(2003/5764)

Introduction

This week we will explore Rav Yosef Dov Soloveitchik’s position regarding the contemporary applicability of the Rabbinic prohibition to consume milk that was milked by a non-Jew and not supervised by a Jew.  Indeed a question that is often debated in the Orthodox community is whether or not one may drink packaged milk that is not under Rabbinic supervision.  We will present the view of Rav Yosef Dov Soloveitchik as heard from one of his leading students, Rav Menachem Genack.  It is vitally important to note that we will address the issue in accordance with the facts that pertain in this country.  In many countries, however, it is forbidden to consume unsupervised milk according to all authorities.  I have heard that these countries include Spain, Portugal, Poland, and other Eastern Europe countries where milk from non-Kosher animals is commonly available.  This information is liable to change and a Rav should be consulted.     

Rav Soloveitchik’s Three Considerations For Leniency

It is well known among Rav Soloveitchik's students that the Rav when he resided in the United States drank packaged milk that did not have any special Rabbinic supervision.  Rav Genack mentioned in a Shiur at Yeshiva University that the Rav told him that there exist three considerations to be lenient.  First, if no non-Kosher animals are found in the herd of animals that is being milked (“Ein Bedro Tamei”) some authorities rule leniently.  Second, we may rely on the government (USDA) supervision and inspections to insure that the milk we consume is from cows. Finally, the rabbinic edict forbidden drinking milk from an animal that was milked by a non-Jew technically does not apply today since the cows are milked by machines.  It is interesting to note that a great Israeli authority, Rav Zvi Pesach Frank, permitted drinking powdered milk imported from the United States based on somewhat similar considerations (Teshuvot Har Zvi, Yoreh Deah 103-104).

Ein Biedro Tamei

‍Let us explore these issues through the Gemara, Rishonim, and Acharonim.  The Mishnah (Avodah Zarah 35b) records that Chazal forbade consuming milk from a Kosher animal that was milked by a non-Jew without (observant) Jewish supervision.  The Gemara explains that this was enacted because of concerns that the non-Jew may have mixed non-Kosher milk with the Kosher milk.  Rishonim and Acharonim, however, debate if this prohibition applies even if the non-Jew has no non-Kosher animals in his herd (see Mordechai Avodah Zara 826, Teshuvot Radbaz 4:1147, and S’mak 123).  Some authorities are lenient only if, in an entire locale, non-Kosher animals are not milked.  The later Acharonim are divided regarding how to resolve this issue.  Pri Chadash (Y.D. 115:6) and Chazon Ish (Y.D. 41:4) rule leniently, whereas Aruch Hashulchan (Y.D. 115:5), Chochmat Adam (67:1), and Chatam Sofer (Y.D. 107, cited in the Pitchei Teshuva Y.D. 115:3), rule strictly.  The latter three authorities note that the custom among Eastern and Central European Jews was to rule strictly regarding this question.  The Darkei Teshuva (115:6) quotes that the custom in Eretz Yisrael was also to be strict about this matter.  The Pri Chadash, though, records that the custom in Amsterdam was to be lenient.  For further sources on this hotly debated issue, see Sdei Chemed (8:45) and Darkei Teshuva (115:6) who cites that the custom in a number of communities was to adopt the lenient approach to this issue. 

We should note that the Darkei Teshuva cites the Beit Meir who argues that there is hardly any locale that has no non-Kosher animals in the area and thus this line of leniency is hardly ever relevant.  On the other hand, the Pri Chadash and his supporters believe that Ein Biedro Tamei means that there are no non-Kosher animals that are milked in the area.  An animal in the zoo does not appear to impinge on the applicability of this rule according to the Pri Chadash.  

It is important to note that even if the strict ruling is adopted, the lenient opinions can be used as a legitimate Snif Lihakel (an adjunct consideration) to a lenient ruling.  An example of this approach can be found in Rav David Zvi Hoffman's responsum (Teshuvot Melamed Lihoil 2:33) where he utilized the lenient opinion as a consideration to permit a sick individual, for health reasons, to drink buttermilk that has not been rabbinically supervised.  Rav Soloveitchik seems to be similarly utilizing these lenient opinions as a consideration to rule leniently, in light of the rule that milk from non-Kosher animals is not commercially available. (An owner of a milk factory once told me that it would be economically counterproductive to introduce non-Kosher milk into the milk that is to be marketed.)  It is vitally important to note, though, that this is not true in Israel.  Rav Zev Whitman the Rav of Tenuva, one of the world’s great experts regarding Kashrut of milk and milk products, reports (Techumin 22:459) that camel milk is (regrettably) commercially available in Israel and is used as an ingredient in ice cream that is sold in Southern portions of Eretz Yisrael.  This is one of the reasons that the Israeli Chief Rabbinate is not lenient regarding milk that is not supervised by an observant Jew (see Rav Eliyahu Bakshi-Doron’s essay in Techumin volume 23). 

On the other hand, Rav Whitman (Binetiv Hechalav p.40) notes that since the price of non-Kosher milk is tens of times more expensive than Kosher milk we need not be concerned that non-Kosher milk was introduced into the Kosher milk.  Thus, he argues using the leniency advanced by the Pri Chadash that the prohibition of non-Kosher milk does not apply when the price of non-Kosher milk is far more expensive than Kosher milk.  The basis for this approach is the Gemara (Avodah Zarah 34b) that teaches that although the Mishna (Avodah Zarah 29b) prohibits Muryis (oil from pickled fish that sometimes contains wine) due to concern that non-Kosher wine was added, the prohibition does not apply when wine is far more expensive than pure Muryis.  

Government Inspection

The second consideration is to rely on the government's inspection of milk to ensure that no non-Kosher milk has been introduced.  This ruling (see Chazon Ish Y.D. 41:4) is based in the Gemara (Avodah Zarah 39b), which states that the observant Jewish supervisor need not constantly watch the milking.  Rather, as long as he has easy access to view the milking, the milk is acceptable.  This is because the non-Jew milking the cow is afraid (“Mirtat”) to introduce non-Kosher milk, lest the Jew see him.  It seems clear that as long as the non-Jew is afraid to put non-Kosher milk into the Kosher milk, one is permitted to consume the milk.  Indeed, many of the great twentieth-century authorities believe that the Halacha essentially regards responsible government supervision as Halachically equivalent to Jewish supervision in the context of the halacha of Chalav Yisrael because it creates a Mirtat to introduce non-Kosher milk.  Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 1:46) writes, "In a case where there is fear (“Mirtat”) of government penalty, this rabbinic prohibition does not apply."  Other authorities who essentially accept this position include the Chazon Ish (Y. D. 41:4, though see our discussion that will appear Im Yirtzeh Hashem and Bli Neder next week), Rav Zvi Pesach Frank in case of powdered milk (ad. loc.), Rav Yosef Eliyahu Henkin (Teshuvot Ivra 38) and Rav Yaakov Kaminetzsky (Emet LiYaakov p.308).

It is important to note that according to this approach, it is only permitted to consume milk poured from a container from a USDA supervised company (or any other country that strictly supervises milk production).  However, it would not be permitted to drink milk that a non-Jew pours from his own container (see the story related by the Aruch Hashulchan Y.D. 115:6).  Incidentally, Rav Moshe Feinstein rules (Teshuvot Igrot Moshe Y.D. 1:46) that this Rabbinic edict does not apply to a non-observant Jew.  Rav Yosef Shalom Eliashiv and Rav Shmuel Wosner (presented in Binitivot Hechalav, a recent publication by Tenuva which outlines many of the Kashrut issues involved with contemporary production of milk and milk products) agree with this ruling.  Others, however, disagree (see Encyclopedia Talmudit 15:174).

Davar Shebiminyan

Despite this leniency, it is well known that Rav Moshe Feinstein encouraged (both in writing and orally) people to drink milk that has been supervised by rabbis.  The primary reason for this is based on a Gemara (Beitzah 5a) that “Davar Shebiminyan Tzarich Minyan Acheir L’hatiro,” which means, essentially, that a rabbinic edict applies even if its reason no longer applies.  This point was strongly emphasized by the Chatam Sofer in his aforementioned responsum regarding Chalav Yisrael.  Although the Pri Chadash argues that milk was not a Davar Shebiminyan, namely that there was no formal prohibition in situations where there is no concern for a mixture of non-Kosher milk, the custom in most of Europe was not to follow the Pri Chadash.

However, Rav Soloveitchik's third reason to rule leniently might overcome this obstacle.  He argues that the edict applies only if a non-Jew milks the animal but not if a machine milks the cow.  According to this approach, the Rabbinic edict does not apply to the milk we currently drink even if one assumes that milk was prohibited by Chazal as a Davar Shebiminyan.  One might ask then why should wine produced by non-Jews be a problem today if the wine is produced entirely by machinery and there is no hand contact with the wine.  An answer is that the Shulchan Aruch (Y.D. 125:2) states explicitly that wine produced by non-Jews is prohibited even if the non-Jew produced the wine indirectly and did not touch the wine.  By contrast, the Shulchan Aruch does not make such an assertion in the context of the Halachot of milk production. 

On the other hand, none of the other twentieth-century Poskim make Rav Soloveitchik’s argument.  Perhaps they believe that the rule articulated by the Shulchan Aruch in the context of wine applies to milk as well.  This would be especially true according to the assertion of the Chatam Sofer that milk is a Davar Shebiminyan similar to wine.  A proof to this might be derived from the accepted practice among all Orthodox Jews is that the rabbinic prohibition of cheese produced by a non-Jew still applies today even though the cheese today is produced by machine. 

It should be noted, though, that a concern of those who rule strictly is that if Chalav Yisrael is not observed then this law will be forgotten by Am Yisrael (see Rav Yaakov Breisch, Teshuvot Chelkat Yaakov 3:37).  The concern is that we will forget to observe this Halacha when its reason is applicable, such as in countries or circumstances where the lenient considerations are not relevant.  Accordingly, even those Jews who adopt the lenient position are reminded by those Jews who accept the strict position, that sometimes milk can be considered not kosher. 

In addition, it is important to note Rav Zev Whitman’s insight (Techumin 22:460-463) that today a significant number of cows throughout the world undergo a surgical procedure that renders them (and the milk they produce) as Treifah.  Thus rabbinic monitoring of the situation is necessary to ascertain that this does not render the milk Treifah.  The Orthodox Union (see Mesorah Volume 10) has determined that this is not currently a problem in the United States.  One may not assume that this is not a problem in other parts of the world without consulting a competent Rav. 

It also should be noted that one who is lenient should serve only Rabbinically supervised milk to those who adopt the strict opinion (see Rama Y.D. 119:7).  On the other hand, those who adopt the strict approach should not regard those who rule leniently as not being observant of Kashrut laws, since they are following eminent halachic authorities such as Rav Soloveitchik and Rav Feinstein (see aforementioned Rama).

Conclusion

Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 1:47) writes that, “Most observant Jews and also many Rabbanim are lenient regarding this matter and God forbid that one declare that they are acting improperly.”  Indeed, many of Rav Soloveitchik’s students follow their Rebbe’s example and adopt the lenient approach to this than issue.  We should note, though, that today a much greater percentage of the observant community adopts the strict approach to this issue than when Rav Moshe wrote his Teshuva in 1954.

We should note that the lenient position appears to be especially cogent because there is no concern for a violation of a Torah prohibition in this matter.  The Shach (Y.D. 118:8) points out that we are not concerned that the non-Jew added a large amount of non-Kosher milk because then the adulteration would obvious as non-Kosher milk looks different than Kosher milk as noted by the Gemara (Avodah Zarah 35b).  Accordingly, since the concern is only that a small amount of non-Kosher milk was added, there is no possibility of violating a Biblical prohibition exists since two like items (Min Bimino, in this case the non-Kosher milk and the Kosher milk) are nullified on a Biblical level as long as there is a majority of the Kosher product. 

See, though, Pitchei Teshuva (Y.D. 118:1) who questions the reasoning of this Shach based on the fact that the Kosher and non-Kosher milk are of different tastes and therefore should be considered a case of two different items (Min B’sh’eino Mino) where there must be more than sixty times of the Kosher item to nullify the non-Kosher item.  See, though, the Chazon Ish (Y.D. 41:1) who explains that there is no prohibition on a biblical level to drink unsupervised milk since the chance of mixture of non-Kosher milk is so small.  

Next week we will, Im Yirtzeh Hashem and Bli Neder, explore this question further and present the reasons behind those who follow the strict opinion regarding this issue.