproduct, not the valued cheese or butter. Thus, although it is theoretically possible to make cheese or butter from the milk of non-kosher mammals, the halacha does not require one to be concerned about this. Rather, one may assume that a gentile would not adulterate milk that he is planning to use for cheese manufacture.

It is indeed noteworthy that, while researching milk and cheese made the world over, I discovered cheeses made from the milk of cows, sheep, goats, water buffalo, reindeer and yak, all of them kosher species, and milk used from non-kosher mammals such as donkeys, mares, llamas and camels; but I found not a single variety of cheese made from non-kosher milk. Although the Ritva attests that it could be done, it is simply not worthwhile. Evidently, the non-Jewish world is familiar with this ruling of the Ritva.

It should be noted that contemporary technology has made it profitable to produce cheese products even from non-kosher species, such as camels. At the moment,  this has no halachic ramification, although, with time, this may change.

Wheys and means

As I mentioned above, there are two common ways (wheys?) to cause milk to curdle and thus produce the building blocks from which cheese is manufactured. One is by adding rennet to the milk. Most hard cheeses, such as cheddar, Swiss, mozzarella, are produced this way. However, products such as cottage cheese, farmer’s cheese, pot cheese, and baker’s cheese are made not by adding rennet, but by adding something acidic to the milk which lowers its pH. In general, these products can also be made, albeit considerably more slowly, by simply allowing the milk to curd at specific warm temperatures, a factor whose halachic ramifications we will soon discuss.

A key practical difference between the two processes is that, when using an acid to make cheese, the whey that results is inedible. One of the problems that a cottage cheese manufacturer needs to deal with is how to get rid of the huge amounts of this “acid whey” that it produces, since, by law, it is not permitted to simply dump the acid whey down the drain or into a nearby river.

On the other hand, the whey produced when making hard cheeses (i.e., by the addition of rennet) is used as a source of the whey protein and whey cream mentioned above that are very usable products.

There are interesting ramifications of this observation, at least according to some authorities. One is that there are poskim who contend that cottage cheese and similar types of soft cheeses are not prohibited as gevinas akum. A major posek in this matter is Rav Moshe Feinstein (Shu”t Igros Moshe, Yoreh Deah 2:48), in a famous responsum directed to Rav Shimon Schwab. Rav Moshe writes that it is unclear whether gevinas akum applies to a product, like cottage cheese, that can be manufactured without adding anything to cause the milk to curd. Rav Moshe therefore concludes that, although someone should use only cottage cheese that is gevinas Yisrael, there is no responsibility to teach people that it is prohibited to eat cottage cheese that is not gevinas Yisrael.

As mentioned above, the whey that is a by-product of cottage cheese is inedible. Whey made from rennet-set cheese, such as Swiss cheese, are consumable, and often involves another halachic concern. If this whey is the by-product of a production of gevinas akum or other non-kosher cheese, it is often cooked together with the cheese in the course of the production. This means that the whey might be prohibited because it has absorbed taste from non-kosher cheese.

We can ask this question even from cheeses that are not cooked, if the whey sits with the curding cheese for 24 hours, in which case the halachic principle called kavush applies, meaning that the whey absorbed taste from the non-kosher cheese even if no heat was used during production.

For reasons beyond the scope of this article, there are very prominent authorities who permit the use of this whey, anyway (anywhey?) [Shu”t Igros Moshe, Yoreh Deah 3:17], but accepted practice is to be stringent.

Conclusion

In this article, we examined several interesting topics, including many different kashrus aspects. This certainly provides an incentive to become kosher consumers who have a better understanding of the many aspects of the preparation of kosher food. It also teaches why it is important to ascertain that everything one consumes has a proper hechsher, and that a proper hechsher requires a lot of knowledge of kashrus manufacture, halacha and yiras Shamayim. We should always pray that the food we eat fulfills all the halachos that the Torah commands us.

Introduction

Parshas Re’eih discusses at length many of the laws of kashrus. In the contemporary world, many kashrus issues concern gelatin, a product unfamiliar to those of us who are not chemists, food technologists or kashrus professionals.

To the biochemist, gelatin is studied in organic chemistry. To the food technologist, it is an ingredient with a wide range of applications. To the nutritionist, gelatin is an incomplete protein. To a manufacturer, it spells tremendous profit. To the kashrus supervisor, it can present a potential nightmare. It is available in a kosher variety, but another form might be treif min haTorah.

Whether the gelatin that is available in kosher form is considered fleishig or pareve will depend on which posek you ask. And then there is gelatin that is certainly kosher and pareve.

Let us begin with a bit of an explanation of what gelatin is.

What is gelatin?

Gelatin, which is usually odorless, translucent, and almost colorless is derived from collagen extracted and processed from the connective tissue and skins of animal body parts, particularly the bones and hide of pigs, cattle and fish. Collagen is an incomplete protein containing most of the essential amino acids, but missing the amino acid tryptophan and with insufficient quantities of several of the others to be a complete protein. In other words, no one can rely exclusively on gelatin for their protein source.

In today’s world, the most common sources for gelatin are pigskin and beef hides, although it is also manufactured from fish scales and skins.

Gelatin includes many similar compounds with specific qualities and characteristics. Sometimes, the source of gelatin can be determined by chemical testing.

The raw materials from which gelatin is derived are prepared by various curing, acid, and alkali processes employed to extract the collagen. The different processes may have great effect on the properties of the final gelatin products, as does the original source of the collagen. In other words, gelatin is not a specific chemical compound but a raw material.

Gelatin is usually stored and shipped as a powder. When it is used, significant amounts of water are added. Gelatin absorbs five to ten times its weight in water and forms a gel.

Gelatin is probably the most popularly used gelling agent in food, beverages, candies, capsules, etc. Among the many food products that often use gelatin are puddings, candies, ice cream, sour cream, yogurt, soups, broths, sauces, flavors, vitamins and marshmallows. It is also used to remove the pulp or sediment from wines and juices.

P’tcha

Boiling animal feet or fish bones also extracts collagen. This is what produces the gelatinous, fatty layer when making p’tcha.

“Vegetable gelatin”

There is no such thing as vegetarian or vegan gelatin, although there are vegan gelatinous substances, such as carrageen, agar, pectin, arrowroot, guar gum, and xanthan gum. The latter are all derived or processed from vegetable sources, but their use, in general, is more limited than that of gelatin.

Although there are literally hundreds of varieties of gelatin, from a kashrus perspective, there are five different categories. I will list them from the most kosher to the least.

I. Fish gelatin

Gelatin can be manufactured from a wide variety of fish sources, some of them kosher but many of them non-kosher.

Contrary to popular opinion, this gelatin was known hundreds of years ago and is discussed in teshuvos from early acharonim. However, since modern gelatin manufacture used other, non-fish sources that produce a more versatile product, the modern gelatin industry did not produce gelatin from fish until a few decades ago. This gelatin does require proper kosher supervision and certification for a variety of reasons, including guaranteeing that it is derived exclusively from kosher fishes, that only kosher equipment and raw materials are used, etc. Today fish gelatin is readily available and is used, although it is a tiny percentage of the gelatin market.

II. Beef gelatin from kosher slaughtered animals

Gelatin produced from beef bones and hides of animals that were properly shechted and kashered. As mentioned above for fish gelatin, these products require kosher certification. There is a question whether this product is fleishig or can be considered pareve. The primary reason why this beef-based product might be considered pareve is because it is not produced from the meat of the animal, but from parts that are not usually considered edible. There is also the possibility that, once the gelatin is used in the finished product, it is bateil, and that therefore the finished product is ruled pareve. Those who are interested in researching the details of the halachic rulings on this subject are referred to Shu’t Igros Moshe, Yoreh Deah 1:37; Shu’t Mishnas Rabbi Aharon 1:16.

III. Beef gelatin but not kosher salted

A third, interesting product is a gelatin made from shechted animals, as described above, but that was not kashered, meaning the bones were not soaked and salted to remove the blood. Instead, the blood was removed chemically during the processing of the gelatin. To the best of my knowledge beef gelatin from shechted animals that are soaked and salted is currently not an available product.

IV Beef bone gelatin

Of course, gelatin is produced from non-kosher-slaughtered beef bone and hide. This variety of gelatin generated the most halachic literature, since several major halachic authorities ruled that this product is kosher, notwithstanding its origin from a treif animal. Many products labeled as “kosher gelatin” products, which are not treated today as kosher by most kashrus organizations, are based on this heter.

The halachic reasoning in this case can be simplified, without going through all the sources and literature on the topic, thanks to a brilliant analysis of Rav Aharon Kotler (Shu’t Mishnas Rabbi Aharon, 1:17). Some sources in Chazal indicate that there is no Torah prohibition in consuming non-edible parts of an animal that was not shechted. Why is this permitted?

A. Is it because these parts of the animal are not included in the Torah’s prohibition of eating meat from a treif animal?

B. Or is it because, althoughthe Torah prohibits eating such animal parts, consumption of inedible items is not considered eating?

Although this might seem like doubletalk, it is not. Rav Aharon notes the halacha of an inedible product subsequently processed into an edible one depends on these two ways of understanding this issue. And this is exactly what happens in the processing of gelatin. If argument A is correct, inedible collagen sources were never included in the Torah’s prohibition. Thus, if indeed it is true that the gelatin was manufactured exclusively from parts of the animal that are usually not considered food, the finished, now edible, product is indeed kosher.

However, if the Torah’s heter is that consuming items that are not normally treated as food is not considered eating, once the collagen is rendered into an edible product, consuming the resultant gelatin is prohibited.

After a lengthy analysis of the halachic sources, Rav Aharon Kotler himself concludes that rule B is the correct conclusion, although he recognizes that many prominent authorities did not understand the topic the way he did. Upon this basis, we can understand why many prominent authorities permitted the consumption of gelatin from non-kosher bovine animals, but why this heter is no longer commonly accepted.

V. Porcine gelatin

A common source of gelatin in contemporary manufacture is from pork skin, bone and other offal. Most halachic authorities did not consider this product to be kosher for a variety of reasons, including that the most common source material, pigskin, is considered edible food according to halacha. (In fact, it is fried into a high-cholesterol snack food often marketed as a tastier alternative to potato chips.) Nevertheless, there have been several prominent rabbonim who ruled that this gelatin is kosher based on the following reasons:

–          In the process of removing the collagen from its source, the skins and other offal are subjected to strong acid and other treatments that render them inedible.

–          Gelatin itself has no taste, and therefore it is not included in the Torah’s prohibition. This argument is a bit specious, because industry experts and consumers will tell you that gelatin does have a mild taste.

–          In today’s world, the source material for gelatin is not usually considered food on its own.

The majority of accepted halachic authorities do not accept these arguments and consider porcine gelatin to be non-kosher. Nevertheless, one still finds today some products that are labeled as “kosher gelatin” based on these analyses. The official position of the Israeli Chief Rabbinate to this day is to allow products with porcine gelatin, but they must be carefully labeled that they are kosher only by those who have accepted the heter to consume gelatin.

In other words, when purchasing “kosher gelatin,” a consumer may have no way of knowing which type of gelatin he is purchasing. The consumer is relying on the hechsher’s standard. If the hechsher accepts only types I or II, the gelatin will be accepted by all rabbinic authorities.

Conclusion

In the “good old days” of the European shtetl, kashrus was completely the province of the local rav, who oversaw the local shochatim and was available to answer any questions that occurred regarding kashering meat, accidental mixing of dairy and meat products, production of local wines, etc. Most raw materials were readily identifiable and, if any kashrus issues surfaced, the local rav was the source of the answer.

How different is today’s world in which raw materials can be sourced from literally any place on the planet, processed in numerous other locations, and the final product manufactured in a different continent. For example, gelatin is manufactured literally anywhere around the world. As a result, we need to have access to a rav who is an impressive talmid chacham, and, in addition, either he or we need access to a highly knowledgeable kashrus expert or agency.

Since there is an allusion to the prohibition of bishul akum in this week’s parsha:

Question #1: Artichokes

In most places, artichokes are eaten cooked, but Egyptians eat them raw. Do artichokes cooked in Egypt present a bishul akum concern in America?

Question #2: Bishul akum equipment

If a non-Jew cooked kosher products in my pots, do the pots now require kashering?

Question #3: Cooking for the ill

If a non-Jew cooked on Shabbos for someone who is ill, must I treat the food as non-kosher when Shabbos is over?

Historical Background

Based on a pasuk, the Gemara (Avodah Zarah 37b) suggests that the prohibition of bishul akum, banning food cooked by non-Jews, might be min haTorah. Subsequently, the Gemara rejects this assumption, concluding that bishul akum is a rabbinic injunction that was not yet prohibited when the Jews traversed the Desert. Nevertheless, Rabbeinu Tam infers that bishul akum was enacted very early in Jewish history; otherwise, how could the Gemara even consider that it might have a Biblical origin (Tosafos, Avodah Zarah 37b s.v. Vehashelakos)?

Chazal instituted the law of bishul akum to discourage social interaction, which might lead to intermarriage, and also to guarantee that kashrus is not compromised (Rashi, Avodah Zarah 35b s.v. Vehashelakos and38a s.v. Miderabbanan, and Tosafos ad loc.).

Introduction

Before we can address our opening questions, we need to understand some of the basic laws of bishul akum. Although Chazal enacted a prohibition on food cooked by non-Jews, they permitted three categories of food; in all three of these instances, the social interaction considerations are mitigated. Here is an easy acronym by which to remember these three rules:

YUM – Yisrael, Uncooked, Monarch

Yisrael:

An important rule is that even if a non-Jew performed most of the cooking, as long as a Jew participated in a significant way, the food is permitted as “bishul Yisrael.” The reason that Chazal were lenient is because the social interaction that they wanted to discourage is decreased when the cooking is dependent on a Jew’s involvement.

The level of Jewish participation required is a dispute among rishonim that manifests itself in practical differences between Ashkenazic and Sephardic practice.

In Ashkenazic practice, if a Jew ignites or adds to the fire used for cooking, the food qualifies as bishul Yisrael, even if a non-Jew added the ingredients and did all the actual cooking. On the other hand, Sephardic Jews require direct involvement of a Jew in the actual cooking. This means that a Jew must place the food on the fire or participate in some other significant way. Simply igniting the fire upon which a non-Jew places food is insufficient to make the food kosher (Shulchan Aruch, Yoreh Deah 113:7).

These differences in interpretation are particularly relevant in situations involving restaurants, caterers and other food service, where the kitchen help is frequently non-Jewish. In some instances, Sephardic authorities permit the food, after the fact, based on a combination of leniencies (Shu”t Yechaveh Daas 5:54).

Uncooked:

Foods that are consumed raw are exempt from the prohibition of bishul akum. The reason for this exception is because the respect and social interaction is decreased when the food served is edible without cooking.

This exemption of “uncooked food,” which is called ne’echal chai, applies to items like applesauce or canned pineapple, as both apples and pineapples are eaten uncooked. However, in some cases there are disputes among halachic authorities as to whether a specific food is considered edible raw or not.

What is the halacha if a particular vegetable is commonly consumed uncooked in one country, but not in another? For example, artichokes are commonly eaten raw in Egypt, but not in Spain, although both countries grow them for export. Are artichokes cooked in Spain prohibited as bishul akum, but those grown in Egypt are not? Assuming that artichokes cooked in Egypt are not prohibited as bishul akum, do cooked Egyptian artichokes become prohibited upon being shipped to Spain or somewhere else where they are always eaten cooked? Indeed, this is the ruling of the Kaf Hachayim (Yoreh Deah 113:20). However, there are authorities who disagree with this ruling, contending that the prohibition of bishul akum must take effect at the time that the food is cooked. Since, in Egypt, artichokes are eaten raw, cooking them in Egypt does not prohibit them as bishul akum, the subsequent shipping cannot make them prohibited. Of course, this approach creates the rather anomalous ruling that cooked artichokes in Spain are prohibited as bishul akum if locally cooked, but permitted if imported from Egypt!?

Certainly, styles of food preparation also change. For example, until relatively recently, broccoli or cauliflower were always served cooked and would have involved bishul akum. Contemporarily, both are commonly served as a raw vegetable, with the result that even when cooked they are no longer prohibited as bishul akum.

Similarly, the popularity of sushi, sashimi and similar Japanese dishes outside Japan influences whether various types of fish that are now eaten raw will be prohibited if cooked by a non-Jew.

Another food that has changed are carrots. Our European grandparents and great-grandparents never ate raw carrots, which would have made them (the carrots, not the grandparents) subject to bishul akum considerations.

Monarch:

Bishul akum applies only to foods that one would serve on a king’s table. Less prominent dishes are exempt, since they are unlikely to lead to improper social interactions. The Gemara refers to this as oleh al shulchan melachim lelafeis bo es hapas, literally, served on a king’s table to be eaten together with bread. However, this definition, also, may depend on what form the particular food has and on what is considered appropriate to eat at a gourmet meal. At one point, potatoes were considered poor people’s food and would never be served at a respectable event. For this reason, some prominent authorities exempted them from the prohibition of bishul akum. Since, in today’s world, potatoes are served at weddings and other fancy events, they certainly can be forbidden as bishul akum.

There are other interesting issues regarding potatoes. Although nothing harmful will happen to those imbibing raw white potatoes or sweet potatoes, few people eat them that way. Thus, we may arrive at an interesting conclusion: expensive cuts of fish may be exempt from bishul akum regulations because they are now considered edible raw, whereas the far more humble potato is included in bishul akum regulations because it is not eaten raw.

Of course, this brings us to the question of whether potato chips are included in the prohibition of bishul akum. I find more acceptable the opinion of those who rule that, since potato chips are not served at state dinners and other upper-class events, they are exempt from bishul akum concerns, although I am aware that there are halachic authorities who insist that potato chips be bishul Yisrael.

Bishul akum equipment

At this point, let us examine the second of our opening questions: If a non-Jew cooks kosher ingredients in my pots, do the pots absorb non-kosher bishul akum? Must the pots be kashered before they are used again, or does bishul akum only ban food but not pots?

We find a dispute among rishonim, some contending that since bishul akum was limited to circumstances that encourage social interaction, the taste of bishul akum that is absorbed into pots was not included in the prohibition. Thus, equipment that cooked bishul akum does not require kashering (Bedek Habayis, Bayis 3, Shaar 7; Rosh, quoted by the Tur, Yoreh Deah, end of Chapter 113, and by Rabbeinu Yeruchem).

The detractors

Others contend that any time food becomes prohibited because of a rabbinic edict, the equipment used to cook it also becomes prohibited and requires kashering (Mishmeres Habayis, Bayis 3, Shaar 7). This is based on a general ruling, kol detikun rabbanan ke’ein de’oraysa tikun (Pesachim 30b, 39b et al), “whatever the Sages established, they followed a system similar to those governing Torah laws.” Many prohibit using equipment until they are kashered, even if non-Jewish servants or employees cooked for themselves in a Jew’s house. According to this approach, to avoid prohibiting the pots when non-Jewish workers cook for themselves in a Jewish house, you must make sure that someone Jewish participates in the cooking in a way that avoids the prohibition of bishul akum (Tur end of Yoreh Deah 113, quoting theRashba).

Earthenware pots

When the Ran discusses this dispute, he conceptually agrees with the lenient approach, but concludes that the equipment should be kashered (Shu”t Haran 5:11-12). This leads to a new question. Metal pots can be kashered by hag’alah, boiling them, but most pots in earlier generations were made from earthenware, a more available and less expensive material, which the Torah implies cannot be kashered. If bishul akum food was cooked in an earthenware pot, the Ran concludes that it should be broken, since it cannot be kashered (see Pesachim 30b; Avodah Zarah 33b-34a).

This last ruling of the Ran is curious, because the Rashba, who ruled that bishul akum does require kashering the equipment used to cook it, permitted kashering earthenware pots used for bishul akum by boiling them three times, called hag’alah shalosh pe’amim (quoted by Tur Yoreh Deah 123 and accepted by the Shulchan Aruch, Yoreh Deah 113:16). The basis for this heter is a passage of Talmud Yerushalmi (Terumos 11:4), which states that earthenware used to cook food prohibited only rabbinically may be kashered by boiling the vessel three times.

Halachic conclusion

The Beis Yosef and the Shulchan Aruch mention both opinions, whether bishul akum requires that the equipment be kashered. The Shulchan Aruch concludes it must be kashered.

Cooking for someone who is ill

Now, let us examine the third of our opening questions: “If a non-Jew cooked on Shabbos for someone who is ill, must I treat the food as non-kosher when Shabbos is over?”

Allow me to explain the issue. If someone is ill, we are permitted to have a non-Jew cook for the sick person. This may be done, even if no life-threatening emergency exists, as long as the person is ill enough to be choleh kol gufo, usually defined as someone ill enough to go to bed (Shulchan Aruch, Orach Chayim 328:17), or whose discomfort is intense enough that he feels that his entire body is affected (Rema ad locum).

With this halacha in mind, we need to address the following question: If a non-Jew cooks on Shabbos for someone who is ill, is the food he cooks prohibited because of bishul akum? As I will discuss shortly, the ill person may eat the food cooked on Shabbos by the non-Jew, but may someone who is healthy eat the food? For that matter, may the ill person, himself, continue to eat it after Shabbos, when now someone Jewish can cook for him? According to those who rule that bishul akum prohibits the pots and other equipment used, do we need to kasher the equipment used by the non-Jew to cook on Shabbos?

These shaylos have major ramifications for hospital and nursing home kitchens. In theory, they are permitted to have non-Jews cook on Shabbos for the benefit of their patients who qualify either as choleh she’yeish bo sakanah or as choleh kol gufo. (Visitors or those attending the cholim would not be permitted to eat the food cooked on Shabbos.) If the heter to cook on Shabbos for the ill is not included in the prohibition of bishul akum, the cooked food may be eaten after Shabbos, both by the ill and by visitors and staff. On the other hand, if the food is considered bishul akum, the food may not be consumed after Shabbos. Furthermore, the equipment in the kitchen has become non-kosher and now requires kashering, notwithstanding that it was permitted to have the non-Jew cook in it on Shabbos!

Exclusion or medical exemption?

To answer these questions, we should realize that there are different ways of looking at the heter that permits a sick person to consume food that would otherwise be prohibited as bishul akum.

Exclusion:

One approach understands that any food cooked on Shabbos for a person who is ill was excluded from the prohibition of bishul akum. If we understand the halacha this way, anyone may eat it after Shabbos, and the equipment does not need kashering.

Medical exemption:

A differing approach understands that Chazal permitted someone ill to consume food that would otherwise be prohibited as bishul akum. This is a temporary exemption created to allow those who are ill to have hot, freshly cooked food on Shabbos. When Shabbos is over and fresh food can now be cooked by someone Jewish, the prohibition of bishul akum starts again, even for those for whom it was originally cooked. According to this opinion, after Shabbos, the food already cooked becomes prohibited for anyone to eat, even those for whom it was originally cooked. In addition, the equipment used to cook the food on Shabbos needs to be kashered.

The rishonim debate this matter, some contending that since it was permitted to cook and eat this food on Shabbos, it remains permitted. Furthermore, the fact that a healthy person is not permitted to eat it is because of the laws of Shabbos – we are concerned that someone may ask the non-Jew to do something on Shabbos that is not permitted, but not because of the laws of kashrus. Since the cooking was not performed for social reasons, but to have fresh food for the ill, no prohibition of bishul akum was involved at the time that the food was cooked. Therefore, it does not become prohibited as bishul akum after Shabbos is over, even for a perfectly healthy person (Bedek Habayis, Bayis 3 Shaar 7).

Others disagree with every point that was just made. They compare the food cooked for an ill person on Shabbos to the situation of a person who is deathly ill and requires fresh meat which is unavailable. The halacha in this situation is that, if no shocheit is available, you are required to kill an animal, rendering its meat neveilah, and cook it for the sick person. As soon as a shocheit becomes available, you are no longer permitted to feed the sick person non-kosher food. Of course, the pot in which the neveilah was cooked must be kashered.

Similarly, although it is permitted to have a non-Jew cook for someone who is ill, the food may be eaten only by the ill and only until fresh food is cooked after Shabbos. Once that time arrives, the food cooked by the non-Jew becomes prohibited as bishul akum, even for a sick person, and it certainly was never permitted for someone well to eat it. In addition, the pot used by the non-Jew to cook for the ill on Shabbos is prohibited because of the bishul akum, and must be kashered.

Returning to our question about hospital and nursing home kitchens: If they were to permit non-Jews to cook on Shabbos, this last opinion requires that all food cooked on Shabbos must be disposed of on motza’ei Shabbos, and the entire kitchen might require kashering every week!

How do we pasken?

The Rema and the Shach conclude that the food is permitted after Shabbos, even for a healthy person to eat, whereas the Taz, Mishnah Berurah (328:63) and others rule that it is prohibited, even for the ill person to eat, once food cooked by a Jew becomes available.

Conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this context, we can explain the vast halachic literature devoted to understanding this particular prohibition, created by Chazal to protect the Jewish people from major sins.

Photo credit: Vectonauta on Freepik