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Chalav Yisroel
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By: Rabbi Gordimer
Chalav Stam
Cholov Yisroel is a topic of great halachic dispute. Some Poskim rule that milk in many countries no longer needs special supervision, while other Poskim disagree and require supervision. What are the arguments for each side of this machlokes?
In a famous series of teshuvos (Igros Moshe YD 1:47-49), Rav Moshe Feinstein argues that all milk in the US has the halachic status of cholov Yisroel, as the government inspects all dairy factories to assure that there is no milk from non-kosher species, and the dairy companies therefore have fear (“mirsas” ) of being caught and penalized. Thus, we are certain that their milk is 100% from cows and is fully free of adulteration with milk from non-kosher species. This certainty is considered to be virtual halachic witnessing – ”anan sahadei” – and it thereby fulfills the requirements of cholov Yisroel, being halachically equivalent to the Jew actually observing the milk being processed. Reb Moshe was far from the first Posek to rule leniently on such milk (see Chazon Ish YD 41:4), but his lengthy teshuvos are the most elaborate on the topic. Although Reb Moshe states that a ba’al nefesh – one who can take stringencies upon himself – should consume only cholov Yisroel in the traditional sense, he clearly rules that all domestic milk meets cholov Yisroel requirements.
In light of Reb Moshe’s p’sak, American Jewry began to classify traditionally-supervised milk as “cholov Yisroel”, regular domestic milk without mashgichim present as “cholov stam” – “regular milk”, and milk from sources which do not have sufficient government regulations (such as many third-world countries) as “cholov akum” – the type of milk banned in the Gemara.
Reb Moshe (ibid. 1:49) addresses one seeming gap in his argument, which is that although there is government supervision and regulation at processing dairies (which bottle milk, make ice cream, etc.), there are often no such regulations at the actual farms which provide milk to processing dairies. Since the halacha is that milk made without supervision is rendered as assur (prohibited) and cannot later obtain permissibility (Remo YD 115:1), Reb Moshe was challenged as to how milk from unregulated farms could later be permitted when used at dairy processing plants which are subject to government inspection. Reb Moshe ruled that milk does not become prohibited as cholov akum until it reaches the Jewish consumer (“he’gia l’yad Yisroel” ); prior to that, when in non-Jewish hands, the milk is not encumbered by any issur. Thus, he maintained, milk at (non-Jewish) farms is not assur while it is yet there, and when it arrives at the point of processing, from whence it is sold to Jewish consumers, it is already under government supervision.
Those who disagree with Reb Moshe’s position argue on several grounds. Firstly, the principle of anan sahadei may very well not mean that Jews are halachically considered to be viewing the event; rather, anan sahadei likely means that the event is treated as fact, with a full degree of certainty as if it were performed with witnesses, although none are considered to be present in any sense. Thus, the rabbinic requirement for physical presence or observation of milking would not be fulfilled. Secondly, the concept of “he’gia l’Yad Yisroel” is a major chiddush (novel idea), not necessarily well-established in general. Furthermore, there are those who question whether government inspection creates the same level of mirsas as on-site mashgichim. (See Chelkas Yaakov 2:37-38; Chelkas Binyomin YD 115 s.k. 16 and tziyunim ibid. 51-54.)
On the other hand, the Rambam and Shulchan Aruch rule that butter made from unsupervised milk farmed by gentiles is permissible (Hil. Ma’achalos Asuros 3:16, YD 115:3), and the Remo (ibid. 115:2) rules likewise regarding cheese that has Jewish supervision for the cheese-making process but not for the milking. The reason for these exceptions is that we are confident that a gentile does not make cheese or butter from non-kosher milk (e.g. pig or camel milk), as such milk does not properly form into cheese or butter. We see from these halachic positions (disputed by some Geonim, Rishonim and Poskim) that reliance on systems of verification other than literal on-site hashgacha suffices. This rationale could very well be a factor for leniency with cholov stam, where government controls may serve as verification via mirsas, even without relying on Reb Moshe’s interpretation of anan sahadei. Furthermore, many – if not most – milk farmers produce milk for sale to all end-users, having in mind that cheese and butter companies are likely to use their milk, and the basis for permitting milk farmed for cheese and butter use could thus be a factor, obviating any issue posed by a lack of government control at milk farms.
Nevertheless, as mentioned earlier, not all agree that government supervision creates a sufficient level of mirsas, and much milk is farmed for direct consumption, not for cheese or butter use. So, too, unsupervised gentile milk farmed for cheese or butter use is not permitted until it is actually made into cheese or butter. (Remo YD 115:2)
It is noteworthy that the Aruch Ha-Shulchan YD 115:5-6) unequivocally rejected leniencies of his day regarding unsupervised milk, stating that (short of the cheese and butter rule) gentile milk is only permitted within the parameters postulated by Chazal, requiring on-site Jewish presence.
