The Government Strikes Fear into the Heart of Dairy Producers, and Other Factors Relating to Kosher Milk
My defense for owning a shirt bearing the phrase “chalav stam,” simple milk, is that high school boys are weird. After campers chanted it for a month, including at a minor league baseball game in Hagerstown, MD, the phrase — which refers to an intermediate halachic category of milk neither chalav yisrael (Jewish milk) nor chalav nochri (non-Jewish milk, also called chalav akum) — appeared on the NCSY Camp Sports end-of-summer t-shirt three years ago.
Last issue, we inspected pas yisrael, laws covering the status of bread baked by non-Jews, and the concern that its consumption would lead to intermarriage. Alternatively, kashrut underlies the differentiation between Jewish and non-Jewish milk.
Since I haven’t earned rabbinic ordination since the last issue, I am still eminently unqualified on halachic issues. As always, I encourage you to go to your local halachic authority with any questions or even learn through the sources, which can be found in the Yoreh Deah section of their respective works.
The Mishnah (Avodah Zara 2:6) forbids milk produced without Jewish supervision, which the gemara (Avodah Zara 35b) attributes to a fear that the non-Jew might switch the kosher milk with milk of non-kosher animals. It explains that no reliable way exists to visually discern cow milk from that of a non-kosher animal (like a pig).
A few pages later (Avodah Zara 39b), the gemara offers two possible exceptions to allow milk milked by a non-Jew: the flock only consisted of kosher animals, or a Jew was sitting nearby and could get up and look at any point, so the non-Jewish employee wouldn’t dare pull any shenanigans.
The Shulchan Aruch (115:1) accepts both reasonings to permit the milk, while the Rema (ibid.) rejects the former. (As Rabbi Chaim Jachter notes in his article on the topic in Kol Hatorah, this first argument is subject to a halachic dispute that falls outside what this article will address.) The latter leniency, known as mirtas, bears further discussion and is ultimately the source for the primary allowances today.
“The Mishnah (Avodah Zara 2:6) forbids milk produced without Jewish supervision, which the gemara (Avodah Zara 35b) attributes to a fear that the non-Jew might switch the kosher milk with milk of non-kosher animals.”
In the example of the gemara, the non-Jewish milker feared being exposed by the Jewish part-time observer if he were to try anything nefarious. Nowadays, the Chazon Ish (41:4) and Rabbi Moshe Feinstein (Igros Moshe 1:46-47) argue, the government fills that same role. Since government agencies verify the origin of labeled cow milk and violators face steep consequences, the status of mirtas applies, according to these two great halachic authorities of the twentieth century. Chalav stam colloquially refers to this type of milk, which doesn’t neatly fall into the categories of chalav yisrael or chalav nochri.
The Chasam Sofer (107) and Pischei Teshuva (115:3) take a different, more stringent approach. They put forth that the Jewish people accepted the decree against non-Jewish milk not watched by a Jew as a vow which can’t now be broken, floating the possibility of a Biblical injunction against breaking vows. The Chasam Sofer further invokes the rule of Beitzah 5a: Something decreed by a vote of the Beis Din can only be nullified by a subsequent equal or greater Beis Din (i.e the Great Sanhedrin, which we no longer have), even if the underlying circumstances no longer apply.
“Since government agencies verify the origin of labeled cow milk and violators face steep consequences, the status of mirtas applies, according to [the Chazon Ish and Rabbi Moshe Feinstein,] two great halachic authorities of the twentieth century.”
The Aruch Hashulchan (115:5) strikes a middle ground. He rules that none of the aforementioned leniencies hold water and chastises Torah scholars who follow them; nevertheless, he acknowledges that the masses utilize these allowances after seeing leaders of the generation use them. He cautions that anyone interested in “guarding their soul” should take care to only consume chalav yisrael products. Similarly, Rav Moshe (Igros Moshe 1:47) writes that although relying on chalav stam certainly falls within the acceptable halachic bounds, he, personally, only consumed chalav yisrael and encouraged the same of others.
The Pri Chadash (115:15) offers an even more lenient approach, albeit one not widely accepted. He argues that the prohibition against chalav nochri doesn’t apply if cow milk is cheaper than the milk of non-kosher animals since, in such a scenario, a non-Jew lacks incentive to switch the milk. Rav Moshe (Igros Moshe 1:46), among others, rules against the Pri Chadash. The applicability of this opinion when combined with other factors is beyond the scope of this article.
“Although the concepts of pas and chalav yisrael come from the same place (Avodah Zara 2:6), they were enacted for different reasons, leading to exceptions that apply in different circumstances.”
Lastly, an important disclaimer to government-inspired mirtas: Rav Moshe only ruled based on the rigorous labeling process enforced by the United States government. In other countries, where governments may not enforce food laws as closely, one should consult a knowledgeable authority. Even in Israel, the Chief Rabbinate generally rules stringently against unsupervised milk for a variety of reasons (see former Sephardic Chief Rabbi Eliyahu Bakshi-Doron in Techumin 23:463).
Although the concepts of pas and chalav yisrael come from the same place (Avodah Zara 2:6), they were enacted for different reasons, leading to exceptions that apply in different circumstances. In any event, even the more lenient authorities encourage eating chalav yisrael products as a stringency, which is why Rabbi E won’t take you up on an offer to eat the ice cream at mishmor. However, those decisors make clear that there is no problem relying on chalav stam, which is why Rabbi E provides it to students in the first place.
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