The world of kosher certified food has and continues to experience tremendous expansion. Many food products that were never before kosher certified are now appearing with kosher symbols. While such proliferation is generally a good thing for the kosher consumer, an unfortunate side effect of this proliferation has been an increase in the number of products that are misrepresented to the public as being kosher certified.
Kashrus agencies communicate their certification through the use of a symbol. These symbols are easily replicable, and therefore often fall prey to misrepresentation. Although most agencies have registered their symbols as trademarks, that protection doesn’t eliminate unauthorized use of the symbol.
There are tools to minimize misrepresentation of kosher symbols. Unauthorized usage of the symbol can subject the user to a gamut of penalties under U.S. and International law. Having the option to use these penalties, coupled with an aggressive enforcement of trademark infringement, has created heightened a mirsas level among food manufacturers and retailers.
This article will address several facets of unauthorized kashrus representations.
- How do unauthorized representations occur?
- What should prompt the consumer to suspect misrepresentation?
- How to properly report a suspected misrepresentation.
- What can a kashrus agency do once a misrepresentation has been reported?
How do unauthorized representations occur?
The causes for misrepresentations of product as kosher certified vary. Here are some actual scenarios that have given rise to misrepresentation of products
Misconception: A jelly manufacturer in Turkey, supervised by the local Turkish Rabbinate, begins to export jelly to the United States. Erroneously assuming that a specific agency’s trademarked kosher symbol is a generic symbol used in the United States to represent product as kosher, the company uses the agency’s symbol without authorization.
Printing Error: A major New York supermarket chain introduces a new line of canned meat and pasta. The supermarket graphics department takes an existing label of a kosher certified canned peas and carrots and modifies it in order to create a new label for the canned meat and pasta. The graphic designer accidentally copies the kosher symbol to the label of the uncertified product.
Unregistered Products: A kosher certified manufacturer produces a new product using all kosher approved ingredients on kosher approved equipment but neglects to have the new product registered as certified with their kosher supervising agency.
Accidental Kashrus Violation: A kosher certified manufacturer, in violation of their established kosher program, uses a non-kosher shortening in a product that is approved for kosher production. The Mashgiach spots the non-kosher ingredient after the production has finished and the product has been shipped to supermarkets around the country.
Intentional Fraud: A beverage manufacturer applies for kosher certification. During the initial inspection of the plant, the Mashgiach learns that the beverages are pasteurized on the same equipment used to pasteurize non-kosher grape drinks. The manufacturer is told that his products cannot be kosher certified. Determined to increase sales, company executives decide to use the kosher symbol without authorization.
Another case of intentional fraud is described by the Chochmas Adam, Rav Avraham Danzig Z’TL. (Chochmas Adam Klal 70) The Chochmas Adam purchased cheese after having been shown by the shopkeeper a K’sav hechsher from HaGaon Rav Rafael, the Av Beis Din of the Kehilla Hakedosha of Hamburg. After an intensive investigation, the Chochmas Adam discovered that a copy of the original chasima had been taken and placed on other gevina which was sold to him.
What should prompt the consumer to suspect misrepresentation?
There are various “red flags” which can prompt a consumer to inquire of a Kashrus agency regarding the authenticity of a kosher symbol on a product. Some examples include the following:
The lack of a “D” or “dairy” statements next to the Kosher symbol used on products whose ingredient panel lists dairy ingredients.
Non kosher ingredients listed on the ingredient panel.
The appearance of a new product bearing a kosher symbol from an unknown company or kashrus agency:
A change in kosher related labeling issues such as old product which was not labeled as kosher and similar new product which is.
Information that sounds too good to be true. Moderately priced products which contain expensive kosher sensitive ingredients are suspect.
The consumer is well advised to question the kosher symbol appearing on a Kosher Salami being sold in the 99 cents store which indicates the country of origin as being Syria and includes whey and lard in the ingredient panel!
How to report a suspected misrepresentation:
Consumers querying a kashrus agency regarding a particular product should have the following information:
- The product name (as it appears on the product label).
- The brand name (as it appears on the product label).
- The manufacturer, distributor, or importers name (as it appears on the product label).
- The date code or production code information. (This information is usually ink jetted, printed or embossed somewhere on the product. It is not intrinsic to the product label but is rather added at the time of production.)
- Where and when the product was purchased.
This information is necessary as it enables the kashrus agency to properly investigate the kashrus status of the product. The kashrus agency may request a copy of the product label and receipt in order to confirm information presented and/or gather additional insights. Additionally, the product label may be needed in order to initiate legal proceedings.
What can the kashrus agency do upon discovering unauthorized use of its symbol?
Kashrus agencies will research the information presented to them. There are a number of options available. A product withdrawal, coupled with clear notice to consumers of the mislabeling, is the most effective way of dealing with mislabeled product. In many instances when the kashrus agency informs the product owner (most often the distributor listed on the label) of need to withdraw the product, the owner of the product does initiate a prompt withdrawal the product from the marketplace.
If the company refuses to cooperate with the withdrawal request, or professes cooperation yet in fact does not cooperate, there are several methods by which to obtain such cooperation. A letter might be sent to retailers informing them of the unauthorized presence of a trademarked certification symbol on the particular product. A letter of this type, sent to the corporate office of a retail store, would require that the store cease further sale of the product identified in the letter or face the possibility of being charged with infringing upon the kashrus agency’s mark. Additionally, several states, most notably New Jersey and New York, have enacted “kosher laws” which, among other things, address products which bear unauthorized kashrus symbols. These agencies are empowered to levy fines and/or order product withdrawals. Other states that do not have specific “kosher laws” may be enlisted to assist via a complaint to the Department of Consumer Affairs. Lastly, should it be necessary, a kashrus agency may enlist the aid of the Federal Courts by requesting that a Federal Judge issue a Temporary Restraining Order (TRO). A TRO is an order of brief duration that is issued to protect the plaintiff’s rights from immediate and irreparable injury by preventing an act until a hearing for a preliminary injunction can be held. Essentially, the kashrus agency requests that a Federal Judge issue an order halting further use of a trademark symbol (such as sale of product bearing the symbol) until such time as the issue may be resolved in the courts.
The OU has aggressively pursued unauthorized use of its kosher symbol. The OU has a Trademark Compliance department that works closely with legal counsel. It is important to note that every Kosher certifying agency has had misuse of their symbol. Nonetheless, the consumer can still comfortably rely upon the authenticity of a symbol (unless something is glaringly questionable) as the misuse represents an almost infinitesimal small percentage of the products available.
Proper kashrus requires that manufacturers or label companies (companies that own the label name but have other companies manufacture the product) completely respect the dictates of the kosher certification when representing product as being kosher. In instances when no kosher program exists, the manufacturer or label company must realize that the marketplace has zero tolerance for any or all unauthorized kosher representation. Consumers can greatly assist in this matter by being proactive and carefully examining labels.
This article has been written by Rabbi Baruch Cywiak, a rabbinic coordinator at the Orthodox Union specializing in trademark compliance. Portions of this article were obtained from an article appearing in Jewish Action, the magazine of the Orthodox Union.