gevinas akum – 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.

The Cheese Factory

Driving on a secondary route after visiting an ice cream plant, I noticed a small cheese factory. At the time, I had no experience in the practical kashrus arrangements regarding the manufacture of cheese and whey in modern factories, but I was familiar with the topics as they are discussed in the Gemara, rishonim and poskim.

Being by nature a curious person, and also, perhaps more significantly, having a few hours to spare, I decided to drop in on the factory, hoping that perhaps I would be offered a tour of the production. I figured that if I didn’t ask, I would certainly not get a tour, and if I did get a tour, perhaps I would learn how cheese and whey are manufactured, and what needs to be done to make the products properly kosher.

Hashem made cow’s milk contain all the nutrients necessary for a newborn calf to grow big and strong until it is ready to be self-supporting by eating grass for its nutrition. The major components of milk are lactose, or milk sugar, which provides the carbohydrates a young calf needs; casein and other proteins; cream (the fat component); vitamins and minerals, including calcium for healthy bones; and about 90% water, which keeps the other ingredients in suspension. Manufacturing cheese requires precipitating (separating) the casein out of the milk and then coagulating it. These processes may involve use of a “starter” and “rennet.” The coagulated part of the milk, called the curd, separates from the rest, which is the whey. The curd is pressed into a solid block – the shape of the cheese.

The Gemara records many reasons why Chazal prohibited using cheese when a Jew did not participate in its manufacture or did not own its raw materials. In practice, having a Jew participate in the manufacture of cheese is usually accomplished by having a mashgiach add the starter and the rennet into the milk batch. Such cheese is called gevinas Yisroel (literally, cheese of a Jew), whereas gevinas akum (literally, cheese of a non-Jew) is the name for the type of cheese that Chazal prohibited. (Whether we resolve the prohibition of gevinas akum by having a Jew participate in the production, or by having him own the product, is a lengthy topic discussed in a different article available on this website.)

I pulled into the driveway of the cheese factory and saw a billboard attached to the sidewall of the factory, advertising the retail products that the company manufactured – cheddar cheese, Swiss cheese, mozzarella cheese and a few similar varieties. As I would soon find out, the company also did some private-label selling, which they did not advertise on a billboard, and also sold some industrial products, specifically, various forms of whey.

I no longer remember whether I had noticed that the labels of the products on the billboard had a large letter K on the package. Of course, we all know that this is not a registered kashrus symbol. However, there is a segment of the population, rapidly disappearing, of traditionally observant Jews who assume that a large K on a product means that it is kosher.

I was pleasantly surprised when the receptionist quickly ushered me into the office of the plant manager, who was also the company owner. I told him that I was interested in knowing the details of cheese production and happened to drive past his factory this day. I expected him to brush me off, telling me that he did not want to reveal any of his trade secrets. I was quite surprised that he was willing to walk me through the plant. Perhaps I looked very honest; perhaps he had no trade secrets to hide; perhaps small-town people are less suspicious; perhaps his pride in his business got the best of him. I just know that he was very willing to spend a considerable amount of time showing me around his facility, explaining all the details of production and answering all my questions, eagerly and fully.

I actually did get a very good education that day on how “hard cheese” is made. Subsequently, I also learned some side curiosities: for example, that true Italian mozzarella cheese is not made from cow’s milk, but from the milk of a water buffalo. (For the kosher consumer, it is good that you can make mozzarella from cow’s milk, because I have never seen anyone in the United States milk a water buffalo, although it is a kosher animal. It is commonly milked today in Italy, and I know that this could be arranged in Israel. Nevertheless, I am unaware of anyone who sells cholov Yisroel buffalo milk.)

My visit over, I thanked the plant manager for his wonderful tour, still curious why he had received me so nicely, and attributing it to my charisma. But then, I found out that he had an ulterior motive.

“You must be a rabbi,” he said. I guess my beard didn’t look too Amish. “I am in need of a new certifying rabbi. Could you help me?”

He then produced a letter from a nursing home in Brooklyn. The letter verified that the cheese produced by his factory was kosher. I assumed that the nursing home had a certifying rabbi, who also certified cheese factories and other facilities, although I saw no indication that any of the rules necessary to avoid the prohibition of gevinas akum were observed. This would usually require the presence of an on-site frum individual who added the ingredients that make the cheese form. Another option, rarely used, also existed: That the rabbi had arranged that he was a partial owner of the products being manufactured.

Could you be our new rabbi?

The owner/plant manager explained. “Rabbi Levine* certified our plant for many years. His fee was much lower than any other quoted to us. He used to visit the factory once a year, ask a few questions and collect his check. A few years ago, his wife died and, shortly thereafter, he moved into an assisted living facility. He still used to visit once a year, although it was quite obvious that he was getting on in years. The last two years, he contacted us, and we mailed him his annual fee. But our certification is now running out, and we have been trying to reach him, unsuccessfully. We do not even know if he is still alive! Could you be our new rabbi?”

Much as I would have liked to be makir tov to the factory owner for educating me about the production of kosher cheese, he was not interested in making the changes necessary for his cheese to be kosher according to any standard. I never met Rabbi Levine, but he was clearly out of his league in issuing a hechsher. I am unaware of any accepted heter that would allow this cheese to be considered kosher on the basis of its ingredients with no Jewish involvement in the production.

Permitted non-Jewish cheese?

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

However, most rishonim rejected this reasoning, contending that the prohibition against non-Jewish cheese exists even when none of the original reasons applies. They contend that the prohibition has a halachic status of davar she’be’minyon, a rabbinic injunction that remains binding even when the reason the takanah was introduced no longer applies, until and unless a larger and more authoritative body declares the original injunction invalid. Since a more authoritative beis din never rescinded the prohibition on non-Jewish cheese, it remains – even when none of the reasons apply (Rambam, Ma’achalos Asuros 3:4; Rashba, Toras Habayis page 90b; Semag, Mitzvah 223; Tur, Yoreh Deah 115).

The Shulchan Aruch rules according to the majority opinion that there is no halachic basis for those communities that permitted use of the local non-Jewish cheese. The Rema follows a more lenient view, permitting use of non-Jewish cheese in a place where one can ascertain that there was a long-established custom to permit it. Therefore, no one in today’s world would be permitted to use non-Jewish cheese, with the possible exception of an Italian community that can prove a tradition dating back at least eight hundred years.

Gevinas Yisroel by observation

The Rema contends that a Jew observing the production of cheese makes the cheese gevinas Yisroel, which is, by definition, not subject to the prohibition of gevinas akum. In his opinion, this is true even when the milk and curdling agents are all owned by a non-Jew, and even when non-Jews performed all the steps in the cheese production.

The Shach, however, takes tremendous issue with this approach of the Rema, contending that if a non-Jew owns the milk, the acid, and the enzyme, and he places the acid or enzyme into the milk, the resultant cheese is prohibited as gevinas akum, even if an observant Jew supervised the entire production.

Gevinas Yisroel by ownership

According to some contemporary poskim, there are ways to make cheese kosher by making a Jew the owner of the product. If one follows this opinion, you could create some complicated kinyanim and, thereby, make the cheese gevinas Yisroel, fully kosher.

The Noda Biyehudah (Shu’t Noda Biyehudah II Orach Chayim #37) discusses a case where a Jew is “renting the schvag” of a non-Jew for the purpose of producing cheese. I do not know the meaning of the word schvag, and the many people I have asked do not know either (although some of them insisted otherwise). From the context in which the Noda Biyehudah uses the term, it seems that this was a Slavic word for a cheese factory. The case is that the Jew is contracting with the non-Jew to make cheese for the Jew in the gentile’s facility.

The Noda Biyehudah contends that when the Jew intends to purchase the cheese and also supplies the rennet, the Jew is already considered the owner of the cheese. Under these circumstances, there is no problem of gevinas akum, even according to the Shach. The Noda Biyehudah concludes that, under these circumstances, a non-Jew may produce the cheese without it becoming prohibited.

Another possibility, suggested by my good friend Rav Sander Goldberg, is that the word schvag was misspelled in the printed editions of the Noda Biyehudah, but refers to Schwab or Swabia, the hilly southwestern region of Germany that borders Switzerland, which was well known for its production of dairy products. Several early authorities, including Sha’arei Dura (#78) and the Maharil (#35), make reference to the heter of the שוואבין to allow non-Jewish butter. When the Noda Biyehudah refers to the שוכרים ,השוואגין he may be referring to Jews from the region of Swabia who would peddle cheeses; they would bring their own rennet, made from the stomach of a kosher slaughtered calf (keivah), to make the cheese. The Noda Biyehudah’s point is that even though the transaction between the non-Jews (who owned the cows) and the Jews (who brought the keivah) wasn’t finalized until after the cheese was made, and therefore technically the cheese still was owned by a non-Jew, nevertheless this is considered enough of a partnership to avoid the problem of gevinas akum.

Based on the Noda Biyehudah, the Orthodox Union (OU) once entertained the possibility of considering cheese as gevinas Yisroel on the basis that the mashgiach would own the rennet. However, they reached the following conclusion: “Not everyone agrees to the idea of the Jew owning the rennet. Rav Belsky feels that the type of scenario in which this is or would be done [having the mashgiach do a kinyan on the rennet] is not proper, as, in order for this to work, the cheese must be made for the Jew, rather than him technically having a kinyan in the rennet, with sale of the cheese to others. He [Rav Belsky] says that this is what the Noda Biyehudah meant: The Noda Biyehudah is discussing a case where the Jews rented the cheese plant, (which is how he understood the word schvag) and plan on buying the finished cheeses. In that case, the Noda Biyehudah says that the cheese is permitted. So he’s only saying that owning the rennet suffices where that gives the Jew a partial ownership in the cheese, as a first step towards taking full possession. As such, the Noda Biyehudah’s approach applies only in cases where the Jew now has a partial ownership and will later have full ownership, and there’s no basis for extending it to cases where the Jew really has no ownership and will eventually have even less.

“Both Rav Belsky and Rav Schachter accepted this argument that the Noda Biyehudah’s approach doesn’t apply in this case.”

In conclusion, we have suggested four possible ways to avoid the prohibition of gevinas akum, although some of these approaches are disputed:

1. A Jew (mashgiach)supervises the entire production of the cheese.

2. A Jew adds the rennet and starter, which causes the manufacture of the cheese.

3. A Jew is a proper partial owner of the milk from which the cheese is made.

4. A Jew supplies the rennet for the manufacture of the cheese and maintains partial ownership over the product.

I understand that, years later, this company did decide to produce properly kosher cheeses. I am glad.

* Name is changed.

How Do We Make Kosher Cheese?

Question: Is there a need for kosher cheese to cost such a premium over non-kosher cheese?

Before discussing the halachic issues involved in manufacturing cheese, we need to explain the basics of cheesemaking. Hashem made cow’s milk contain all the nutrients necessary for a newborn calf to grow big and strong until it is ready to be self-supportive by mowing the lawn – I mean, by eating grass for its nutrition. The major components of milk are lactose, or milk sugar, which provides the carbohydrates a young calf needs; casein and other proteins; cream (which is the fat component); various other nutrients, including calcium for healthy bones; and about 90% water, which keeps the other ingredients in suspension or solution. To make cheese, one causes the casein to precipitate (separate) out of the fluid milk and then to coagulate. The coagulated part of the milk, called the curd, separates from the rest, which is the whey.

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

The origins of the rabbinic prohibition banning non-Jewish cheese are mentioned by the Mishnah (Avodah Zarah 29b), which records that Rabbi Yehoshua evaded explaining why the Sages prohibited cheese. In actuality, the Mishnah and the Gemara (Avodah Zarah 35) mention seven possible reasons why Chazal prohibited consumption of gevinas akum:

(1) The first reason mentioned by the Tanna, Rabbi Yehoshua: Because the gentiles set it using the stomach of a non-kosher slaughtered calf.

This approach is later reiterated in the Gemara by Rabbi Yochanan.

(2) The second reason mentioned by Rabbi Yehoshua: Because the gentiles use the stomach of a calf that had been offered for idol worship.

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

(4) Rabbi Chanina: The milk may have been adulterated with milk of a non-kosher species. Although most non-kosher species do not allow themselves to be milked, camels, donkeys, and mares (female horses) can all be milked and produce palatable product. Although milk from non-kosher species contains very little casein and thus cannot be made into cheese, some fluid remains in the cheese that could contain non-kosher milk.

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

(6) Rav Chisda: That non-kosher wine vinegar was used to set the cheese.

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

The Rambam in his discussion of these laws mentions setting cheese with the juice of figs. Today, we extract an enzyme known as ficain (also known as ficin), usually from the sap of the fig, which can be, and is, used to make certain varieties of cheese.

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

I want to share with you a curiosity: While researching information for this article, I discovered a forty-year-old article describing how one manufactures cheddar cheese (by the way, the origin of the name is that this cheese was originally developed in Cheddar, a village in England), which reports that the cheese was made by adding calf stomach rennet to the milk so that it curds, heating the curd, going through several processes to carefully remove “every scrap” of whey, pressing the curd and then plunging it into hot water briefly to form a thin rind, and then greasing the rind with pure lard to keep the shape and thicken the rind. Thus, three of the reasons mentioned by the Gemara to prohibit cheese were very much applicable to this cheese – the use of non-kosher rennet; the use of lard; and the remaining uncurded milk in the cheese which could contain adulterated milk, were it not processed so carefully to remove it all. Obviously, contemporary kosher cheddar cheese must use a different source for the rennet, and a substitute for the lard; but are those the only differences between kosher cheddar and non-kosher?

Why did Rabbi Yehoshua hide the reason?

Although we now have some background as to why Chazal prohibited gentile cheese, we have as yet no idea why Rabbi Yehoshua was reticent to explain the origin of the prohibition. However, the Gemara (Avodah Zarah 35a) does explain his concern, in the following passage:

“Why did he not reveal the true reason? As Ula explained: ‘When the scholars of Eretz Yisrael decreed a new prohibition, they did not reveal the reason for twelve months — lest someone dispute their reason and be lax in its observance.'” Thus, we see that even when the prohibition began, no reason was given, out of concern that this might affect whether the takkanah would be properly observed.

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

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

However, most Rishonim rejected this reasoning, contending that the prohibition against gentile cheese exists even when none of the original reasons apply. They contend that the prohibition has a halachic status of davar shebeminyan, a rabbinic injunction that remains binding even when the reason the takkanah was introduced no longer applies, until and unless a larger and more authoritative body declares the original injunction invalid. Since a more authoritative beis din never rescinded the prohibition on gentile cheese, it remains, even when none of the reasons apply (Rambam, Maachalos Asuros 3:4; Rashba, Toras HaBayis page 90b; Semag, Mitzvah 223; Tur, Yoreh Deah 115). Others even contended that Rabbeinu Tam himself never permitted gevinas akum, but that his comments were meant to be theoretical in nature and not a definitive ruling (Semag; Semak).

The Shulchan Aruch rules in line with the majority opinion that there is no halachic basis to allow the practice of the Italian communities which permitted use of the local gentile cheese. The Rama follows a moderately more lenient view, permitting use of gentile cheese only in a place where one can ascertain that there was a long-established custom to permit it. Thus, today no one would be able to use gentile cheese, with the possible exception of an Italian community that can prove that they have such a tradition going back at least eight hundred years.

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

Having established that almost universal opinion contends that the prohibition against gentile cheese is alive and well even when none of the concerns apply, we need to clarify how one makes cheese in a way that it is considered Jewish cheese, not gentile. Does the cow or the milk require immersion in a mikveh and acceptance of mitzvos to become Jewish?

To resolve this issue we find a dispute between two major halachic authorities, the Rama (Yoreh Deah 215:2) and the Shach. These two authorities dispute concerning the definition of gevinas Yisrael; or, in other terms, what removes a cheese from the categoric prohibition of gevinas akum. To describe the dispute very succinctly, we could say that the Rama contends that supervision makes the cheese kosher, whereas the Shach insists that a Jew must be involved significantly in the processing of the cheese.

A Mashgiach resolves the problem.

The Rama contends that a Jew observing the production of cheese makes the cheese gevinas Yisrael, which is, by definition, not subject to the prohibition of gevinas akum. In his opinion, this is true even when the milk and curding agents are all owned by a gentile and even when gentiles performed all the steps in the cheese production.

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

The Shabbos Problem

Those who followed the Shach’s approach requiring the Jew either to make the cheese or to own it, occasionally ran into the following practical problem. In order to make the cheese kosher, they needed to arrange for a Jew to add the enzyme or acid to the milk. This could easily be done if the price was right. If the gentile ordinarily used non-kosher rennet, the Jew would supply his own kosher rennet. However, what was one to do when the gentile decided that the best day to set the cheese was on Shabbos? It is a desecration of Shabbos to add rennet into milk on Shabbos – and, according to the Shach, a Jew must put in the rennet to avoid a problem of gevinas akum!

This entire problem does not exist according to the Rama, since the Jew can simply oversee the work that the non-Jew is performing. The Jew himself is performing no melacha, and the non-Jew does not have to keep Shabbos. Furthermore, no violation of amira le’nachri, having a gentile perform melacha for a Jew, is involved, since the gentile is working on Shabbos as his own decision and for his own purposes.

The Pri Chodosh, who sides with the Shach’s position regarding the dispute concerning what makes a cheese “Jewish,” discusses the problem of what to do when the gentile wants to make the kosher cheese on Shabbos. He concludes the following:

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

The Pri Chodosh also discusses another case: What is the law if the cheese is manufactured as a partnership between the Jew and the gentile? In this situation, must the Jew add the rennet to the milk to avoid a concern of gevinas akum? The Pri Chodosh rules that lechatchilah the Jew should add the rennet to consider this cheese kosher, but be’dei’evid, if he did not do so, the cheese is permitted, since the Jew is a partial owner.

However, the question is: Why does the Pri Chodosh permit this only be’dei’evid? Logically, this cheese should not be included under the prohibition of gevinas akum, since there is partial Jewish ownership.

It seems that the Pri Chodosh is somewhat concerned because part of the cheese is being made for the gentile – and that quantity of the cheese might be considered gevinas akum – whereas where the Jew is purchasing outright a certain quantity of cheese, whatever is made for the Jew is considered gevinas Yisrael and therefore is permitted.

Another Approach

The Noda BiYehudah (II Orach Chayim #37) discusses a similar case, where a Jew is “renting the schvag” of a non-Jew for the purpose of producing cheese. I do not know the meaning of the word schvag, and in many inquiries about the subject I have found no one else who knows either, but from the context in which the Noda BiYehudah uses the term, it seems that this was a Slavic word for a cheese factory. The case is that the Jew is paying the gentile to use his own facility to produce cheese for the Jew. Again, the Noda BiYehudah is faced by the same problem that the Pri Chodosh discussed: What should one do on Shabbos?

The Noda BiYehudah sides with the Rama: as long as the Jew supervises the process, the cheese is kosher, mentioning that this is the accepted practice, and that several earlier luminaries ruled this way.

In addition, the Noda BiYehudah demonstrates that the dispute between the Rama and the Shach originates as a machlokes Rishonim in which most authorities rule like the Rama, whereas the Maharam of Rottenberg held, like the Shach, that gevinas akum applies unless the Jew is the owner or the manufacturer.

The Noda BiYehudah adds the following point. He contends that when the Jew intends to purchase the cheese and also supplies the rennet, the Jew is already considered the owner of the cheese. Under these circumstances, there is no problem of gevinas akum, even according to the Maharam and the Shach. The Noda BiYehudah concludes that, under these circumstances, a gentile may himself actually produce the cheese without it becoming prohibited. Whereas the Pri Chodosh (115:15) permitted consuming cheese produced this way only be’dei’evid, that is, if it has been produced already, the Noda BiYehudah rules that lechatchilah one may produce kosher cheese this way.

Owning just the rennet

Based on the explanation of the Noda BiYehudah, some contemporary rabbonim have suggested that it is sufficient for the Jew to own the rennet. Others take issue with this approach, contending that this is sufficient only when the cheese is being produced specifically for Jewish consumption, whereas in the modern world, the cheese is usually produced for general consumption, and the non-Jewish company intends to market the cheese. According to the Orthodox Union Kashruth Division, Rav Yisrael Belsky rules that the Noda BiYehudah permitted only a situation when the Jews rented the cheese-plant and planned on purchasing the finished cheeses. The Noda BiYehudah contended that owning the rennet suffices to give the Jew a partial ownership in the cheese when it is a first step towards taking full possession. However, when the Jew now has no intention of ever owning the cheese, this approach is insufficient to create gevinas Yisrael.

Other rabbonim ruled that if the Jew owns the milk and the rennet, then the cheese produced is gevinas Yisrael according to all opinions. Subsequent to its production, the gentile then purchases the cheese back from the Jew, so that he markets it as his own cheese. However, I know of responsible, knowledgeable rabbonim who permitted cheese based on this heter, usually adding other requirements. For example, in one instance the rav made a kinyan on the factory and all its vessels, so that he would own the cheese as it was made. Another suggestion was that the rav remain a partial owner of the cheese as it was made, and that he sell his share in the finished cheese, after its manufacture was complete, back to the company in exchange for his “hechsher fee.”

Conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than the Torah laws. In this context, we can explain the vast halachic literature devoted to understanding the prohibition of gevinas akum, created by Chazal to protect the Jewish people from various different sins. We should always hope and pray that the food we eat fulfill all the halachos that the Torah commands us.