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.
