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Dairy Products Produced by a Non-Jew

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Aug 2, 2007
The Mishna, Avodah Zarah 35b, presents a prohibition against drinking milk that was milked by a non-Jew (chalav akum). The Mishna, Avodah Zarah 29b, also presents a prohibition against eating cheese that was produced by a non-Jew (gevinat akum). This week's issue will discuss some of the practical applications relating to these two prohibitions.

Chalav Akum
The Gemara, Avodah Zarah 35b, states that the reason for the prohibition against drinking milk that was milked by a non-Jew is that there is a concern that milk from a non-kosher animal was mixed into the milk. [See Gemara, Bechorot 6b, for an explanation why milk from a kosher animal is kosher and milk from a non-kosher animal is not.] The Mishna, Avodah Zarah 39b, states that if a Jew watches the milking process, one may drink milk that was milked by a non-Jew. The Gemara, ad loc., based on a Beraita, states that it is not actually necessary for the Jew to watch the milking process. It is sufficient for the Jew to have the ability to inspect the process at any time such that the farmer fears the consequences of getting caught mixing in non-kosher milk.

Radvaz 4:75, deduces from the leniency that allows a Jew to perform spot checks that the prohibition is not a function of a rabbinic enactment. Rather, there is an actual concern for a biblical prohibition. This concern is mitigated through performing spot checks. Were it to be an actual rabbinic enactment, the only way to permit the milk would be if a Jew actually watches the entire milking process. R. Chizkiah Da-Silva, P'ri Chadash, Yoreh De'ah 115:6, derives an important leniency from Radvaz's position. Regarding rabbinic enactments, there is a rule that the enactment cannot be overturned even if the reason no longer applies (Beitzah 5a). If the prohibition against chalav akum is a rabbinic enactment, the enactment would apply even if the reason does not. However, according to Radvaz, there is no rabbinic enactment, but rather a concern for a bona fide biblical prohibition. If that concern can be mitigated by determining that there is no concern that non-kosher milk is mixed in, one may drink milk that was milked by a non-Jew. Therefore, P'ri Chadash rules that if one lives in a place where non-kosher milk is never added to kosher milk, the prohibition of chalav akum does not apply.

R. Moshe Sofer, Chatam Sofer, Yoreh De'ah no. 107, disagrees with P'ri Chadash's ruling. He suggests that Rashi, Avodah Zarah 35a, s.v. L'fi, is of the opinion that the prohibition against chalav akum is a rabbinic enactment. Therefore, even if there is no actual concern that non-kosher milk is mixed in, one must nevertheless refrain from chalav akum.

R. Avraham Y. Karelitz, Chazon Ish, Yoreh De'ah 41:4, discusses the status of milk that is subject to the scrutiny of the government such that the government would fine the producer for mixing in non-kosher milk. He permits the milk based on two factors. First, the government supervision may be comparable to a Jew who performs spot checks. In both situations, the producer fears to add non-kosher milk. Second, since there is no practical concern that non-kosher milk will be added, one may add the opinion of P'ri Chadash as a mitigating factor to permit the milk. R. Moshe Feinstein, Igrot Moshe, Yoreh De'ah 1:47, also discusses the issue of government supervision. He is reluctant to rely on the opinion of P'ri Chadash. However, he considers the government’s supervision equivalent to a Jew watching the milking process. He posits that the nature of the rabbinic enactment is to discredit any assumption that the milk is actually kosher milk and to require knowledge that the milk is kosher. R. Feinstein claims that when the government supervises milk and the producer is subject to fines for any violation, there is knowledge that the milk is kosher. R. Feinstein concludes that a pious individual (ba'al nefesh) should nevertheless be stringent on the matter.

The opinions of R. Karelitz and R. Feinstein serve as the basis for the practice of many people to drink milk that is not specifically marked as "chalav yisrael." It should be noted that this leniency does not apply in a country where there is no government supervision on the milk.

Cheese, Butter and Powdered Milk
The Gemara, Avodah Zarah 35b, notes that non-kosher milk will not turn into cheese. For this reason, Hagahot Ashri, Avodah Zarah 2:40, rules that one may eat cheese that was made from milk that would otherwise have been considered chalav akum (assuming the prohibition of gevinat akum is not relevant). This ruling is cited by Rama, 115:2.

A similar discussion applies to the use of butter that is produced by a non-Jew. Rambam, Hilchot Ma'achalot Asurot 3:15-16, cites a dispute among the Geonim as to whether one may purchase butter from a non-Jew. Rambam explains that non-kosher milk cannot be churned into butter. However, if there is non-kosher milk in a mixture, the non-kosher milk may get caught in the air pockets of the butter. Some Geonim are concerned for the presence of non-kosher milk in the air pockets and some are not. Rambam posits that if the butter is cooked, everyone will agree that there is no concern for the presence of non-kosher milk.

Chatam Sofer, op. cit., asks: if in fact the prohibition against chalav akum is a rabbinic enactment, how can one employ a special leniency for cheese or butter? He answers that the rabbinic enactment is limited to ingesting milk in its original form. The enactment never included cheese, butter or other dairy products. For this reason, R. Tzvi P. Frank, Har Tzvi, Yoreh De'ah no. 103, suggests that the prohibition against chalav akum may not apply to powdered milk.

Gevinat Akum
The prohibition against cheese that was made by a non-Jew exists independent of the prohibition against chalav akum. If a non-Jew produces cheese with milk that is not considered chalav akum, the cheese is nevertheless prohibited. There are a number of opinions presented by the Gemara, Avodah Zarah 35a, as to why gevinat akum is prohibited. Rambam, Hilchot Ma'achalot Asurot 3:14, writes that the prohibition is due to a concern that the non-Jew used a non-kosher enzyme to produce the cheese (a combination of a few of the reasons presented in the Gemara). Rambam notes that this prohibition applies even if one knows that the enzyme is actually kosher.

Maharam MeRutenburg, Teshuvot Maharam (Prague edition) 4:374, rules that the only way to permit cheese that is owned by a non-Jew is for the Jew to place the enzyme into the milk. Sefer HaAgudah, Shabbat no. 191, disagrees and maintains that it is sufficient if a Jew watches the placing of the enzyme. Rama, Yoreh De'ah 115:2, rules in accordance with the opinion of Agudah. Shach, Yoreh De'ah 115:20, disagrees and maintains that the Jew must place the enzyme into the milk. However, Shach presents another leniency. He rules that if the owner of the milk is Jewish, the cheese is permitted even if a non-Jewish employee makes the cheese.

Soft cheeses such as cottage cheese and cream cheese (also known as acid-set cheeses) do not require an enzymatic process, although it is commonly used to speed up the process. R. Moshe Feinstein, Igrot Moshe, Yoreh De'ah 1:50, discusses whether these "cheeses" should be comparable to butter, where there is no prohibition of gevinat akum or similar to a classic cheese and apply the prohibition. R, Feinstein does not draw a definitive conclusion on the matter and recommends treating them as subject to gevinat akum.


References: Avoda Zara: 35b 

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