The Torah not only prohibits consuming and deriving benefit from chametz during Pesach, it also prohibits its ownership. Once Pesach ends any chametz that had been owned, even if the result of deliberate wrongdoing, becomes, according to Torah law, once again permitted. The rabbinic authorities of the Talmud, however, introduced a penalty: chametz that was owned by a Jew during Pesach remains prohibited even after Pesach. Chametz that was owned during Pesach is referred to as chametz she’avar alav haPesach.
This prohibition applies whether or not ownership on Passover was intentional or unintentional. Although some poskim rule that the prohibition on the chametz applies only to the person who actually owned it, it is generally accepted that the prohibition applies to everyone else as well, including those who purchase chametz from a (non-observant) store owner who violated the prohibition of ownership during Pesach.
Several years ago, an Orthodox Jew who was fond of a particular brand of bourbon bought and stored many, many cases of it in his basement; the total worth approached $250,000. He later discovered that the owner and distributor of that brand is Jewish and had never engaged in a sale of his product during Pesach. Since deriving benefit from chametz she’avar alav haPesach is also prohibited, reselling his inventory did not appear to be an option (resolution of the problem came from a position that stated that bourbon, which is 51 percent corn, is not strictly speaking chametz; along with other technical considerations the man was permitted to resell the product).
Most of us don’t face such high-scale problems. Nevertheless, it is worthwhile for all of us, when shopping after Pesach, to make well-informed decisions.
Many va’adim, or local rabbinical councils, provide a list to their constituents of local establishments that are recommended and those that are best avoided. Here are some of the considerations they make:
When a store is Jewish-owned, and the owner never engaged in a sale, at what point can we reasonably assume that the chametz now on the shelves appeared after Pesach and was never in the hands of the Jewish store-owner? The answer, in part, is that it depends on the product and its shelf-life. Bread has a shorter shelf-life than granola and will be restocked more frequently. By determining how often the fresh bread is restocked — simply speaking to a stock clerk may be a good start — we can determine whether the bread, or the granola for that matter, was restocked after Pesach.
Making an item-per-item evaluation at a supermarket, however, is not particularly practical. At one point, then, can we assume that any chametz on a store’s shelves is from after Pesach?
Rav Yaakov Luban, senior rabbinic coordinator at the OU and distinguished rav of Ohr Torah of Edison, NJ since 1983, discussed this question with Rav Belsky zt”l many times. Although the prohibition against chametz she’avar alav haPesach is rabbinic, and there is generally a principle that, in case of a doubt, we may be lenient, it is not simple to apply that principle in a case where we know for sure that at one time all of the chametz in a given establishment was prohibited. “We know with certainty,” Rabbi Luban once wrote (Jewish Action, Spring, 2009), “that at some point in time, most of the chametz in the store will be chametz she’avar alav haPesach. Because of our lack of information, we can’t establish precisely (until) when that is. It is unreasonable to allow the purchase of chametz at all times when we know that, at some instance, the chametz is prohibited.” In other words, until we are confident that the majority of the products in the store are not chametz she’avar alav haPesach, we must avoid purchasing chametz items from such a store.
A further consideration: supermarkets do not always receive their products directly from manufacturers. For many items, supermarkets depend on food distributors. A grocery distributor plays the role of supply chain guarantor, providing stability and predictability in supply. A key factor in providing predictability involves short- to medium-term storage of those goods. According to the Food Marketing Institute (FMI), Making an item-per-item evaluation at a supermarket… is not particularly practical. At one point, then, can we assume that any chametz on a store’s shelves is from after Pesach? 34 www.oupassover.org the average amount of time that a grocery distributor holds product is 37.3 days.
One of the major grocery distributors in the United States is a Jewish-owned company that continues buying and selling inventory during Pesach.
Based on these considerations, many rabbanim therefore suggest waiting until after Lag B’Omer before purchasing chametz from supermarkets that are either Jewish-owned or rely on Jewish distributors.
One of the responsibilities of a local va’ad is to supervise, as well as act as power-of-attorney, for the sale of chametz of local Jewish establishments before Pesach. Many rabbanim craft creative and reliable arrangements. What if a supermarket or distributor engaged in a sale, but nevertheless violated the terms of the sale by continuing to replace inventory and sell existing inventory during Pesach?
One of the main controversies among 20th-century poskim relates to such cases. Many poskim fundamentally oppose the sale of Jewish-owned businesses that sell chametz on Pesach. The seller is clearly not sincere about the sale. For this reason, Rabbi Joseph B. Soloveitchik (1903–1993) and others considered sales involving supermarkets that sell chametz to customers on Pesach to have no validity and the chametz that had ostensibly been the basis of the original sale remains chametz she’avar alav haPesach. Nonetheless, Rav Moshe Feinstein (Iggerot Moshe, OC 1:149, 2:91 and 4:95) defended this transaction. He justified it on various grounds, one of which is that halachah does not take into consideration private thoughts (“devarim shebelev”) that are not verifiable (in this case the “thought” that is not verifiable, and that would have otherwise undermined the authenticity of the sale, is that the Jewish owner never had intention to sell). Furthermore, it is conceivable that the store owner prefers to transfer ownership of his chametz to a non-Jew so his religious customers can shop freely in his establishment after Pesach, even though he intends to continue selling chametz merchandise during Pesach. The OU follows the more stringent position of Rav Soloveitchik.
Publicly traded companies are generally considered permissible. Amazon is a publicly traded company. There are, however, three arrangements that Amazon provides:
1. Amazon owns and ships the product. “Sold by Amazon, Shipped from Amazon” indicates they provide both these services.
2. An independent supplier owns and ships the product. “Sold by Ploni, Shipped by Ploni” indicates that the owner only uses the Amazon as a platform for sale.
3. An independent supplier owns the product but Amazon is the shipper (“Sold by Ploni, Shipped by Amazon”).
Finally, chametz she’avar alav haPesach refers to any chametz that contained at least a kezayit (0.91 ounces) of chametz in a container. This applies to obvious chametz, such as pretzels, cereal, and cookies as well as licorice, in which the flour represents a significant portion of the product. Corn Flakes and Rice Krispies contain malt. Although in a given package of cereal there is less than one kezayit of malt, since the malt is more than one-sixtieth of the volume of the product, some poskim suggest that the product is considered chametz and is a candidate for chametz she’avar alav haPesach (see Biur Halacha 447:end). Whiskeys based on chametz, as well as beer, are subject to the prohibition. Kitniyot is not subject to the prohibition. Vinegar, in the United States, is made from kitniyot. Many rabbanim therefore suggest waiting until after Lag B’Omer before purchasing chametz from supermarkets that are either Jewish-owned or rely on Jewish distributors.
For more, read Chametz When to Peddle & When to Purge