Kashrus issues

With the several references in the parsha to wine and grapes, I thought an article dealing with some practical grape skin problems might be in order.

Observing a Colorful Lifestyle

By Rabbi Yirmiyohu Kaganoff

          Question #1: Are there any non-kosher food colorings?

            Question #2: Why would a hechsher insist on a recall of a product?

           Question #3:How can a non-kosher ingredient be noticeable, and yet the finished product is kosher?

At one point in my life, when I worked as a kashrus supervisor, I made a surprise inspection of a company that produced juice drinks – let’s call it Generic Juices, Incorporated. I was surprised to discover that the plant was not following the instructions it had received from its hechsher and was bottling beverages containing enocianina, a coloring derived from grape skins. This product was not on the list of approved ingredients, and for good reason, as I will explain shortly. The kashrus concerns involved now created a serious problem for the hechsher, the company, and most of all, the unsuspecting consumer. Before discussing what happened, I must present the halachic issues involved.

THE FOOD COLORING INDUSTRY

           Whether we like it or not, many of our foods are colored with a host of coloring agents. Some are derived from food items, such as beets, berries, sugar (caramel coloring), turmeric and annatto, whereas others are derived from inedible materials whose sources most consumers would prefer to ignore. Although processing colorants can compromise the kashrus of the finished product, few food colors are themselves obtained from non-kosher materials. However, there are two common food pigments that originate from non-kosher substances: One is carmine red, also called cochineal, which is a very common color used to color fruits, yogurts, juice drinks, maraschino cherries and more. Cochineal is extracted from an insect that is native to South America. A closely related dye color, kermes, is a shade of scarlet derived from scale insects, which may have been the source of the tolaas shani dye used in the Mishkan and Beis Hamikdash. We should note that the Hebrew word tola’as, which is usually translated worm, may include insects and other small invertebrates. Thus, it may indeed be that the tola’as of the verse is a scale insect that produces a red dye.

The verse (Yeshayah 1:18), “if your sins will be like shanim, they will become as white as snow; though they be red as the tola, they will become white like wool,” clearly indicates that tola’as shani is a red color. On this basis, some authorities identify tola’as shani as kermes (see Radak to Divrei HaYamim II 2:6). One can rally support for this approach from the verse in Divrei HaYamim (II 3:14), which describes the paroches curtain as woven from techeiles, argaman, karmil, and butz, which is linen; whereas the Torah describes the paroches as made of techeiles, argaman, tola’as shani, and sheish, which is linen (Shemos 26:31). The words karmil and kermes certainly seem to be cognate. Similarly, the Rambam explains tola’as shani to mean “wool dyed with an insect” (Hilchos Klei HaMikdash 8:13). Thus, karmil appears to be another word for tola’as shani. The ancients derived a red dye from the dried bodies of the species called Kermes ilices, which served as one of the most important pigments for thousands of years. As a matter of fact, the English word crimson derives from this ancient dye.

(Without going into the subject in detail, it is appropriate to mention that some responsible rabbinic authorities rule that cochineal is kosher, since it comes from an inedible part of the insect. However, I am unaware of any major kashrus organization today that treats cochineal as kosher.)

GRAPE SKIN EXTRACT

               The other common non-kosher source is called enocianina, colloquially often called simply eno, a red or purple natural food color derived from grape skin extract, and commonly used in beverages, fruit fillings and confections. After the juice has been squeezed out of the grapes, the remaining pulp is processed into a commercial coloring agent. Although one could produce kosher eno from kosher-processed grape skins, grape skin color available today is produced in non-kosher facilities. After the grapes have been squeezed and the juice has been separated from the pulp, at which time they become subject to the halachos of stam yeinam, which means that they have probably become non-kosher. Thus, we assume that eno is not kosher.

GENERIC JUICE DRINKS

                Unfortunately, when I discovered the problem, Generic Juices had already produced and shipped tons of product using either carmine or eno – and all of it bearing the kosher certification symbol on the label! Is the kashrus agency halachically required to insist on a recall of the product from the supermarket shelves?

RECALL**************

              Companies hate having their products recalled, for technical reasons, because of the major expense involved, and because it is a public relations nightmare. On the other hand, if the product now in the marketplace is prohibited according to halacha, we must be concerned that a consumer may use the product, because he assumes that it is kosher! Although a recall is never a foolproof method, it is the best we can do to avoid people unwittingly consuming a non-kosher product.

The policy of this particular hechsher was not to require a recall, unless the product could not be used even after the fact, bedei’evid. It was now the responsibility of the hechsher’s poskim to decide whether the product is prohibited after the fact, and, therefore, to require a recall, or whether bedei’evid the product is permitted. Although we would insist that all labels bearing the hechsher on this product be destroyed, or at least the kashrus symbol be obliterated, the hechsher would not require the product that had already been shipped to be recalled. (There would also need to be further clarification as to whether the hechsher would allow distribution of the product that had been labeled but was still in the company’s control.)

Why should the finished product be kosher, if the colorant was not?

The basis for this question follows:

Coloring agents are used in very minute amounts. Indeed, when the Spaniards discovered carmine red, they sold the concentrated powdered pigment at a higher price per ounce than gold! Thus, the amount of coloring used to color a juice drink, maraschino cherry or strawberry-flavored yogurt is significantly less than the amount that we usually say is bateil (nullified) in a finished product. Although one may never add treif product to a food and rely on its becoming bateil, if a non-kosher product was added inadvertently in minute quantities, the finished product is usually permitted.

The primary criterion to determine whether the treif ingredient is bateil is:

            Can the non-kosher product be tasted, either because of its quantity or because it is a flavoring agent?

            In our instance, this test is passed with flying colors! None of these colors can be tasted in the finished product.
           However, there is, or might be, another criterion:
           Is the treif product noticeable?
         If one can see a treif ingredient floating inside a food, one may not consume the food without first removing the treif item.

COLORS ARE NOTICEABLE

            The boldness of a color announces its existence. Can we say that a color is bateil when we see clear evidence of its existence?

Several great halachic authorities discuss this question, reaching different conclusions. Indeed, some great authorities prohibit consumption of a product that was colored with a non-kosher colorant, precisely because one can notice the existence of the non-kosher ingredient (Pri Megadim, Mishbetzos Zahav 100:1; Minchas Kohen, Sefer Hataaroves 3:3, quoted by Darkei Teshuvah 102:30). According to this approach, all of the juice drinks mentioned must be recalled, since the color of the drink is noticeable and comes from a non-kosher ingredient.

On the other hand, the Vilna Gaon argues that determining whether the food is kosher depends on whether one can taste the treif ingredient (Yoreh Deah 102:6). In our instance, although the color is noticeable, no one tastes the colorant, and, therefore, the finished product is permitted, assuming that the admixture was made in error. An earlier authority, the Minchas Yaakov (74:5), also espouses this position.

According to this approach, we have answered our opening Quiz Question #3, which was: How can a non-kosher ingredient be noticeable, and yet the finished product is kosher?

A COMPROMISE POSITION – IN WHOLE CLOTH

               Some authorities compromise between these two positions, comparing our question to a Gemara that discusses whether someone who stole dye and cloth and now returns the dyed fabric fulfills his mitzvah of returning what he stole. The Gemara rules that this depends on whether the dye is considered to still exist after it has been used, because its color is still noticeable (Bava Kamma 101a). Is the color on the cloth treated as if the dye itself still exists, or did the dye become bateil and no longer exists? If the dye no longer exists, then it was not returned, whereas if the dye still exists, then it was returned.

That issue remains unsettled, and, therefore, halachically is considered an unsolved doubt, a safek (Shu’t HaRan #70). Based on this discussion, several prominent authorities contend that a colorant that may involve a Torah prohibition is prohibited as a safek d’oraysa, whereas one that involves only a rabbinic prohibition is permitted, since the ruling is that we are lenient in the case of an irresolvable issue germane to a rabbinic prohibition (Pri Chodosh, Yoreh Deah 102:5; Chasam Sofer, quoted by Darkei Teshuvah 102:30).

CONCLUSION

              By this time, I presume most readers want to know what the hechsher did. The deciding posek ruled in accordance with the last position mentioned, and contended that the carmine coloring might be prohibited min haTorah, and therefore the company must recall the beverages containing carmine. Since eno, the grape skin extract, involves only a rabbinic prohibition, he did not require the company to recall the items containing this ingredient, contending that, according to most authorities, the eno is considered nullified in the final mix.

We should always pray that the food we eat fulfills all the halachos that the Torah commands with no controversial shaylos.