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The Crown of Halacha

Chalav Yisroel vs. Chalav Akum vs. Chalav Stam II

This entry is part 10 of 12 in the series Rav Bloomenstiel

By Rav Avraham Chaim Bloomenstiel

Continued from Part I

Rav Moshe’s Teshuvos on Chalav Yisroel

As is commonly known, in the 1950’s Rav Moshe Feinstein, ztz”l authored a series of famous teshuvos (Igros Moshe YD I:47, 48, 49) that had massive impact on the observance of chalav yisroel, gevinas yisroel, and other areas of dairy kashrus. Though brilliant and unique, these teshuvos are often misunderstood. The most common misunderstanding is that Rav Moshe paskened that chalav Yisroel does not apply in the US, or that Rav Moshe gave a heter for chalav stam/chalav akum. Neither of these assertions is accurate. Rav Moshe’s teshuva is not a “heter” which permits chalav akum and obviates the requirement of chalav Yisroel. Rather, it is a kula which seeks to define the boundaries of chalav yisroel milk in the United States. However, Rav Moshe clearly holds that American Jews are bound to the law and required to consume only chalav Yisroel products. The question is: What is chalav Yisroel?

There are two fundamental issues Rav Moshe addresses in his teshuva. The first is: If you could create a situation of mirsus absent Jewish supervision, would the milk then be kosher? According to the Pri Chodosh the whole problem is the possibility of tamei milk being added, a problem which is countered by mirsus. In our country the government, via the USDA, strictly regulates milk production and heavily penalizes anyone who vitiates bovine milk with milk from other animals. This system of supervision would appear to create mirsus. Accordingly, Rav Moshe paskened in YD I:47 that the fear of government penalties is enough to permit the milk for Jewish consumption. This first point fundamentally satisfies the Pri Chodosh’s interpretation of the prohibition of chalav akum.

However, the second issue that the Rav has to address is the Chasam Sofer’s view. If the issur of chalav akum is a davar shebi-minyan, then Jewish supervision will be required regardless of the probability of tamei milk being present. To allay this concern, Rav Moshe invokes the principle of anan sahadi. This Talmudic concept provides that, under certain limited circumstances, knowledge of an event is comparable to witnessing the event itself. In the case of milk production, since we all know that the government is supervising the production of milk, and since those producing the milk know they are being watched, and since the consumers know that the producers are being watched, then it is as if we are actually witnessing the milking ourselves. Rav Moshe writes that even the Chasam Sofer would accept this reasoning. Although such is Rav Moshe’s psak, he concludes that a ba’al nefesh should be strict and not rely upon federal supervision.

What emerges is that Rav Moshe is not giving a heter to exempt anyone from the requirement of chalav Yisroel. On the contrary, Rav Moshe is stating one must hold by chalav Yisroel. Rather, Rav Moshe is learning a kula that milk supervised by the government (chalav stam, as it is called) qualifies as chalav yisroel!

Accordingly, “Do you keep chalav Yisroel?” is really the wrong question in the United States. The right question is “Do you hold that USDA supervised milk is acceptable as chalav Yisroel?”

The Reaction to Rav Moshe’s Psak

To this teshuva there was substantial agreement either in whole or in principle from several very prominent American gadolim including Rav Yosef Henkin, Rav Yaakov Kamanetsky, and many others. Although Rav Moshe’s teshuva has had been widely accepted in the US and other countries with strict federal supervision, it does exhibit a potential vulnerability which has come under scrutiny.

A number of eminent poskim, including Rav Breish in the Chelkos Ya’akov, the Minchos Yitzchok, Rav Wozner in the Shevet haLevy, point out that, while Rav Moshe’s teshuva satisfies the Pri Chodosh, it fails to satisfy the Chasam Sofer. The problem, according to these dissenting authorities, is Rav Moshe understanding of anan sahadi. Anan sahadi is an abstract legal concept awarding certain common knowledge the status of legally valid testimony in the context of legal proceedings. A Jew’s watching of the milking isn’t a situation of bearing witness or testimony. Instead, it is intended to create mirsus or is a specific requirement of a davar shebi-minyan. According to the Chasam Sofer, you must have a Jew physically present and it is not possible for anan sahadi to satisfy a requirement of physical presence.

This complaint is not limited to only Ashkenazi poskim; Rav Ovadya Yoseif in his Yechave Da’as and Rav Mordechai Eliyahu both state that Rav Moshe’s teshuva only successfully satisfies the Pri Chodosh, not the Chasam sofer. Furthermore, Rav Ehud Bakshi Doron has explained that many hold the issur of chalav akum may well be to limit social interaction between Jews and non-Jews. According to these poskim, Rav Moshe’s kula cannot be relied upon. Nevertheless, as mentioned earlier, there were many great poskim who accepted Rav Moshe’s decision and who were of equal stature to his detractors. As a result the Rav’s teshuva is widely relied upon in the United States and in a few other English speaking countries.

It is interesting that support for Rav Moshe may be found in the Chazon Ish. The Chazon Ish holds that the fundamental basis of chalav Yisroel is according to the Pri Chodosh and not the Chasam Sofer. Accordingly then, Rav Moshe’s teshuva succeeds in satisfying the fundamental intent of the halacha. However those who knew the Chazon Ish, such as Rav Yaakov Kanievsky, ztz”l and others, have stated that he personally only relied on this reasoning in very dire circumstances and even then for milk derivatives only. Normally, though, he only drank milk that was properly supervised. Nevertheless, that the Chazon Ish understood the Pri Chodosh as the ikkar is a support for Rav Moshe’s kula.

Powdered Milk

Most of the usual questions regarding the observance of chalav Yisroel concern powdered milk. Many dairy products in the US are not produced with liquid milk, only powdered milk. A good example is milk chocolate. Milk chocolate must be made with powdered milk, not liquid milk, or else the chocolate will not properly solidify.

In 1944, Rabbi Tzvi Pesach Frank paskened it was mutar to consume non-chalav Yisroel powdered milk imported from the US. The Rav formulated his heter by comparing powdered milk production to butter production. Butter, as is well known, has numerous leniencies. For example, it does not need the same level of supervision as other dairy products and chalav Yisroel is not a major issue in butter kashrus. Rav Frank paskened that, while federal supervision was not enough to render actual milk chalav Yisroel, powdered milk was muter without Jewish supervision because it is halachically more similar to butter than to actual milk. He concludes that we can be lenient and rely on government supervision with certain milk by-products such as powdered milk and butter, but not by actual milk.

The Chazon Ish, however, vehemently disagreed with Rav Frank. Rav Karelitz explained that butter’s leniencies exist because, as the Rambam writes, an admixture of kosher milk and non-kosher milk cannot become butter. Since it cannot become butter, we are not concerned for about the addition of non-kosher milk. Chalav akum is simply not relevant to butter.

Powdered milk, though, according to the Chazon Ish, can be made regardless as to whether its source is tamei or tahor. Therefore, chalav akum remains an issue with powdered milk as well.

In defense of a powdered milk heter, the Tzitz Eliezer, Rav Eliezer Yehuda Waldenberg ztz”l, offered a fascinating alternative to Rav Frank’s reasoning which circumvents the objections of the Chazon Ish. When a bottle of never-supervised non-Jewish milk is sitting in the store, it is not prohibited to a Jew. Likewise, there is no requirement for the milk to be chalav Yisroel. The requirement of chalav Yisroel only comes when the Jew is koneh the milk. At that point the prohibitions and requirements of cholov akum/chalav Yisroel become effective. However, when a Jew acquires powdered milk, there is no actual milk present upon which the prohibition can fall. The reason is that powdered milk is not nikhlal in the shem “chalav,” and therefore lies beyond the boundaries of the original rabbinic decree.

Practically speaking, these teshuvos only represent a fraction of the total discussion of the issue and the question remains debated even today. As a result, you have those in the US who are lenient and those in the US who are strict on chalav Yisroel by powdered milk.

Other Dairy Products

What about chalav Yisroel and other dairy products? Due the numerous rulings of the contemporary poskim, there is much diversity in applying chalav Yisroel to modern dairy kashrus.

Butter – There are numerous leniencies enabling one to consume butter produced from non-chalav Yisroel milk. In fact, the custom for centuries was even to treat pure butter as 100% kosher without any supervision or hashgocha! As stated earlier, butter cannot be produced if kosher and non-kosher milks are mixed. However, the situation has changed today. Nowadays, many butter producers seek to enhance flavor by adding whey. More often than not, this whey is a by-product from the manufacture of non-kosher cheeses. The ramification is that butter must have a hekhsher nowadays, although many do not require it to be chalav Yisroel.

CheeseLechatchila, cheeses should be made with chalav Yisroel milk. But, why state “lechatchila?” Shouldn’t we say that even b’dieved cheese must be produced from chalav Yisroel milk? The answer is that Rav Moshe’s kula, in combination with a statement of the Rama in Shulchan Aruch, combine to create a fascinating leniency by cheese. Rav Moshe would allow cheese to be produced with USDA supervised milk (chalav stam – which is chalav Yisroel according to his understanding). If we are to accept Rav Moshe’s ruling, then, naturally, the resulting cheese is chalav Yisroel. If we are to reject Rav Moshe’s rationale, we do not necessarily say that the cheese is, b’dieved, prohibited. The reason is that Rama paskens that b’dieved cheese made from chalav akum is kosher provided that a Jew was involved in the production of the cheese (this is because of a separate halacha called gevinas akum/gevinas yisroel that requires Jewish participation in the cheese-making process). Part of his rationale is that, again, non-kosher milk does not easily become cheese. Therefore, whether one relies upon Rav Moshe or not, there is some room for leniency with non-chalav Yisroel cheeses (all cheeses, whether chalav Yisroel or not, must have a hekhsher; there are numerous other kashrus concerns pertaining to cheeses).

Milk Chocolate, Cereals, and Other Powdered Milk Products – If one holds of Rav Moshe, then all US dairy products, powdered or liquid are chalav Yisroel. However, there are authorities who, though they reject Rav Moshe’s kula for chalav Yisroel, nevertheless exempt powdered milk from the requirements of chalav Yisroel. These authorities would require the observance of chalav Yisroel by all US liquid milk products, yet permit non-chalav Yisroel powdered milk.

The Practical Observance of Chalav Yisroel

There are, roughly, six different methods by which one could be said to fulfill the mitzvah of avoiding chalav akum and consuming chalav Yisroel:

1) All US produced dairy products are considered chalav Yisroel. This approach is a complete acceptance of Rav Moshe’s kula. Though Rav Moshe accepts all US dairy products as chalav Yisroel, this is provided that the products are kosher to begin with. It is true that, at the time Rav Moshe authored these teshuvos, it would have been permissible to buy milk without a hekhsher. However the situation changed dramatically a few years ago. The cause of this change is a little known medical condition affecting many US dairy cows termed “left displaced abomasum.” Due a high carbohydrate diet and lack of exercise amongst American dairy cattle, these cows sometime develop tissue abnormalities in the wall of abomasum, the fourth stomach. As the stomach fills with gas during digestion, it becomes distended and displaced across the ventral line from the right to the left side of the animal. As the organ shifts it often introduces a fatal twist into the intestines. There are five procedures used to correct the condition if detected early enough. The most common treatment is to manipulate the stomach back into place and then secure it with a surgical staple through the body wall. While this certainly relieves the animal’s discomfort and saves its life, the procedure also renders the animal treif. Since the halacha is that anything which comes from a treifa animal is also non-kosher, the milk of these cows will also be treif. Initially, many rabbonim sought to permit the milk made from these animals via bittul. Yet, it quickly became apparent that this surgery had been executed on between 3% and 15% of the herds surveyed; far more than the 1.63% threshold for bittul. When this story broke, thanks to a perceptive mashgiach, kosher dairy production temporarily ground to a halt. All dairy produced in the US now requires a hekhsher to assure that cattle having undergone this corrective procedure have been removed from the kosher milking herd or that other appropriate precautions have been taken.

2) Liquid milk must be chalav Yisroel, yet powdered milk, cheeses, and butter only require a hekhsher. This configuration is like the numerous poskim who are doubtful of Rav Moshe’s reasoning. However, it also accepts the rulings of Rav Tzvi Pesach Frank and Rav Waldenberg that chalav Yisroel does not apply to powdered milk. Additionally, this position takes into account the Rama’s leniency that chalav Yisroel may not be required b’dieved for cheeses and that the prohibition of chalav akum does not apply to butter.

3) Only milk and Cheese must be chalav Yisroel. This arrangement is similar to the previous with the exception that cheeses are required to be chalav Yisroel. The Rama’s heter to allow non-chalav Yisroel cheese is not universally relied upon in the Ashkenaz community. Therefore, there are many who will require both milk and cheese to be chalav Yisroel, yet will retain the aforementioned leniencies for butter and powdered milk.

4) All dairy products must be chalav Yisroel excluding powdered milk and/or butter. In the United States this approach covers most of the basics. The reason for many in the US to accept the heter of Rabbis Frank and Waldenberg is that it functions in combination with Rav Moshe’s leniency that American produced milk may be legitimate chalav Yisroel. Many as well exclude butter from the concern of chalav akum due to the opinion that butter cannot be produced from tamei milk. However, many only extend leniency to powdered milk and require that butter be produced from chalav Yisroel milk.

5) All dairy products must be chalav Yisroel. This approach is the strictest of the four aforementioned configurations. Though it removes any doubt as to transgression, this method of observance also rejects many customs and leniencies relied upon by pious Jews for centuries. Many who observe the halacha in this manner, are nevertheless lenient with the blias of chalav stam. This was the opinion of Rav Yaakov Kamanetsky and many other American gadolim who, though they only consumed only chalav Yisroel, were not strict about food cooking in pots previously used for non-chalav Yisroel dairy. Additionally, those who hold this way are willing to accept many of the leniencies we have discussed in cases of loss or difficulty.

6) All dairy must be from chalav Yisroel milk, the blias of non-chalav Yisroel milk are prohibited, and there are virtually no acceptable leniencies. This stringent approach is usually associated with the Lubavitch chassidim. Curiously, Lubavitch does not base nor defend their approach upon any halachic source. Rather, they have a tradition that one of their rebbes attributed the abandonment of Yiddishkeit by a certain chosid to his use of non-chalav Yisroel dairy. Accordingly, Lubavitch believes a metaphysical relationship exists between dairy kashrus and the level and purity of one’s emuna. For this reason, Chabad accepts virtually no leniencies in their observance of chalav Yisroel.

Choosing which of these approaches to practice cannot be done arbitrarily.  An individual and his or her spouse should decide their approach to chalav Yisroel based on their needs, background, the standards of their community, and the needs of their children.  In short: a family’s approach to observance of chalav Yisroel must be made in consultation with a trusted Rabbi.

Conclusions

The applicability of chalav Yisroel/chalav akum in the USA has never been at issue; rather, the debate has focused on the definition of chalav Yisroel and the exact status of federally supervised milk. However, the applicability of chalav Yisroel to other dairy products has been disputed. Historically, chalav Yisroel has never been a concern by butter, although some are strict. In recent times, several poskim have innovated leniencies for powdered milk. While some accept these leniencies, others do not differentiate between powdered milk and liquid milk except in dire circumstances. Additionally, there are bidieved leniencies existing for cheeses that are relied upon by some. The result of this diversity of rabbinic opinions is that there are several valid methods of fulfilling the requirement of chalav Yisroel, all of which can find endorsement amongst the greatest of halachic authorities. As we know, Torah lo bi-shamayim hi, and the deciding authority for halacha is in the hands of the poskim and gadolim. One whose observance of chalav Yisroel is rooted in their da’as cannot, chas ve-shalom, be seen as a transgressor or in error.

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