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Food Coloring and Shabbos

Question #1: Mixing drinks

“May I mix red and white wines on Shabbos?”

Question #2: Cake decorating

“May I decorate a cake on Shabbos?”

Answer:

One of the 39 melachos, prohibited activities, of Shabbos is tzovei’a, dyeing. Tzovei’a was performed during the construction of the Mishkan when they dyed the rams’ hides red, as well as when they dyed the woolen threads used in the curtains and the clothing of the kohanim (Yerushalmi, Shabbos 7:2, referring to Shemos 25:5, 26:14, 35:7,23; 36:19, 39:34). Staining furniture, dyeing cloth or painting a rustproof finish on a metal trim (see Minchas Chinuch, Mitzvah 32:15) on Shabbos or Yom Tov all violate this melacha. Someone who paints a house on Shabbos is punishable for two different melachos, tzovei’a and boneh, construction (Tiferes Yisrael, Kalkeles Shabbos #15).

Dyeing food

The opening questions concern the following topic: May one color food on Shabbos or Yom Tov? As we will see shortly, many halachic authorities contend that the melacha of tzovei’a does not apply to edible items. Why should food be treated differently from furniture or clothing?

Egging on your mustard!

To begin, let us note a Talmudic passage that implies that tzovei’a does not apply to food. The Mishnah (Shabbos 139b) rules that one may add egg to mustard seeds on Shabbos, which the Gemara (140a) explains to mean even when the goal is for the yolk to color the mustard more yellow than it is naturally. Why is this not prohibited as dyeing on Shabbos?

An early authority, the Shibbolei Haleket (#86), explains that adding egg to mustard is permitted because of a halachic principle that he calls ein tzovei’a ba’ochlin, the melacha of dyeing does not apply to food. Because of this principle, he permits dipping bread into fruit juice on Shabbos in order to color it. Since the position of the Shibbolei Haleket is the only opinion on the subject quoted by the Beis Yosef (Orach Chayim 320), we are not surprised to find that Rav Yosef Karo, the author of the Beis Yosef, ruled in the Shulchan Aruch (Orach Chayim 320:19) that ein tzovei’a ba’ochlin, without even mentioning that some authorities reject this ruling. Because of ein tzovei’a ba’ochlin, the Shulchan Aruch permits using saffron to color food on Shabbos.

Although we have now established a halachic precedent for ein tzovei’a ba’ochlin, we still do not know a rationale why this principle should be true. Among the later authorities, we find several approaches to explain why ein tzovei’a ba’ochlin.

Dyeing is forever!

The first approach requires a bit of an introduction, because we will be comparing dyeing to other melacha activities that do not apply to food. The Gemara cites a dispute whether salting meat heavily so that it will not spoil, as was done commonly in earlier generations, violates the melacha of tanning (me’abeid) on Shabbos (Shabbos 75b). Rabbah bar Rav Huna contends that salting meat on Shabbos to preserve it for a long trip is prohibited min hatorah, whereas Rava maintains that salting meat or any other food can never violate this melacha min hatorah, a position he explains as ein ibud ba’ochlin, the melacha of tanning does not apply to food.

Both Rabbah bar Rav Huna and Rava agree that the salting of meat to remove its blood, what we call kashering, does not violate the Torah prohibition of tanning (Shabbos 75b). According to Rava, even the heavy salting done to preserve meat for months is not comparable to the salting that preserves hides, which is prohibited min hatorah. The goal of tanning hides is to make leather that will last as long as wood does, which is not the goal when salting food, even for preservation purposes.

The Chasam Sofer explains that the reason for ein tzovei’a ba’ochlin is closely related to the principle of ein ibud ba’ochlinthe melacha of tanning does not apply to food. He contends that the melacha of dyeing applies only to items that one can dye permanently (Chasam Sofer, Shabbos 75a, s.v. Rav). The coloring on food is never meant to be forever, since one’s goal is that the food is eaten.

Following this approach, we find that some authorities understand ein tzovei’a ba’ochlin in a very broad way. The Chacham Tzvi (Shu”t Chacham Tzvi 2:92) implies that the principle of ein tzovei’a ba’ochlin permits using fruit juice or other edible dye to paint one’s hands on Shabbos. Since the source of the dye is edible, as long as one does not use it to color clothing and other items where the color may set in a permanent way, it is permitted to do so. We should note that later authorities reject this broad heter of the Chacham Tzvi (see, for example, Pri Megadim, Eishel Avraham 320:25).

Rabbinic limitations

Others note that the comparison of dyeing to tanning should have us conclude that dyeing food does not constitute a violation min hatorah, because it is not permanent, but it should still be prohibited on Shabbos and Yom Tov because of a rabbinic injunction. The same is true regarding kashering meat on Shabbos. Although it does not violate any Torah prohibition, it is prohibited because of a rabbinic injunction, as noted by Tosafos (Shabbos 75b). Yet, we see that it is permitted lechatchilah to color mustard seeds with yolk on Shabbos. According to what we have just said, this should be prohibited because of a rabbinic injunction.

The Chayei Adam answers that using an item that is commonly viewed as a colorant is prohibited because of rabbinic injunction, but coloring food with an item not usually considered a colorant, such as egg yolk, is permitted lechatchilah (Chayei Adam 24:5, Nishmas Adam 24:3).

A difference in practical halacha results between the two opinions we have quoted: the approach of the Chasam Sofer, that painting food is never considered tzovei’a, and that of his contemporary, the Chayei Adam. According to the Chasam Sofer’s approach, any food coloring may be added on Shabbos, even something commonly used to add color, such as saffron. According to the Chayei Adam’s approach, ein tzovei’a ba’ochlin is limited to items that are not usually considered colorants, such as fruit juice or egg yolk. The Chayei Adam expressly disputes the ruling of the Shulchan Aruch, quoted above, who permitted using saffron on Shabbos as a food color, contending that saffron may not be used, since it is a commonly used colorant (Nishmas Adam).

Color is like flavor

There is yet a third way to understand why ein tzovei’a ba’ochlin. The Kehillas Yaakov (Shabbos #40) explains that the melacha of dyeing is violated only when one intends to create a beautiful item. One adds color to food not so that the item should be more beautiful, but to make it more appetizing to eat. As any caterer or restaurateur will tell you, serving food in a colorful and eye-catching way is an important factor in making a repast a pleasant experience. According to this approach, coloring food on Shabbos is permitted, just as one may flavor food, even if one uses a colorant, such as saffron. Thus, we can explain why the Shulchan Aruch permitted using saffron on Shabbos, either according to the approach of the Chasam Sofer or according to the approach of the Kehillas Yaakov.

On the other hand, the approach of the Kehillas Yaakov permits tzovei’a ba’ochlin only when one’s goal is to make the food more palatablee. However, dyeing food to demonstrate that the colorant creates a permanent hue desecrates Shabbos. It is prohibited, perhaps min hatorah, to use food color when your goal is to create an exhibition, and not simply to encourage people to eat (Pri Megadim; Eishel Avraham 320:25). Similarly, one may not color water when one does not intend to serve it, since the purpose of the dyeing is not to make it more attractive as a food (Chayei Adam 24:4; Tiferes Yisrael, Kalkeles Shabbos #15).

We should note that one major authority rules that the last instance of tzovei’a, mixing food color and water, is not prohibited min hatorah, but for a totally unrelated reason. The Rogatchover Gaon explains that the definition of tzovei’a requires that pigment is placed on the surface of an item, such as is done when painting or dyeing (Commentary to Hilchos Shabbos, 9:14). However, in his opinion, mixing dye with water is not placing a color atop an item, but an act of diluting pigment, and, therefore, does not qualify as tzovei’a.

Cake decorating

May one decorate a celebratory cake with various food colors on Shabbos? On the one hand, this is food that will soon be consumed, so perhaps this should be included under the rubric of ein tzovei’a ba’ochlin. On the other hand, one can argue that, in this instance, the purpose of the coloring is not to attract people to eat the cake. Rather, the decorating is to use the cake as a means of conveying good wishes to the celebrant, and the color, therefore, does not serve a food purpose. Therefore, according to the Kehillos Yaakov, this is similar to coloring food on Shabbos as part of an exhibition, which is prohibited.

Adding red wine to white

Here is another case which might be affected by the dispute why ein tzovei’a ba’ochlin. Based on a pasuk in Mishlei (23:31) that implies that red wine is preferred, the Shulchan Aruch (Orach Chayim 472:11) rules that it is preferred to use red wine for the four cups of wine at the Seder (based on Bava Basra 97b). The question is raised by early authorities: If one has reasons to use a white wine for the seder, but wants to provide a reddish tinge to fulfill this halachic preference, may he mix red and white wines together on Shabbos or Yom Tov? Is this permitted because of ein tzovei’a ba’ochlin?

The Darchei Moshe (end of Orach Chayim 320) quotes a dispute between the Agur and Rav Avraham Mintz. The Agur quotes that he heard from Rav Avraham Mintz that mixing the wines is prohibited because of tzovei’a, whereas the Agur himself permits it, because of ein tzovei’a ba’ochlin, just as one may add egg yolk to mustard seeds.

According to the first two approaches to explain ein tzovei’a ba’ochlin, it should be permitted to mix the wines. The blended wine will soon be consumed, and, therefore, this coloring is certainly not permanent. Furthermore, wine is not usually considered a colorant. So why did Rav Avraham Mintz prohibit it?

We can suggest the following: Perhaps he understood the halacha similar to the way the Kehillas Yaakov did – that the reason we permit coloring food on Shabbos is to make it attractive and this is considered equivalent to flavoring it. This halacha is true only when the coloring is to encourage people to eat the food. However, blending red and white wine because he wants the wine to fulfill those opinions that hold that red wine is halachically preferable is an act of coloring and forbidden. This, reasoned Rav Avraham Mintz, is not included under the heter of ein tzovei’a ba’ochlin (see Mishnah Berurah 320:56). (We should note that the Nishmas Adam 24:3 presents a different approach to explain the position of Rav Avraham Mintz.)

A challenge

Notwithstanding the extensive discussion I have presented of the concept ein tzovei’a ba’ochlin, many authorities challenge the conclusion that ein tzovei’a ba’ochlin, based on the following Talmudic passage:

The Gemara (Shabbos 75a) cites a dispute between Rav and Shmuel germane to the question of how many melachos of Shabbos someone violates if he slaughters (shechts) an animal on Shabbos. Shmuel rules that he has violated only one melacha, that of taking a life. Rav contends that he violates two, one for taking a life and a second for dyeing, since one desires that potential purchasers see that the meat is fresh (see Rashi ad locum). Since Rav contends that coloring the meat red with blood is prohibited min hatorah as an act of dyeing, he presumably disputes the ruling of ein tzovei’a ba’ochlin!

In terms of halacha lema’aseh, the question becomes even stronger, since the majority of authorities rule according to Rav (Semag; Yerei’im; Semak; Or Zarua; Meiri; Rashi, Bava Kama 34b s.v. betzarich). [We should note that several authorities, including the Chasam Sofer, the Nishmas Adam (24:1), and the Avnei Neizer, understand that the Rambam ruled according to Shmuel.] Indeed, we should be aware that, on the basis of this Gemara, one major rishon disputes the entire principle of ein tzovei’a ba’ochlin and rules that it is prohibited to color foods on Shabbos (Tosafos Rid, Shabbos 75b; see also Shu”t Avnei Neizer, Orach Chayim 1:173). It is possible that Rav Avraham of Mintz held this way also, and that this is the reason he prohibited mixing red and white wine on Shabbos. However, most authorities conclude that ein tzovei’a ba’ochlin, which means that we must have some way of explaining why Rav prohibited shechting an animal because it violates tzovei’a.

Meat or hide?

It is possible that Rav does not dispute the principle of ein tzovei’a ba’ochlin, and that he ruled that one violates tzovei’a when slaughtering an animal only when the hide is bloodied, but not for the bloodying of the meat. Hide is not food, and coloring it has the halachic status of dyeing leather, which is certainly forbidden min hatorah. Indeed, there are rishonim who explain that Rav contends that one violates tzovei’a only when he wants the hide to look red (Sefer Yerei’im; Or Zarua).

Although this approach has much merit, there must be another way to explain the difference between Rav’s case and the principle of ein tzovei’a ba’ochlin. This is because Rashi explains that Rav ruled that one violates tzovei’a even when he wanted only the meat to look red. According to Rashi, we must look further to find an answer why Rav ruled that providing fresh meat with a bloody surface violates tzovei’a min hatorah, notwithstanding that ein tzovei’a ba’ochlin.

Meat versus mustard!

Indeed, many authorities contend that there is a qualitative difference between coloring mustard seed with yolk and coloring meat with blood. In the meat case, one is not trying to make a ready-to-eat food more attractive, which is halachically equivalent to flavoring food and therefore permitted. Rather, the slaughterer’s interest is to sell the meat, and reddening the meat is to make it more attractive for purchase. This may be no different from painting a house that one is selling, which is done to make it more aesthetically pleasing and attractive to a potential buyer. Both activities are prohibited min hatorah on Shabbos (Nishmas Adam 24:3).

An alternative approach to explain why Rav considered bloodying meat an act of dyeing min hatorah is because ein tzovei’a ba’ochlin applies only to food that can be eaten immediately. However, the freshly slaughtered meat that Rav describes requires soaking and salting to make it kosher for the Jewish table (Shu”t Chacham Tzvi 2:92; Shu”t Avnei Neizer, Orach Chayim 1:173).

Food color to whiskey

Would adding colorant to hard liquor on Shabbos to make it more salable violate a Torah prohibition of dyeing? According to the last reason we have cited, it would, and, indeed, the Pri Megadim (Eishel Avraham 320:25) prohibits adding colorant on Shabbos to whiskey or mead that is for sale, contending that the heter of ein tzovei’a ba’ochlin does not apply in this instance.

In conclusion

Most, but not all, authorities rule that ein tzovei’a ba’ochlin, at least when one is using something that is usually not considered to be a pigment. For example, Rav Shelomoh Zalman Auerbach (Shulchan Shelomoh to 320:19) rules that one may add syrup (petel) to water on Shabbos, even if the syrup contains food coloring that adds no taste, since the purpose is to make the beverage attractive for people to drink. However, someone desiring a specific variety of petel, because of an affinity for its particular color, should not mix it on Shabbos. It seems that this is not adding color to encourage people to drink the beverage, but it is considered producing a particular shade for aesthetic reasons.

Hashkafah

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly assume that work is prohibited on Shabbos, in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melacha, which implies work with purpose and accomplishment. On Shabbos, we refrain from altering the world with our own creative acts and, instead, emphasize Hashem’s all-encompassing role (Rav Hirsch’s Commentary to Shemos 20:11).

Our current discussion provides an excellent example to prove this point. Whether someone violates the Shabbos melacha of dyeing is not at all dependent on how hard he worked, but on abstract principles that determine whether this act is considered a creative act of man or not. Thus, understanding the laws of tzovei’a on Shabbos provides greater insight into how the true Builder and Creator of the world wants us to understand the beauty of Shabbos.




Observing a Colorful Lifestyle

With the several references in the parsha to wine and grapes, I thought an article dealing with some practical grape skin problems might be in order.

Observing a Colorful Lifestyle

Question #1:

Are there any non-kosher food colorings?

Question #2:

Why would a hechsher insist on a recall of a product?

Quiz Question #1, or Question #3:

How can a non-kosher ingredient be noticeable, and yet the finished product is kosher?

At one point in my life, when I worked as a kashrus supervisor, I made a surprise inspection of a company that produced juice drinks – let’s call it Generic Juices, Incorporated. I was surprised to discover that the plant was not following the instructions it had received from its hechsher and was bottling beverages containing enocianina, a coloring derived from grape skins. This product was not on the list of approved ingredients, and for good reason, as I will explain shortly. The kashrus concerns involved now created a serious problem for the hechsher, the company, and most of all, the unsuspecting consumer. Before discussing what happened, I must present the halachic issues involved.

THE FOOD COLORING INDUSTRY

Whether we like it or not, many of our foods are colored with a host of coloring agents. Some are derived from food items, such as beets, berries, sugar (caramel coloring), turmeric and annatto, whereas others are derived from inedible materials 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, there are two common food pigments that 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 and more. Cochineal is extracted from an insect that is native to South America. A closely related dye color, kermes, is a shade of scarlet derived from scale insects, which may have been the source of the tolaas shani dye used in the Mishkan and Beis Hamikdash. We should note that the Hebrew word tola’as, which is usually translated worm, may include insects and other small invertebrates. Thus, it may indeed be that the tola’as of the verse is a scale insect that produces a red dye.

The verse (Yeshayah 1:18), “if your sins will be like shanim, they will become as white as snow; though they be red as the tola, they will become white like wool,” clearly indicates that tola’as shani is a red color. On this basis, some authorities identify tola’as shani as kermes (see Radak to Divrei HaYamim II 2:6). One can rally support for this approach from the verse in Divrei HaYamim (II 3:14), which describes the paroches curtain as woven from techeiles, argaman, karmil, and butz, which is linen; whereas the Torah describes the paroches as made of techeiles, argaman, tola’as shani, and sheish, which is linen (Shemos 26:31). The words karmil and kermes certainly seem to be cognate. Similarly, the Rambam explains tola’as shani to mean “wool dyed with an insect” (Hilchos Klei HaMikdash 8:13). Thus, karmil appears to be another word for tola’as shani. The ancients derived a red dye from the dried bodies of the species called Kermes ilices, which served as one of the most important pigments for thousands of years. As a matter of fact, the English word crimson derives from this ancient dye.

(Without going into the subject in detail, it is appropriate to mention that some responsible rabbinic authorities rule that cochineal is kosher, since it comes from an inedible part of the insect. However, I am unaware of any major kashrus organization today that treats cochineal as kosher.)

GRAPE SKIN EXTRACT

The other common non-kosher source is called enocianina, colloquially often called simply eno, a red or purple natural food color derived from grape skin extract, and commonly used in beverages, fruit fillings and confections. After the juice has been squeezed out of the grapes, the remaining pulp is processed into a commercial coloring agent. Although one could produce kosher eno from kosher-processed grape skins, grape skin color available today is produced in non-kosher facilities. After the grapes have been squeezed and the juice has been separated from the pulp, at which time they become subject to the halachos of stam yeinam, which means that they have probably become non-kosher. Thus, we assume that eno is not kosher.

GENERIC JUICE DRINKS

Unfortunately, when I discovered the problem, 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?

RECALL

Companies hate having their products recalled, for technical reasons, because of the major expense involved, and because it is a public relations nightmare. On the other hand, if the product now in the marketplace is prohibited according to halacha, we must be concerned that a consumer may use the product, because he assumes that it is kosher! Although a recall is never a foolproof method, it is the best we can do to avoid people unwittingly consuming a non-kosher product.

The policy of this particular hechsher was not to require a recall, unless the product could not be used even after the fact, bedei’evid. It was now the responsibility of the hechsher’s poskim to decide whether the product is prohibited after the fact, and, therefore, to require a recall, or whether bedei’evid the product is permitted. Although we would insist that all labels bearing the hechsher on this product be destroyed, or at least the kashrus symbol be obliterated, the hechsher would not require the product that had already been shipped to be recalled. (There would also need to be further clarification as to whether the hechsher would allow distribution of the product that had been labeled but was still in the company’s control.)

Why should the finished product be kosher, if the colorant 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, maraschino cherry or strawberry-flavored yogurt 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 on its becoming bateil, if a non-kosher product was added inadvertently in minute quantities, the finished product is usually permitted.

The primary criterion to determine whether the treif ingredient is bateil is:

Can the non-kosher product be tasted, either because of its quantity or because it is a flavoring agent?

In our instance, this test is passed with flying colors! None of these colors can be tasted in the finished product.

However, there is, or might be, 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 treif item.

COLORS ARE NOTICEABLE

The boldness of a color announces its existence. Can we say that a color is bateil when we see clear evidence of its existence?

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.

According to this approach, we have answered our opening Quiz Question #3, which was: How can a non-kosher ingredient be noticeable, and yet the finished product is kosher?

A COMPROMISE POSITION – IN WHOLE CLOTH

Some authorities compromise 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? If the dye no longer exists, then it was not returned, whereas if the dye still exists, then it was returned.

CONCLUSION

By this time, I presume most readers want to know what the hechsher did. The deciding posek ruled in accordance with 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 eno, the grape skin extract, involves only a rabbinic prohibition, he did not require the company to recall the items containing this ingredient, contending that, according to most authorities, the eno is considered nullified in the final mix.

We should always pray that the food we eat fulfills all the halachos that the Torah commands with no controversial shaylos.

 




Observing a Colorful Lifestyle

clip_image002This 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?

RECALL

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).

CONCLUSION

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.