The Milky Whey - The Cholov Yisrael controversy | Rabbi Yirmiyohu Kaganoff | Beit Midrash

Jewish Laws and Thoughts
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קטגוריה משנית

Question #1:
Shirley mentions to her friend: "I do not understand why some people keep chalav Yisrael today. Do they really think that someone is adding pig's milk?"

Question #2:
Muttie inquires: "My friend quoted his rav that it is more important to keep chalav Yisrael today than it ever was before. How could this be?"

Chazal derive from this week's parsha a rule that whatever derives from a non-kosher species, such as eggs or milk from non-kosher species, is also non-kosher, and thus milk of mares, camels, llamas, donkeys or sows are all non-kosher. Still people find chalav Yisrael a perplexing subject matter. We have all heard various authorities quoted that today use of chalav Yisrael is only a chumrah, whereas others rule that consuming non-chalav Yisrael foods is a serious infraction of halacha. The mission of this article is to provide appreciation of the issues involved. So, let us start from the beginning of the topic, by understanding the origins of this proscription and then explaining the different approaches why it does or does not apply today.
Before we even begin our halachic discussion, we need some biological and food production information. The definition of a mammal is an animal that nurses its young with mother's milk. (The Modern Hebrew word for mammal is yoneik, literally, that which nurses, meaning that the young suckles mother's milk.) Hashem, who provides for all His creatures, custom-developed a formula that provides the ideal nourishment for the young of each mammalian species. This supplies the perfect "food pyramid" balanced diet with all the proteins, carbohydrates, vitamins and minerals that a young growing foal, cub, kitten, puppy, kid, lamb, infant or calf need to thrive and mature until they are ready for an adult diet, which in many species is when they are ready to earn their own living.
There are thousands of species of mammals, yet each species' milk is somewhat unique. The young of kosher animals require a certain protein, called caseine, in higher proportions than do the young of non-kosher animals, and therefore Hashem made kosher milk with a higher proportion of caseine. Non-kosher milk, of course, also contains significant amount of protein necessary for a young growing mammal, but most of this protein is categorized as "whey protein." (When I use the term "non-kosher milk" in this article I will be referring to milk from non-kosher species.) Kosher milk also contains whey protein, but in much smaller proportion to the casein in the milk.

The Origins of Chalav Yisrael
The Mishnah (Avodah Zarah 35b, 39b) proscribes consuming milk that a gentile milked unless a Jew supervised the milking, a prohibition called chalav akum. The Gemara notes that we are not concerned that the gentile is misrepresenting non-kosher milk as kosher -- milk from non-kosher species looks different from kosher milk, and this would be easily identified. Rather, the prohibition is because the milk may have been adulterated with milk of a non-kosher species. The Gemara subsequently discusses how closely must the Jew supervise the milking, concluding that when the gentile has both kosher and non-kosher animals that could be milked, the Jew may be sitting in a place where he/she cannot observe the milking, provided that should he/she stand up he would be able to observe the milking. Since the Jew can rise to his feet at any moment, we may assume that the gentile would not risk milking his non-kosher animal and lose the Jew's business. Therefore this milk still qualifies as kosher chalav Yisrael, meaning milk that was supervised by a Jew.
On the other hand, should the gentile have only kosher species in his herd, the Gemara implies that the Jew does not need to maintain as close supervision, but it does not define exactly how much supervision is required. Although the milking still requires the attendance of a Jew, the halachic authorities dispute the reason and purpose of the Jew's presence. This dispute is what underlies the controversy alluded to above.

The most lenient approach
The most lenient approach to the question of chalav akum is that of the Pri Chodosh (Yoreh Deah 115:15), who understands that one only needs to be concerned about chalav akum when the non-kosher milk is less expensive than the kosher variety, or it is difficult to sell. However, when kosher milk is less expensive, he contends that one does not need to be concerned that the gentile would add more expensive specialty non-kosher milk into regular kosher milk. The Pri Chodosh reports that he was living in Amsterdam at the time that he wrote his commentary, and the vast majority of the Torah community there drank the milk sold by gentiles and did not consider it to be chalav akum. He further adds that he himself relied on this approach and drank this milk. The key point of the Pri Chodosh is that there is no requirement that a Jew actually observe the milking, nor is there even a requirement that one be absolutely certain that no non-kosher milk was added. It is adequate if the situation is such that we can assume that the gentile has no incentive to add non-kosher milk to his product, and the Mishnah and Gemara that required a Jew to supervise the milking did so only when the gentile has an incentive to adulterate the milk.

The Chasam Sofer's approach
On the other hand, the Chasam Sofer took tremendous umbrage at people who were lenient in observing chalav Yisrael and used milk from gentiles. He maintained that the requirement that a Jew actually supervise the milking creates a prohibition with the halachic status of davar shebeminyan, a rabbinic injunction that remains binding until a larger and more authoritative body declares the original sanction invalid, even when the reason the takanah was introduced no longer applies (see Gemara Beitzah 5a). Since a more authoritative beis din never rescinded the prohibition on unsupervised gentile milk, consuming this milk involves a serious violation. The Chasam Sofer requires that a Jew be on hand to observe (or be able to observe) the milking, and if a Jew was not there, the produced milk is completely non-kosher because of the rabbinic injunction, even when there is no incentive for the non-Jew to adulterate the product.
In general, Chazal (Bava Basra 110a; Avodah Zarah 27b) invoke the verse uporeitz geder yishachenu nachash (see Koheles 10:8) to mean that someone who violates a rabbinic injunction deserves to be punished by being bitten by a snake, an indication that people should be exceedingly careful not to ignore rabbinic prohibitions. The Chasam Sofer (Shu"t Yoreh Deah #107) writes that someone who ignores the rabbinic prohibition of chalav akum and drinks milk relying that the gentile would not add non-kosher milk deserves this punishment.
Furthermore, the Chasam Sofer contends that even if the Pri Chodosh is correct that when kosher milk is cheaper than non-kosher the prohibition of chalav akum does not apply, since the Jewish people rejected this ruling of the Pri Chodosh, they are prohibited from consuming dairy product that a Jew did not supervise because of the laws of nedarim, vows. Since Jews do not use chalav akum even in places where non-kosher species are not milked, it is considered that they accepted a vow to prohibit unsupervised milk. As a result, it is prohibited min HaTorah to consume unsupervised milk with the full stringency of a vow.

One in-between position
There is an approach in between these two positions, that of Rav Moshe Feinstein and the Chazon Ish (Yoreh Deah 41:4) who contend that in a place where non-kosher milk commands a higher price than kosher milk, it is still prohibited to use non-supervised milk. However, Rav Moshe understands that the takanah did not specifically require that a Jew attend the milking, but that one is completely certain that the milk has no admixture of non-kosher. However, when one is certain that the kosher milk is unadulterated; halacha considers the milk to be "supervised" (Igros Moshe, Yoreh Deah 1:47).
How can one be certain? The Mishnah recommended the most obvious way: have a Jew nearby who may enter at any moment. Of course, we realize that even this method is not foolproof, but it is as thorough as halacha required.
Is there another way that one can be certain? Allow me to use my own example to explain Rav Moshe's approach. Someone runs laboratory tests on some unsupervised milk and concludes with absolute certainty that in front of him is 100% sheep's milk. However, no Jew supervised the milking. Is the milk kosher?
According to Rav Moshe's analysis, this milk is certainly kosher since we can ascertain its source.
In his earliest published teshuvah on the subject, Rav Moshe explained that when the government fines for adulteration of cow's milk, the fear of this fine is sufficient proof that the milk is kosher. In later teshuvos, he is very clear that other reasons why we can assume that the milk is kosher are sufficient proof, including that normal commercial practice is that standard milk is bovine milk (Igros Moshe, Yoreh Deah 1:48, 49). One should note that the Chazon Ish also agrees with Rav Moshe's approach.

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

Contemporary Problem
There is another potential reason why some poskim who in general accept the lenient approaches regarding the prohibition of chalav akum feel that one should be stringent which is because of a common veterinary problem that affects dairy cows called displaced abomasum. I will discuss this topic a different time.

At this point we can answer Shirley's question, which I mentioned above: "I do not understand why some people keep chalav Yisrael today. Do they really think that someone is adding pig's milk?"
Indeed, even in the time of the Gemara, it was probably unheard of for anyone to add pig's milk or, for that matter, for anyone to use pig's milk, since sows are almost impossible to milk. Although most non-kosher species do not allow themselves to be milked (Have you ever tried to milk a cat?), camels, donkeys, and mares can all be milked and produce a palatable product. As a matter of fact, at times there was a large (non-kosher) market for mare's milk because of its reputed health benefits. (See Encyclopedia Talmudis Volume 15 column 178-179.) Contemporarily, there is extensive research at Ben Gurion University about use of some antibodies found in camel's milk for treatment of a host of autoimmune diseases. (The shaylos that result from this last case will need to be dealt with a different time.)
To answer Shirley's question succinctly: Although we can assume that the milk on your supermarket shelf is unadulterated cow's milk, the Chasam Sofer still rules that Chazal prohibited consuming this milk, and this prohibition is in full effect today, even when the reason for the takanah no longer applies. In addition, other rabbonim have voiced different concerns about the kashrus of unsupervised dairy cows.

Stricter than before?
At this point, let us examine the second question I mentioned above: "My friend quoted his rav that it is more important to keep chalav Yisrael today than it ever was before. How could this be?"
One obvious reason for this rav's position is that he holds like the Chasam Sofer that using non-chalav Yisrael incurs a Torah prohibition of violating vows. Furthermore, he may feel that since being lenient on this issue is so rampant one must demonstrate the importance of this mitzvah. He also may be concerned about the displaced abomasums problem.
In Conclusion
Notwithstanding that the Chazon Ish writes the reasons why unsupervised milk is permitted, he never allowed its use; and Rav Moshe similarly advocates being strict, and himself did not rely on the heter. Similarly, it is well known that Rav Eliezer Silver traveled across North America by train taking his own chalav Yisrael milk with him as he went. (I have no idea why it did not spoil en route.) In conclusion, we allow each reader to clarify with his own rav whether his or her circumstances permit relying on using non-chalav Yisrael milk.

This Shiur is published also at Rabbi Kaganof's site

Various Subjects