chalav yisrael – RabbiKaganoff.com

The Milky Whey

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.

Chalav Yisrael and Powdered Milk

According to the midrash quoted by Rashi, the baby Moshe refused to nurse from non-Jewish women, although this is not the way we use the term Chalav Yisrael in this article.

Question:

Dr. Levy asks me the following: “Friends of ours keep chalav Yisrael, but they will use foods made with non-chalav-Yisrael powdered milk. But I know from my professional work that one can purchase powdered mare’s (female horses) and camel’s milk – they are considered specialty items. So, why is there any difference between using non-chalav- Yisrael powdered milk and non-chalav Yisrael fluid milk?”

The Mishnah (Avodah Zarah 35b, 39b) proscribes consuming milk that a gentile milked unless a Jew supervised the milking, a prohibition called chalav akum, out of concern that the milk may have been adulterated with milk of a non-kosher species. In a different article (The Milky Whey), I noted that there are several opinions as to how to define the prohibition. The most lenient approach is that of the Pri Chodosh (Yoreh Deah 115:15), who understands that one needs to be concerned about chalav akum only when the non-kosher milk is less expensive than the kosher variety, or it is difficult to sell. However, when kosher milk is less expensive, the Pri Chodosh contends that one does not need to be concerned that the gentile would add more expensive specialty non-kosher milk into regular, kosher milk.

On the other side of the spectrum, the Chasam Sofer maintains that the prohibition has a halachic status of davar shebeminyan, a rabbinic injunction that remains binding, until a larger and more authoritative body declares the original sanction invalid, even when the reason the takanah was introduced no longer applies (see Beitzah 5a). Since a more authoritative beis din never rescinded the prohibition on unsupervised gentile milk, consuming this milk involves a serious violation. The Chasam Sofer requires that a Jew must be able to observe the milking, and if not, the produced milk is completely non-kosher because of the rabbinic injunction, even when the non-Jew has no incentive to adulterate the product.

In between these two positions, there is the opinion of Rav Moshe Feinstein and the Chazon Ish (Yoreh Deah 41:4) that in a place where non-kosher milk commands a higher price than kosher milk, it is still prohibited to use non-supervised milk. However, Rav Moshe understands that the takanah did not specifically require that a Jew attend the milking, but that one is convinced that the milk has no admixture of non-kosher. However, whenever it is certain that the kosher milk is unadulterated, halacha considers the milk “supervised” (Igros Moshe, Yoreh Deah 1:47).

How can one be certain? The Mishnah recommended an obvious way: have a Jew nearby who may check at any moment. Of course, this method is not foolproof, but halacha did not require more.

Is there another way that one can be certain? Allow me to use my own example to explain Rav Moshe’s approach. Dr. Levy, our questioner, runs laboratory tests on a sample of unsupervised milk and concludes, with absolute certainty, that it is 100% sheep’s milk. However, no Jew supervised the milking. Is the milk kosher?

According to Rav Moshe’s analysis, this milk is certainly kosher, since we can ascertain its source.

In his earliest published teshuvah on the subject, Rav Moshe explained that when the government levies fines for adulteration of cow’s milk, the fear of this fine is sufficient proof that the milk is kosher. In later teshuvos, he is very clear that other reasons why we can assume that the milk is kosher are sufficient proof, including that normal commercial enterprises assume that standard milk is bovine milk (Igros Moshe, Yoreh Deah 1:48, 49).

Being stringent

Although Rav Moshe concludes that where one can rely that the standardly available milk is kosher there is no prohibition of chalav akum, he still rules in a different teshuvah that a chinuch institution should use only chalav Yisrael products, even if all the children come from homes that do not use chalav Yisrael exclusively. He contends that part of chinuch is to show children that one follows a stricter standard, even when halacha does not necessarily require one.

Powdered milk

We can now address the question mentioned above: “Friends of ours keep chalav Yisrael, but they will use foods made from non-chalav-Yisrael powdered milk. But I know from my professional work that one can purchase powdered mare’s and camel’s milk – they are considered specialty items. So, why is there any difference between using non-chalav- Yisrael powdered milk and non-chalav-Yisrael fluid milk?”

Those who allow use of non-chalav-Yisrael milk powder follow the opinion presented by Rav Tzvi Pesach Frank, Rav of Yerushalayim until his passing a little over sixty years ago and one of the greatest poskim of his era. Rav Frank assumed that the halacha follows the Chasam Sofer, who requires Jewish supervision to permit the non-Jewish milk, and did not accept the heterim of the Pri Chodosh, nor that of the Igros Moshe and the Chazon Ish. Nevertheless, Rav Frank permitted powdered milk from an unsupervised gentile source, for a very interesting reason.

The poskim permit using cheese that is gevinas Yisrael and butter, even when these products are made from unsupervised milk. (I discussed both of these topics in other articles — How Do We Make Kosher Cheese?, and The Great Cottage Cheese Controversy). Why did they permit this? Because non-kosher milk is low in casein, and, therefore, it does not curd, which is the first step in producing cheese. It is also low in milkfat (also called butterfat or cream), which makes it nonprofitable to make butter from non-kosher milk. (Those curious are invited to read the highly entertaining responsum of the Melamed LeHo’il, 2:36:2, on this topic.) For these reasons, even in the days of Chazal, one could assume that a gentile would not add non-kosher milk when he intends to produce either cheese or butter, and therefore, these items were excluded from the prohibition of chalav akum.

May powdered milk be treated like cheese and butter?

Rav Frank notes that there is a qualitative difference between cheese and butter, on the one hand, and powdered milk, on the other, in that there is an inherent difficulty with making cheese and butter from non-kosher milk, whereas one can easily powder any milk. (This is precisely Dr. Levy’s question I mentioned above.) Thus, one could argue that the leniency that applies to cheese and butter should not apply to milk powder.

However, Rav Frank quotes the Ritva (Avodah Zarah 35b) who pointed out that, technically, one could make cheese even from non-kosher species, but the cheese yield from these milks is very poor, and when the milk curds, most of it becomes whey. Thus, although it is theoretically possible to make cheese or butter from non-kosher milk, the halacha does not require one to be concerned about this. Rather, one may assume that a gentile would not adulterate this milk. 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 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 populace making any variety of cheese from the non-kosher milk. Thus, although the Ritva attests that it could be done, it is simply not worthwhile.

Rav Frank concludes that what permits the unsupervised milk used in cheese and butter is not that it is impossible to use non-kosher milk but that it is unlikely. Thus, he reasons, although one can powder non-kosher milk, the prohibition of chalav akum was limited to fluid milk and other products available in the days of Chazal which could be made easily from non-kosher milk. Since powdered milk did not exist in the days of Chazal, and since we are certain that standardly available powdered milk is of bovine origin, the prohibition against chalav akum does not apply to milk powder, just as it does not apply to butter and cheese.

We should note that the Chazon Ish took strong issue with Rav Frank’s position treating milk powder differently from fluid milk. The Chazon Ish contends that the lenience that applies to cheese and butter applies only because these products, inherently, are not made from non-kosher milk, a logic that does not apply to milk powder.

Thus, Dr. Levy’s friends who keep chalav Yisrael but use foods made with non-chalav Yisrael powdered milk follow the conclusion of Rav Pesach Frank, whereas those who are strict regarding milk powder follow the Chazon Ish’s approach. In Eretz Yisrael, this has become one of the major defining factors for the difference between what is called mehadrin (stricter) kashrus standard, and non-mehadrin hechsherim. The regular hechsherim allow use of non-chalav Yisrael milk powder (imported from the United States), whereas the mehadrin hechsherim use only chalav Yisrael products. (By the way, no Eretz Yisrael hechsher allows the use of unsupervised fluid milk as kosher; all hechsherim, both mehadrin and non-mehadrin, have accepted the position of the Chasam Sofer.)

Does Chalav Yisrael Apply Today?

Question #1:

Shirley mentions to her friend: “I do not understand why some people keep chalav Yisrael today. Do they really think that someone is adding pig’s milk?”

Question #2:

Muttie inquires: “My friend quoted his rav that it is more important to keep chalav Yisrael today than it ever was before. How could this be?”

Chazal (Bechoros 6b) derive from this week’s parsha a rule that whatever comes from a non-kosher species, such as eggs or milk, is also non-kosher. Thus, milk of mares, camels, llamas, donkeys or sows are all non-kosher. Still, people find chalav Yisrael a perplexing subject matter. We have all heard various authorities quoted that today use of chalav Yisrael is only a chumrah, whereas others rule that consuming non-chalav Yisrael foods is a serious infraction of halacha. The mission of this article is to provide appreciation of the issues involved. So, let us start from the beginning of the topic by understanding the origins of this proscription and then explaining the different approaches why it does or does not apply today.

Before we even begin our halachic discussion, we need some biological and food production information. The definition of a mammal is an animal that nurses its young with mother’s milk. (The Modern Hebrew word for mammal is yoneik, literally, that which nurses, meaning that the young suckles mother’s milk.) Hashem, who provides for all His creatures, custom-developed a formula that provides the ideal nourishment for the young of each mammalian species. This supplies the perfect “food pyramid” balanced diet with all the proteins, carbohydrates, vitamins and minerals that a young growing foal, cub, kitten, puppy, kid, lamb, infant or calf need to thrive and mature until they are ready for an adult diet, which in many species is when they are ready to earn their own living.

There are thousands of species of mammals, yet each species’ milk is somewhat unique. The young of kosher animals require a certain protein, called casein, in higher proportions than do the young of non-kosher animals, and therefore Hashem made kosher milk with a higher proportion of casein. Non-kosher milk, of course, also contains significant amount of protein necessary for a young growing mammal, but most of this protein is categorized as “whey protein.” (When I use the term “non-kosher milk” in this article, I will be referring to milk from non-kosher species.) Kosher milk also contains whey protein, but in much smaller proportion to the casein.

The Origins of Chalav Yisrael

The Mishnah (Avodah Zarah 35b, 39b) proscribes consuming milk that a gentile milked, unless a Jew supervised the milking, a prohibition called chalav akum. The Gemara notes that we are not concerned that the gentile is misrepresenting non-kosher milk as kosher — milk from non-kosher species looks different from kosher milk, and this would be easily identified. Rather, the prohibition is because the milk may have been adulterated with milk of a non-kosher species. The Gemara subsequently discusses how closely must the Jew supervise the milking; it concludes that, when the gentile has both kosher and non-kosher animals that could be milked, the Jew may be sitting in a place where he cannot observe the milking, provided that, should he stand up, he could. Since the Jew can stand up at any moment, we may assume that the gentile would not risk milking his non-kosher animal and losing the Jew’s business. Therefore, this milk still qualifies as kosher chalav Yisrael, milk supervised by a Jew.

On the other hand, should the gentile have only kosher species in his herd, the Gemara implies that less supervision is necessary, but it does not define exactly how much. The milking still requires the attendance of a Jew, but halachic authorities dispute the reason and purpose of the Jew’s presence. This dispute is what underlies the controversy alluded to above.

The most lenient approach

The most lenient approach is that of the Pri Chadash (Yoreh Deah 115:15), who contends that there are concerns about chalav akum only when non-kosher milk is less expensive than kosher, or when non-kosher milk is obtainable but difficult to sell. However, when kosher milk is less expensive than non-kosher, halacha has no concern that non-kosher product may contaminate kosher milk. The Pri Chadash reports that, at the time that he wrote his commentary, he was living in Amsterdam, and the vast majority of the Torah community there accepted this interpretation and drank milk sold by gentiles. He adds that he himself relied on this approach and drank the milk. The Pri Chadash explains that halacha does not require that a Jew observe the milking, nor is there any requirement to verify that non-kosher milk was not added. The Mishnah and Gemara require a Jew to supervise the milking only when it is financially advantageous for the non-Jew to adulterate milk.

Chasam Sofer’s approach

On the other hand, the Chasam Sofer (Shu”t Yoreh Deah #107) opposed any lenience to use milk from gentiles. He maintained that Chazal required that a Jew actually supervise the milking, and that this sanction remains binding, even should its rationale no longer apply, until a more authoritative body retracts it (see Beitzah 5a). Since this has never happened, consuming unsupervised gentile milk remains prohibited. The Chasam Sofer requires that a Jew observe (or be able to observe) the milking, even when no incentive exists to adulterate the product.

Risk of snake bite

Chazal (Bava Basra 110a; Avodah Zarah 27b) invoke the verse uporeitz geder yishachenu nachash (Koheles 10:8) to mean thatsomeone violating a rabbinic injunction deserves to be bitten by a snake, indicating the importance of observing rabbinic prohibitions. The Chasam Sofer writes that someone who ignores the rabbinic prohibition of chalav akum and drinks milk, relying that the gentile would not add non-kosher milk, should be categorized as a poreitz geder deservant of the punishment of yishachenu nachash.

Furthermore, the Chasam Sofer contends that even should kosher milk be cheaper than non-kosher, since the Jewish people rejected the ruling of the Pri Chadash, unsupervised dairy products are prohibited because of the laws of nedarim, vows. Since Jews do not consume chalav akum even in places where non-kosher species are not milked, it is considered that they accepted a vow to prohibit unsupervised milk. As a result, the Chasam Sofer rules that it is prohibited min HaTorah, with the full stringency of a vow, to consume unsupervised milk.

A middle road

An approach between these two positions, that of Rav Moshe Feinstein and the Chazon Ish (Yoreh Deah 41:4), who contend that in a place where non-kosher milk commands a higher price than kosher milk, it is still prohibited to use non-supervised milk. However, Rav Moshe understands that the takanah did not require specifically that a Jew attend the milking, but that one must be completely certain that the milk has no admixture of non-kosher. When it is certain that the kosher milk is unadulterated, halacha considers the milk to be “supervised” (Shu”t Igros Moshe, Yoreh Deah 1:47).

How can one be certain? The Mishnah recommended the most obvious way: have a Jew nearby who may enter at any moment. Of course, we realize that even this method is not foolproof, but it is as thorough as halacha requires.

Is there another way that one can be certain? Someone runs laboratory tests on some unsupervised milk and concludes, with absolute certainty, that it is 100% sheep’s milk. Yet, no Jew supervised the milking. Is the milk kosher?

According to Rav Moshe’s analysis, this milk is certainly kosher since we can ascertain its source.

In his earliest published teshuvah on the subject, Rav Moshe explained that, when the government fines those caught adulterating cow’s milk, the fear of this consequence is sufficient proof that the milk is kosher. In later teshuvos, he is very clear that other reasons why we can assume that the milk is kosher are sufficient proof, including that normal commercial practice is that standard milk is bovine milk (Igros Moshe, Yoreh Deah 1:48, 49). One should note that the Chazon Ish agrees with Rav Moshe’s approach. We should also note that this heter applies only where the absolute assumption is that the milk is from kosher species, but not anywhere where camel’s milk, mare’s milk or milk from other non-kosher species is commonly sold or available.

Being Stringent

Rav Moshe concludes that, even where one can rely that the standardly available milk is kosher, and there is therefore no prohibition of chalav akum, a chinuch institution should use only chalav Yisrael products, even when all the children come from homes that do not use chalav Yisrael exclusively. He notes that this is an aspect of chinuch – to teach the importance of following a stricter standard than halacha necessarily requires.

Contemporary Problem

There is another reason why some poskim require use of chalav Yisrael today. This is because of the common occurrence in the contemporary world of a veterinary problem affecting dairy cows called displaced abomasums, which is often treated in a way that may render this cow’s milk non-kosher. I will discuss this topic a different time.

At this point, we can answer Shirley’s question: “I do not understand why some people keep chalav Yisrael today. Do they really think that someone is adding pig’s milk?”

Indeed, even in the time of the Gemara, it was probably unheard of for anyone to add pig’s milk or, for that matter, for anyone to use pig’s milk, since sows are almost impossible to milk. Although most non-kosher species do not allow themselves to be milked (have you ever tried to milk a cat?), camels, llamas, alpacas, donkeys, and mares can all be milked and produce a palatable product. Contemporarily, there is extensive research at Ben Gurion University about use of antibodies found in camel’s milk for treatment of autoimmune diseases. I have been asked about using this milk, which is clearly non-kosher, but is permitted in case of a life-threatening ailment.

To answer Shirley’s question succinctly: Although we can assume that the milk on your supermarket shelf is unadulterated cow’s milk, the Chasam Sofer still rules that Chazal prohibited consuming this milk. In his opinion, this prohibition is in full effect today, even when the reason for the takanah no longer applies. Furthermore, he suggests that the prohibition to use this milk might even be min haTorah . Other rabbonim have voiced other concerns about the kashrus of unsupervised dairy cows.

Stricter than Ever?

At this point, let us examine Muttie’s question: “My friend quoted his rav that it is more important to keep chalav Yisrael today than it ever was before. How could this be?”

One obvious reason for this rav’s position is that he holds like the Chasam Sofer that using non-chalav Yisrael incurs a Torah prohibition of violating vows. Furthermore, he may feel that since being lenient on this issue is so rampant, one must demonstrate the importance of this mitzvah. He also may be concerned about the displaced abomasums problem, and holds that this prohibits the milk min haTorah.

In Conclusion

Notwithstanding that the Chazon Ish writes several reasons why unsupervised milk is permitted, he never allowed its use. Rav Moshe similarly advocates being strict, and himself did not rely on the heter. It is also well known that Rav Eliezer Silver traveled across North America by train and took his own chalav Yisrael milk with him as he went. (I have no idea why it did not spoil en route.) In conclusion, I suggest clarifying with your rav whether you should rely on using non-chalav Yisrael milk.