Halachic Musings
By Rabbi Yair Hoffman
The controversy has been raging for close to two decades now, and the issue has surfaced at various venues. An Exxon station on Route 9 at County Line Road in Lakewood and at a nearby 7—Eleven. A Sunoco station past exit 5 of the Palisades Interstate Parkway on the way to the George Washington Bridge. A Coffee Bean at the corner of Beverly and Alta Vista in Los Angeles. And now at ten Starbucks stores.
These shops and gas stations are often visited by coffee lovers from across the chareidi spectrum, and the non-Jewish owners are catering to them by making available milk that is chalav Yisrael to add to their coffee. Generally speaking, these gentile establishments are providing their chalav Yisrael consumers with both the low-fat variety (usually with a blue cap and blue label on a half-gallon plastic container) as well as the regular variety (usually with a red cap and red label).
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The Problem
Last year, a number of chassidishe poskim published a warning that an open bottle of chalav Yisrael (that is, milk that was chalav Yisrael when first bottled) in a non-Jewish establishment is no longer chalav Yisrael. Yet numerous Jews who are generally careful to drink only chalav Yisrael continue to consume such milk. They assume that it is quite remote that any gentile worker or owner might switch out the chalav Yisrael milk with regular milk just to provide religious Jewish customers with “kosher” milk for their coffee. And now, with the announcement that ten Starbucks are now exclusively stocking Pride of the Farm brand chalav Yisrael milk, the controversy is once again raging. This is not to say, by the way, that Starbucks is certified kosher–it is not. It is just that if someone wants to drink Starbucks coffee, chalav Yisrael is now available for them.
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The Rulings
This author posed the question to a number of well-respected chassidishe poskim who stated unequivocally that the milk is not kosher. These poskim included Dayan Hershel Ausch, the Av Bais Din of Karlsburg (headed by Dayan Yechezkel Roth, shlita, the posek of the Satmar Rebbe Rav Yoel Teitelbaum, zt’l); Rav Yisroel Dovid Harpenes, a noted posek in Williamsburg; and poskim from Skver. Their rationale was that chalav Yisrael requires a chosem–a seal–and that an umdena (roughly translated as a compelling assumption that can be the basis of halachic rulings) is not effective when a chosem is required. Furthermore, they say there is not, in fact, an umdena here because the gentile will always want to provide milk for his customers and will thus pour regular milk into these containers behind closed doors if necessary.
However, Rav Yisroel Belsky, zt’l, when asked about the Route 9 Exxon gas station in Lakewood, ruled that it was unquestionably permitted. He explained that everyone knows that adding milk to an open bottle [instead of starting a fresh one after the first one is empty] causes spoilage, and no one would do that. Some, however, questioned whether workers at a gas station would be aware of this point.
This author spoke to another highly regarded Litvish posek who expressed his opinion that the milk would still be considered chalav Yisrael whenever there is no “chashash chiluf,” suspicion of switching. He disagreed with the idea that an umdena is ineffective when a seal is required.
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The Sources
The operative halachos behind this raging controversy are found in Shulchan Aruch Y.D. chapter 108, which contains 13 subparagraphs, the first seven of which explain the following points.
¶1. Need for a seal. Meat, or a piece of fish from which the fins and scales have been removed, requires two seals (chosmos) when sent through a non-Jewish intermediary. However, milk, cheese, or other foods that involve only rabbinic prohibitions, require only one seal. This is the source in Shulchan Aruch that one seal is required to ensure that chalav Yisrael is not replaced with regular milk.
¶2. When the seal is no longer extant. The Rema tells us that if the seal is no longer extant, the food is forbidden only if (a) there is a concern that the non-Jew may have switched it, and (b) he derives benefit from having switched it. The poskim who forbid the milk would say that indeed there is a concern that the non-Jew switched it in order to provide for his customers, and that there is a benefit in the owner making money on the sale.
¶3. Two letters comprise two seals. The formation of two Hebrew letters is considered like two seals rather than one seal. In other words, we see that the idea of a seal is not a tamper-proof system of protection. A gentile who tries hard enough could feasibly forge two Hebrew letters. Yet the assumption is that he will not go through such extensive effort.
¶4. Seal on the bag not valid. According to the Rema, if the item was sent in a bag and the bag had a seal, it is not considered a valid seal. The seal apparently must be on the item, not just on the outer sack.
¶5. When the better items have a seal. In regard to a rabbinically prohibited item, if one recognizes that some of the products still retain their seal, and they are the higher-quality ones, then the other items are still considered kosher. We assume that the gentile would have switched out the higher-quality ones. We see from here strong evidence that an umdena is, in fact, utilized even when there is a requirement for a seal.
¶6. Evidence of slaughter. The physical signs that an animal was slaughtered is not sufficient to be treated as a chosem.
¶7. In a public place. The Shulchan Aruch explains that if the place in which the gentile was sent with the item is one through which the public passes, it is permitted, as the gentile will be concerned that he will be seen and, if he tampered with the food, would be viewed as a thief. However, the Shulchan Aruch notes that ideally, one should not send food with a gentile without using a seal.
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Public Scrutiny
Subparagraph 7 is in all probability the most germane to the raging controversy under discussion. Some wish to permit the milk based upon the fact that if the owner or an employee switches out the chalav Yisrael milk, that will be readily seen by passersby. Indeed the TaZ and the Pri Chadash both write that even if the passersby are only gentiles, the owner would be concerned that they would report him.
They also point out that, generally speaking, you can always look into these Starbucks stores because their walls are made of glass. The Palisades Sunoco station is also open 24/7, as well as the Exxon station on Route 9 in Lakewood.
Those that forbid the milk could argue that there is a huge distinction between our case and that of the Shulchan Aruch. The Shulchan Aruch’s wording is that the gentile would be afraid that he would be caught red-handed and called a thief and hence pounced upon or jailed. This is a far cry from switching milk containers, which might carry very few repercussions.
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The McDonald’s Precedent
Some rabbis have pointed out that the fear of being caught red-handed is a real one, particularly after the famous 2001 McDonald’s Corporation french-fry case. McDonald’s agreed to pay $10Â million for misleading consumers about their fries for ten years.
In 1990, after being pressured by the vegans, McDonald’s announced that its restaurants would no longer use beef fat in cooking french fries and that only pure vegetable oil would be used. But on May 1, 2001, a lawsuit was filed in Seattle on behalf of two Hindus who didn’t eat meat and one non-Hindu vegetarian. The french-fry category of the official McDonald’s ingredient list made no mention of beef tallow or beef extract. They only listed potatoes, partially hydrogenated soybean oil, and natural flavor.
McDonald’s tried doing damage control by issuing a statement at the time of the lawsuit that said, “The natural flavoring consists of a minuscule amount of beef extract.” But it was too late, and they ended up paying the $10Â million.
Some rabbis wanted to claim that the Starbucks Corporation and perhaps the owners of the Route 9 Exxon and the Exit 4 Sunoco are aware of the lawsuit against McDonald’s and would thus be very careful. Others claim that they could still switch the milk behind closed doors or behind the counter, and that most of the workers and managers are completely unaware of the lawsuit against McDonald’s, and thus the distinction between contemporary times and the times of the Shulchan Aruch is still valid.
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Employees Only?
There is also the opinion of the Issur v’Heter (22:7—8) that we are only discussing a servant or employee of the Jewish owner and not just any gentile. In the latter case, it would clearly be forbidden to rely on this assumption. Although the Shach and the Toras Chatas disagree with the Issur v’Heter, it could be that they would agree with him in regard to this case, where there is no Jewish neighborhood per se. (Indeed, the Toras Chatas specifically limits the leniency to a Jewish neighborhood.)
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The Starbucks Scenario
Inquiries at a Starbucks reveal some interesting facts. The Starbucks stores are corporate owned; they are not franchises. The ones that have Pride of the Farm chalav Yisroel carry no other milk. If a Starbucks runs out of any product, the employees are instructed to go to another Starbucks to get that product. They would not get that product from another locale, and there is no incentive whatsoever for them to do so. It would seem, however, that they may go to the closest Starbucks in such an event, and if that other Starbucks does not carry chalav Yisrael, there may perhaps be a concern. However, rarely if ever would a Starbucks actually run out of milk.
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Conclusions
It seems to this author that an umdena certainly would work to permit the milk even if there were no seal.
Let us also go back to Rabbi Belsky’s point that people do not pour milk from one container to another. It seems that this information is actually taught in state-mandated health courses that one employee or owner of every establishment that deals with food and refrigeration must attend.
It would seem also that if there is ample chalav Yisrael in the refrigerator, there would be an umdena that the milk has not been switched. The Rema says in ¶2 that it is only forbidden if there is a financial benefit and an incentive, and it is hard to imagine that a gentile employee would care enough to risk spilling and spoilage and the extra effort merely for the sale of a few cups of coffee.
True, ¶7 states that ideally one should not send milk without a chosem, but it is this author’s conclusion that the milk at exit 5 and at the Route 9 Exxon remains chalav Yisrael–it is just not l’chatchilah.
It also seems to this author that the Pride of the Farm chalav Yisrael milk in the ten Starbuckses would even be permitted l’chatchilah. There are so many other umdenas associated with the Starbucks operation that an open chalav Yisrael container in one of these ten stores would be considered full chalav Yisrael.
Of course, each person should consult his or her own rav, posek, or dayan and not rely on the conclusions found here.
It should also be noted that some of the Starbucks stores actually wash some of the pots with non-kosher solutions. This is also not ideal and often forbidden. The brew baskets of the plain coffees are generally not washed in this manner, however; and even if they are, it does not present a problem (see an extremely learned CRC document on Starbucks written in 2011 by Rabbi Sholem Fishbane and Rabbi Dovid Cohen). v
The author can be reached at Yairhoffman2@gmail.com.