by Rabbi Yair Hoffman for 5TJT.com

This article was written l’zecher Nishmas the author’s father-in-law, Rabbi Yaakov Hirsch z”l, whose 16th yahrtzeit is this evening the 23rd of Shvat.

Recently, an askan passed away and in his private papers – a letter from Rav Moshe Feinstein zt”l was found. The letter was brought to light by Rabbi Chaim Dalfin of Borough Park. It seems that the askan had asked one of the Jewish hospitals as to why they did not provide Cholov Yisroel dairy meals to their patients.

The hospital administrator replied that they relied upon the leniency of Rav Moshe zt”l. The Askan asked Rav Moshe directly about whether New York hospitals should be lenient and the following responsum was his reply:

Oct. 23, 1963,

Regarding the matter of milk from companies, even though there are reasons to be lenient, certainly these [leniencies] are only for a place where there is no cholov Yisroel available that is under G-d-fearing Rabbis. But in a place where cholov Yisroel under supervision and the like is available all matter regarding milk one must be stringent. Certainly, for those who in their homes are careful to only eat supervised cholov Yisroel, we must be careful – for it is also a concern of violating an oath. It comes out that also in a kosher hospital where they serve only kosher – they should enact whatever is possible to obtain dairy items that are supervised [cholov Yisroel], for here in New York, there is no difficulty [in obtaining it]. At the very least they should obtain supervised milk for those that are careful in it in their homes and not to force them, Heaven forbid, to consume there what they are careful not to eat.

[Rav] Moshe Feinstein

ה’ מרחשון תשכ”ד

בדבר חלב הקאמפאניעס אף שיש טעמים להקל ודאי שהוא רק במקום שליכא חלב ישראל שהוא תחת השגחת רבנים יראי ה’ אבל במקום שאיכא חלב ישראל שהוא בהשגחה וכדומה כל עניני חלב צריך להחמיר וכל שכן אלו שבבתיהם נזהרין לאכול רק מחלב ישראל שבהשגחה צריכין להזהר שהוא גם מחשש ענין נדרים, וממילא גם בהאספיטעלער המתנהגים במאכלי כשר שיש להם לתקן מה שאפשר להם בזה להשיג מאכלי חלב שבהשגחה כי בפה נוא יארק ליכא בזה שום דוחק. ולכל הפחות ישיגו מאכלי חלב שבהשגחה לאלו שנזהרין בזה בבתיהם ולא לכוף אותם חס ושלום שיאכלו שם מה שנזהרים שלא לאכול.

נאום משה פיינשטיין

BACKGROUND

For those who may be unaware, the Mishnah in tractate Avodah Zarah (35b) forbids the consumption of milk that a gentile had milked unless a Jew supervises the milking process. This is the ruling of the Shulchan Aruch as well (See Yore Deah 115:1), the authoritative code of Jewish law.

The prohibition is called “chalav akum.” On the other hand, milk that was supervised by a Jew is called “Cholov Yisroel.”

RABBINIC IN ORIGIN

The prohibition is rabbinic in origin and, according to all halachic authorities, there is no question that it is a serious prohibition that is still in force. The question rather is, does the prohibition also apply to milk produced under some form of a government regulation?

Those that certify Hershey bars and Häagen-Dazs ice cream claim that the government regulations exempt the milk from the requirement of the Mishna. Others are more stringent and disagree.

The leading halachic authority who exempted government regulated milk from the requirement of the Mishna was Rabbi Moshe Feinstein zt”l, one of the leading Poskim of the 20th century (See Igros Moshe YD I #47 and #49 and YD III #17). Indeed, Rabbi Feinstein even coined the term “Cholov Stam” to describe and differentiate government regulated milk from Cholov Yisroel milk that is actually supervised by observant Jews.

NOT ACCEPTED BY THE CHASSIDIC WORLD

Most of the Chasidic world, never accepted the leniency. In Israel, things are slightly different than in the United States regarding the labeling of Kosher dairy from outside of Israel. The Chief Rabbinate permits chalav akum milk powder, and does not and never permitted chalav akum liquid milk.

The distinction between liquid milk and milk powder was argued in the early 1940’s by Rabbi Tzvi Pesach Frank, the former Chief Rabbi of Jerusalem, in responsa Har Tzvi YD 113 and in many circles has been a more accepted leniency than the heter espoused by Rabbi Feinstein. The Avnei Naizer #103 also permits it and it is a debate as to whether the Chazon Ish permitted it as well. The Chazon Ish discusses it in YD 41:4 but Rav Shternbuch writes that the Chazon Ish only allowed it for sick people (TvH 1:441 and II:373).

IS THE ORIGINAL BASIS FOR HETER STILL THERE?

There is also a growing number of people within the Orthodox Jewish community who claim that the original basis for allowing the consumption of Chalav Stam may no longer be there.

Is it true? Has the Federal government of the United States changed its guidelines?

During Rav Moshe Feinstein zatzal’s lifetime, the Food and Drug Administration of the Department of Health and Human Services would test dairy plants for specific fat contents.

Government inspectors would take milk samples and inspect fat and casein ratios. If there was any irregularity an investigation could be launched. It was upon this basis that Rav Feinstein ruled that the “fear” of the government inspection on the part of the dairy owner constituted a “fictitious or virtual Jew” who oversaw the milk production.

He ruled that there was an “Anan Sahadi” – where the whole world testifies that the dairy owner is not adulterating the milk with other milk from a non-kosher source.

According to the Orthodox Union, however, the situation has changed somewhat. The December ’08 edition of the Kashrus newsletter of the OU reported a new basis for a leniency, but does report changes. The link on their site referenced is no longer active (Formerly http://www.oukosher.org/ index.php /articles/ single_print/1377721) – however, a new link can be found at: https://oukosher.org/content/uploads/2013/02/Daf-17-3b.pdf

Now milk samples are only analyzed for bacteria counts and for the presence of anti-biotics. Thus, the original basis for Rav Moshe Feinstein zatzal’s heter for Cholov Stam may no longer exist and must be replaced with a different reasoning.

REVAMPED HETER

OU Poskim, make a case for continuing a different type of Heter for “Cholov Stam” consumption. Rav Yisroel Belsky zt”l ruled that a new heter may be relied upon for those who wish to continue eating non-Cholov Yisroel.

This new Heter is based upon state inspections (not federal inspections) of the dairy farms (not the dairy plants.) In the OU’s own words, they are continuing to serve those who wish to continue eating Cholov Stam “As evidenced by the above Psak.., the OU continues to pave the way in Kashrus technical data..”

Indeed, some say that the current Heter, halachic leniency, may even be better than the one given during Rav Moshe Feinstein’s lifetime. They argue that inspections happening at the farm are better than at the dairy plant and may even create a greater “mirsas” – fear of authorities which still creates a form of fictitious Jewish supervision.

But it should be made clear that the Food and Drug Administration is no longer making these inspections and that they are conducted now at a state level.

In the past, other Rabbonim pointed out that Rav Feinstein’s heter no longer applied when the Federal government changed their regulations to allow additives to the milk. Over ten years ago, Rabbis at Ner Yisroel Rabbinical Seminary in Baltimore stressed the need to re-assess the heter when standards were relaxed to allow Vitamin D as an additive.

Some of them urged their followers to change to full Cholov Yisroel compliance.

It may be argued that state inspections of farms vary from state to state and may even vary within each state based upon new budget cuts initiated within each state. Many states are undergoing financial crises. Who is to say that state governors will not slash the budgets of state dairy inspectors and rely rather on voluntary compliance?

Those who once followed Rav Moshe Feinstein zatzal’s permissive rulings are no longer relying upon his specific initial ruling – they are relying upon similar, but new rationales. One may speculate that perhaps Rav Feinstein might have permitted it based upon the state inspections and based upon the fact that the farms are being inspected rather than the dairy plants. However, this is not necessarily the case.

DISPLACED ABOMASUM AND BLOATING CONTROVERSY – DA COWS

“DA Cows” is a term that, for some strange reason, only people in the Kashrus industry seem to know about. According to some authorities, there is another issue that has changed in the decades since Rabbi Moshe Feinstein’s published leniency. The issue is a possible treifus concern regarding surgical remediation of a growing problem known as “the displaced abomasum.” Cows that have had the operation are called “DA Cows” and the hechsherim that supervise Cholov Yisroel remove DA Cows from the lines. They vary as to how many supervisors are there to ensure that DA Cows do not inadvertently enter the lines. Generally, a chip on the cow’s ear which can be read by a smartphone – reveals its medical history. But let’s get back to how it works.

The abomasum is the fourth, or “true,” stomach of the cow. Normally, it lies low down in the right front quadrant of the abdomen, inside the seventh through 11th rib. Adjacent to the abomasum, on the left side of the abdomen, is the large first stomach, or rumen.

TWO TYPES OF DISPLACEMENT

There are two types of displacement. The abomasum occasionally may be displaced to the left of the rumen and upwards when the muscular wall loses its tone and the stomach becomes filled with gas. This condition is left abomasal displacement.

Another type of displacement, is when the abomasum goes higher on the right side underneath the last ribs. Here too it is enlarged with gas and some fluid. Sometimes the right displaced abomasum turns into a fatal abomasal torsion.

In both of these displacements the entrance and exit to the stomach become kinked. The kinks, together with the gas and fluid distension, slow food passage to a slower-than-normal rate. Abomasal displacement is seen almost exclusively in dairy breeds. No one really knows what causes it exactly, but there are many theories ranging from the rise of corn as feed to the different roughage concentrations that the cows now eat.

LDA, [Left Displacement of Abomasum] is the more common of the two.

Regardless, the incidence of abomasal displacements has increased tremendously in the last two decades, and many farmers have a surgery performed on these cows. The treatment requires surgically replacing the abomasum back into its normal position. The veterinarian also prevents recurrence by tacking or stapling the abomasum to the body wall. Cholov Yisroel companies are now very careful not to include animals that had this surgery on account of a concern that these cows may be considered Treifos.

BLOATING

There is another issue with cows called “Ruminal Tympany” or “Bloat” or bloating. This is actually the most common cause of death in adult cows. Bloating, essentially, is a build-up of gas in the rumen. This gas is produced as part of the normal process of digestion. Normally, the gas is released through burping (eructation is the fancy word). Bloat happens when burping can’t.

There are two types of bloat – Gassy bloat when there is an obstruction in the gullet or when the animal has milk fever or tetanus and just cannot burp.

The second type of bloat is called frothy bloat, when there is a stable foam developing on top of the rumen liquid. This is the most common type and it blocks the release of the gas. This is by far the most common form of bloat, but it is seasonal.

A cow can die in 15 minutes if it has bloat.

HOW IT IS TREATED

When a cow has gassy bloat it is best treated by inserting a stomach tube and the gas will come out. Sometimes, the farmer will insert a trochar and cannula punching it through the side of the cow.

For frothy bloat, they insert anti-foaming agents into the stomach tube that disperse the foam.

They used to use linseed oil and turpentine for this, but now dimethicone or polaxolene are used.

Rav Moshe Feinstein zt”l was consulted on the issue of bloating and wrote a responsum in Igros Moshe YD I #20 – addressing it and its treatment. He did not directly address DA cows.

Many authorities do permit DA cow surgery, however. Rabbi Yisroel Belsky zt”l from the OU has stated several times that this issue is not new and that the issue was presented to Rabbi Feinstein during his lifetime and he permitted it.

However, Rabbi Asher Zimmerman, zt”l told this author that the leniency in this case is far from simple and was one of the Rabbis that spearheaded the changes when the issue arose once again in the very late 1980’s.

There is another issue of C-section surgeries which can also produce possible treifos problems.

BUTTER

Yet another change in Cholov Yisroel halachic leniencies has occurred in butter. The Ramah in the Shulchan Aruch allows the consumption of non-Cholov Yisroel butter and Ashkenazic Jewish families that were careful to only eat Cholov Yisroel were lenient in regard to butter based upon this Ramah. The United States, however, changed the ingredient listing requirements a number of years ago and allowed companies to include whey in the butter mix without changing the ingredients. In other words, a butter company can still label the product 100% grade A butter even though whey products may be included in the butter mixture.

Since whey is significantly cheaper than butter and is a solid, there is a concern that whey is included in the butter.

This is another example as to how modern changes in both the law and in manufacturing affects halachic observance. Many Cholov Yisroel families are unaware of this change. This is why it can be important to be up to date.

HISTORY

As a historical point, the first commercial Cholov Yisroel dairy in the United States was started in Ozone Park, Queens in 1903, by Isaac Balsam, a Melitzer Chassid, originally from Poland. At its peak his farm had over 300 cows and he had a shul on the farm as well. The area is now known as Balsam Village.

It is also interesting to note that, contrary to popular thought, Rav Feinstein was not the first authority to allow the consumption of non-Cholov Yisroel milk produced in the United States. In the 1930’s, some of the Cholov Yisroel producers were not so scrupulous in their business practices, and knowing that they had a relatively captive market, tended to water down the milk to increase profits.

Rabbinic leaders were incensed and, until the situation would be rectified ruled that, under such circumstances, one would be permitted to adopt the lenient view of the Pri Chodosh (Yore Deah 115:15) who permitted the consumption of chalav akum when the non-kosher milk is less expensive than the kosher variety.

Thus, Rabbi Dovid Leibowitz zt”l, a great nephew of the Chofetz Chaim, temporarily introduced regular American milk into the then newly launched Yeshiva Chofetz Chaim on South Ninth Street in Brooklyn. The Pri Chodosh himself consumed such milk when he was living in Amsterdam and explained that the Mishnah requiring a Jew to supervise the milking was only when their existed an incentive to adulterate the milk.

The Chazon Ish, as well in his work on Yore Deah (See Chazon Ish 41:4) did provide a theoretical rationale that seems to back up certain points made by Rabbi Feinstein. The Chazon Ish, however, never implemented these leniencies into actual practice.

Generally speaking, however, the custom of Torah observant Jewry at the time was to follow the view of the Chsam Sofer (responsa YD #107) who rejected the view of the Pri Chodosh. Indeed, the Chsam Sofer wrote that anyone who observes this leniency deserves the application of the verse “uporeitz geder yishachenu nachash (see Koheles 10:8)” violating this important rabbinic law deserves to be punished by being bitten by a snake (See tractate Avodah Zarah 27a).

It is interesting to note, however, that, apparently in response to the new reality, the OU’s policy, as told to this author, is now to rely upon the Pri Chodosh.

The author can be reached at [email protected]