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In Melbourne Shabbat begins Fri 10 Apr 2020 05:41 PM and ends Sat 4 Apr 2020 07:50 PM

Courts determine kashrut requirements

י' תמוז ה' אלפים תשס"ט

Among the most recent articles to hit the media regarding Kosher comes the report from Israel that the Chief Rabbinate of Israel cancelled the Kosher certification of a bakery chain that is owned and operated by a so-called ‘Messianic Jew’ (see www.ynetnews.com/articles/0,7340,L-3739148,00.html).

The owner was originally provided with a hechsher which was later revoked with reinstatement possible only with full time supervision. As her competition did not require this, she petitioned the Israeli Supreme Court who ruled that the Chief Rabbinate were required to issue the hechsher with ‘standard’ conditions.

As the role of these articles is apolitical, I will refrain from commenting on the anti-religious nature of the secular Israeli Supreme Court that believes that it has the right to interfere in the religious requirements of Jews (only).

However the case does raise broader issues. To what extent are there standard rules for supervision and when can a Kosher authority rescind or suspend certification? And can a company make its own determination of its Kosher status?

Speaking from the Kosher Australia experience and discussions with a number of the main Kosher authorities in the US, the final arbiter of what is acceptable is the Kosher authority. Clause 10 of our standard contract states that a violation is solely determined by Kosher Australia, (despite the attempts of a few companies to reword this so that they can make the decision re Kosher status).

While there are broad standards for what is required – meat, fish and wine production mandate full time supervision and in some cases, handling, by mashgichim –  there are ‘facts on the ground’ that require consideration when determining the level of supervision and requirements.

For example, operating a fleishig restaurant would ideally have a full time mashgiach appointed by the Kosher authority rather than a mashgiach/worker employed by the owner. Inevitably, the worker will have some bias towards making his or her employer happy and reporting a kashrut problem to the Rabbi would hardly endear them to the boss. However, the economics often make the ideal impractical. The way we work around this is to couple an ‘inhouse’ mashgiach/worker with unscheduled checks by a Kosher Australia mashgiach or Rabbi. The unpredictability of the visits means that the owner does not know when the check takes place and will not commit a violation because he could be caught. The concept is referred to a ‘mirtat’ in halacha.

As discussed last week, supervision requirements are also based on the assessment of the facility where production takes place – if overtly non-Kosher products are made on location or compatible non-Kosher ingredients are used or if the company has poor production control systems, then greater supervision is needed.

Similarly, even if production is simple but the owner is not trustworthy (if he is a goniff or hates Jews) then supervision – if granted at all – would be very tightly regulated.

In the case of the bakeries in Ashdod and Gan Yavneh, the non-disclosure of the ‘religious beliefs’ of the owners would seriously affect their credibility.

(As noted by some readers of Ynet, even with an enforced hechsher, no customer is forced to buy from this bakery and undoubtedly most religious Jews would vote with their feet.)

As far as suspending supervision, this too is at the Kosher authority’s discretion. Contrary to popular belief, this is the final resort when a company proves so recalcitrant that there is no further remedy.

What about a company determining its own Kosher status? We frequently see this in industry as companies issue ‘Kosher statements’ that are based on their own assessment of kashrut (‘no meat, dairy or fish’ is the usual, though one stated ‘no alcohol’ which led me to respond ‘same footy comp, different team!’). We never fail to advise all parties that a Kosher certificate must be issued by independent Kosher authorities and not by companies themselves.

One major Western European retailer called me a while back to discuss Kosher requirements. When I offered to assist, I was told ‘we will tell you what’s kosher so your help is not wanted’. Our legal advice is that misrepresenting a product as being Kosher may be actionable under the Australian Trade Practices Act. If you see a product misrepresented as Kosher, please contact Kosher Australia.

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