interesting article from koshernexus.org
KOSHER BECAUSE IT HAS NO HECHSHER!
Products that are kosher only without a heksher
Many years ago Garelick Farms decided to market its milk all-natural, which meant that it needed a natural source of Vitamin D – and it chose shark oil. This had at least two consequences: Hood Dairy began running an ad with the tagline “There’s something fishy about Garelick Farms milk”, and the KVH (this was long before I became involved) pulled its hashgachah.
Garelick Farms sued Hood, arguing that the fish was imperceptible, and won – the (non-Jewish) judge tasted the milk and agreed there was no fish taste. I therefore ruled that the milk was kosher because the KVH had pulled its hashgachah.
The judge’s taste test demonstrated that the shark oil was nullified (certainly the percentage was below 1/60 anyway), so the only remaining issue was deliberate nullification (bittul lekhatchilah), which makes a product prohibited to the person or person for whose benefit the nullification occurred.
R. Akiva Eiger (YD 99:5) states that a nullification done with no specific end-user in mind, but rather for “whomever will wish to buy”, is considered to be done for the benefit of all eventual purchasers. One understanding of this position is that anything consciously produced with observant Jews in mind has that issue, even if the observant Jews are a trivial percentage of the intended audience. However, by giving up its kosher certification, Garelick Farms demonstrated that it did not have any concern for observant Jews, and therefore the milk was kosher because it had lost its hekhsher.
Paradoxically, had the KVH accepted this argument and sought to restore the hekhsher, the milk would have become treif. My contrarian ambition was to develop a list of products that were kosher only when unhekhshered, as many industrial koshering procedures ultimately depend on some form of nullification. (Note however that this broad interpretation of the prohibition is not obvious either in R. Akiva Eiger or in his cited source, Responsa Rivash 498, and is not followed consistently in practice today; see for example Igrot Moshe YD 1:62-63.)
I thought this was a compelling but creative psak, and to make sure I really believed it, I went out and bought a quart of milk and drank a glass before paskening that anyone else could do so. But Dov Weinstein shows me that in the current issue of Tradition my teacher Rabbi J. David Bleich makes the same argument. Here is his quote.
“Paradoxically, according to R. Akiva Eger, a product that otherwise would be permitted may become forbidden by virtue of the fact that it is certified as kosher. Products produced for the mass market are not produced for the benefit of Jews. Accordingly, if some small quantity of a non-kosher ingredient is present, but nullified, the product is permissible. The same product, if produced for a Jew, according to the opinion of R. Akiva Eger, even for an unspecified, anonymous Jew, is prohibited. Kosher certification is sought by a producer precisely because he wishes to market his product to the Jewish consumer. Targeting the Jewish consumer as a potential customer creates a situation in which nullification is carried out expressly for the benefit of a Jew and hence, according to R. Akiva Eger, a Jew may not benefit from such nullification. Accordingly, stem-cell burgers might be produced that are indeed kosher but they would become prohibited if labeled as such!”
Barukh shekivanti ledaat mori!
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