I. Private Regulation

The kosher supervision industry is both trusted and distrusted, loved and hated, respected and feared. More than anything, it is misunderstood despite the great effort its leaders put into community education. Timothy Lytton, a law professor at Albany Law School, has performed a remarkable service by explaining the evolution and workings of the kosher supervision industry in his Kosher: Private Regulation in the Age of Industrial Food. In the process, he voices the major complaints and responses about the industry.

Lytton’s main argument in his compelling book is that the kosher supervision industry provides a successful example of private regulation. He analyzes why it works, focusing on the unique aspects that enable this success and may allow for its duplication elsewhere. In order to make this argument, he explains how the industry functions.

Decades ago, kosher supervision was a disaster. All estimates of kosher fraud were huge and supervision was heavily affected by organized crime. “The president of the Kosher Butchers Retail Association asserted publicly in 1910 that 65 percent of the butchers who advertised kosher meat actually sold treyf” (p. 27). Even if this was an exaggeration, an endemic problem clearly existed. Efforts to impose unified standards were squashed, often with violence. However, in the 1950s and 60s, under the direction of R. Alexander Rosenberg, the OU made huge inroads in supervising industrial food producers. The OU’s success, alongside a few other agencies, set aside the private supervisions that were, by all accounts, overflowing with corruption.

II. Interagency Relations

The relationship between the different supervision agencies plays an important role in the story. On the one hand, they compete for business, sometimes fiercely and acrimoniously. Some agencies have very cold relationships with each other. On the other hand, the nature of industrial food production requires interagency cooperation. In order to certify a retail product, a kosher supervisor must approve every ingredient, many of which are often certified by a different agency. Any industrial kosher supervisor must render an opinion on its competitors’ reliability or make the demand–unrealistic in the industrial context–that only ingredients it supervises be used. You don’t have to like a certifier; you just have to trust him.

Therefore, all agencies are in the same boat. They must rely on each other or forfeit their goal of certifying kosher food. The Talmud and codes do not give many details relevant to contemporary industrial food production, and the details provided are usually subject to debate. Therefore, in order to reach a level of comfort with each other, the main kosher agencies developed industry standards. The major agencies realized, after a particularly embarrassing kosher ingredient mistake by one agency that affected products certified by all of them, that they need to reach a consensus on many issues. Those who abide by these industry standards are generally accepted and those who do not are “not recommended.” This does not mean that food under those supervisions are not kosher. It only means that the supervisors fail to meet the industry standards that were developed based on debate and consensus, and in response to supervisory failures.

Those failures, some of which Lytton describe, are certainly interesting. No system of supervision is 100% successful and Jewish law does not require it to be. Sometimes failures of kosher supervision are sufficiently unlikely that supervisors need not take preventive action. However, standards of spot check frequency, limitation of unsupervised access to food and invoice tracking are important tools to avoid common forms of fraud.

III. Competing Concerns

Kosher supervision is big business but it is also a sacred mission. While the need to maintain sufficient standards to satisfy competitors offsets company pressure to loosen standards, a healthy fear of the Lord and a mandate to provide kosher food to a broad public adds important weights to balance the scale. Lytton explains: “One should be careful, however, not to romanticize the power of religious faith or overestimate its distinctiveness from other forms of moral commitment… Religious faith has been an effective check on fraud and corruption in kosher certification only when it serves as a complement to market incentives and only when it is embedded in a social context that fosters trustworthiness and imposes effective reputational sanctions” (p. 139).

In the past, kosher supervisors were largely at the mercy of producers and religious mission alone was insufficient. They now have other offsetting concerns that, combined with religion, create an environment for robust supervision. That religious passion alone is insufficient is actually important for Lytton’s argument. It enables him to generalize from kosher supervision to other moral commitments, such as vegetarianism and organic consumption.

IV. Not Recommended

The provocative title of this post is a question that people have asked on this blog over the years. It has no definite resolution and many will respond that there is nothing wrong with the agency’s supervision. Triangle-K is the leading supervisor that does not abide by industry standards and, indeed, refuses to release details of its specific standards, it claims, out of fear that other certifying agencies will poach clients. I will not discuss the specific accusations against Triangle-K and the agency’s responses, as detailed by Lytton (pp. 81-84). The bottom line is whether you trust more the major kosher agencies that establish and abide by the industry standards. If you do, you will not eat from agencies that fail to meet those standards due to either the possibility of unwarranted leniency or administrative failure.

Lytton’s book is a great read. It is the definitive guide to the development of modern kosher supervision and the only window, however limited, to the complex industry that is so important to observant Jews.

(See also the Chicago Rabbinical Council’s explanation why it does not recommend many kosher agencies: link.

Also note that I worked for two years publishing books at the OU.)