This week’s parsha describes how master artisans used three dyes, techeiles, argaman, and tola’as shani, in the manufacture of the Kohen Gadol’s vestments. These colors were also used to produce the curtains and coverings of the Mishkan, and the halachic conclusion is that these dyes are also used for dyeing the kohen hedyot’s belt (see Rambam, Hil. Klei HaMikdash 8:1, 11, 13, based on Yoma 6a, 12a). In addition, processing the ashes of the parah adumah (Bamidbar 19:6), purifying a metzora and decontaminating a house that became tamei all use tola’as shani (Vayikra 14:4, 49). As we will discover, correctly identifying the tola’as shani not only affects these halachos and those of the Beis HaMikdash, but also concerns a wide assortment of foods and beverages that we eat and drink.
At one point in my life, when I worked as a "rabbinic field representative" (aka a mashgiach), I once made a surprise inspection of a company that produced juice drinks – let’s call it Generic Juices Inc. I was surprised to discover that the plant was bottling beverages containing carmine red coloring, and other drinks colored with enocianina, a coloring derived from grape skins. Neither of these products was on the lists of approved ingredients, and for good reason. Of course, this created a serious problem for the hechsher, the company, and most of all, the unsuspecting consumer.
Whether we like it or not, many of our foods are colored with a host of coloring agents; some derived from food items, such as beets, berries, sugar (caramel coloring), turmeric and annatto; whereas others are derived from inedible materials such as coal or petroleum, whose sources most consumers would prefer to ignore. Although processing colorants can compromise the kashrus of the finished product, few food colors are themselves obtained from non-kosher materials. However, two common food pigments originate from non-kosher substances: One is carmine red, also called cochineal, which is a very common color used to color fruits, yogurts, juice drinks, maraschino cherries etc., and the other is enocianina, colloquially often called simply eno, a red or purple color similarly commonly used in beverages, fruit fillings and confections. The origin of carmine is from a scale insect — I discussed the kashrus ramifications in an article that I sent out on Parshas Va’eira Suffice it to say that almost all kashrus organizations treat carmine color as non-kosher.
ENO – A GRAPE SKIN EXTRACT
After the juice has been squeezed out of the grapes, the remaining skin pulp is processed into a commercial coloring agent called enocianina. Although one could produce kosher eno from kosher-processed grape skins, grape skin color available today is almost always produced after the grapes have become non-kosher and thus we usually assume that eno is not kosher. However, the prohibition here is only the rabbinic prohibition of stam yeinam, grape juice and wine product handled by a gentile.
GENERIC JUICE DRINKS
Unfortunately, Generic Juices had already produced and shipped tons of product using either carmine or eno – and all of it bearing the kosher certification symbol on the label! Is the kashrus agency halachically required to insist on a recall of the product from the supermarket shelves?
Companies hate having their products recalled, both for technical reasons, the major expense involved, and because it is a public relations nightmare. The policy of this particular hechsher was not to require the company to recall the product unless the product could not be used even after the fact, bedei’evid. However, if the product would be kosher be’dei’evid because of bitul, the hechsher would not require that the product be recalled. It was now the responsibility of the hechsher’s poskim to decide whether the product is prohibited or permitted after the fact.
Why should the finished product be kosher if the colorant added was not?
The basis for this question follows:
Coloring agents are used in very minute amounts. Indeed, when the Spaniards discovered carmine red, they sold the concentrated powdered pigment at a higher price per ounce than gold! Thus, the amount of coloring used to color a juice drink or maraschino cherry is significantly less than the amount that we usually say is bateil (nullified) in a finished product. Although one may never add treif product to a food and rely that it will become bateil, if non-kosher product was inadvertently added in minute quantities the finished product is usually permitted.
The primary criterion to determine whether the treif food is bateil is:
Can the non-kosher product be tasted, either because of its quantity or because it is a flavoring agent?
This test is passed with flying colors! None of these colors can be tasted in the finished product.
However, there is another criterion:
Is the treif product noticeable?
If one can see a treif ingredient floating inside a food, one may not consume the food without first removing the non-kosher item.
COLORS ARE NOTICEABLE
The boldness of a color announces its existence. Can we say that a color is bateil when we clearly see evidence of its existence?
Several great halachic authorities discuss this question, reaching widely different conclusions. Some prohibit consumption of the resultant product precisely because one can notice its existence (Pri Megadim, Mishbetzos Zahav 100:1; Minchas Kohen, Sefer HaTaaroves 3:3, quoted by Darkei Teshuvah 102:30). They contend that bitul can only happen when the offending item leaves no trace. A colorant is by definition very noticeable and therefore not bateil. According to this approach, all of the juice drinks mentioned must be recalled since the non-kosher ingredient is very noticeable.
On the other hand, the Vilna Gaon argues that determining whether the food is kosher depends on whether one can taste the treif ingredient (Yoreh Deah 102:6). In our instance, although the color is noticeable, no one tastes the colorant, and therefore the finished product is permitted, assuming that the admixture was made in error. An earlier authority, the Minchas Yaakov (74:5), also espouses this position.
A COMPROMISE POSITION – IN WHOLE CLOTH
Some authorities concluded a position between these two positions, comparing our question to a Gemara that discusses whether someone who stole dye and cloth and now returns the dyed fabric fulfills his mitzvah of returning what he stole. The Gemara rules that this depends on whether the dye is considered to still exist after it has been used because its color is still noticeable (Bava Kamma 101a). Is the color on the cloth treated as if the dye itself still exists, or did the dye become bateil and no longer exists?
The particular issue in that Gemara remains unresolved, and therefore halachically is considered an unresolved doubt, a safek (Shu”t HaRan #70). Based on this discussion, several prominent authorities contend that a colorant that may involve a Torah prohibition is prohibited, because of the principle of safek de’oraysa lechumra, we rule stringently in a question involving an unresolved Torah issue; whereas one that involves only a rabbinic prohibition is permitted because of safek derabbanan lekula, we are lenient regarding an unresolved question involving only a rabbinic prohibition (Pri Chodosh, Yoreh Deah 102:5; Chasam Sofer, quoted by Darkei Teshuvah 102:30).
By this time, I presume most readers want to know what the hechsher did. The deciding posek ruled like the last position mentioned, and contended that the carmine coloring might be prohibited min haTorah and therefore the company must recall the beverages containing carmine. Since the grape skin extract only involves a rabbinic prohibition, he did not require the company to recall this product, contending that according to most authorities this product may be drunk since the eno is nullified in the final mix.
We should always pray that the food we eat fulfills all the halachos that the Torah commands without resorting to any controversial shaylos.