Jacob Sullum is associate editor of Reason magazine.
When presented with packaged food, my 5-year-old niece will carefully examine the wrapper, box, or label, looking for the symbol that assures her it’s OK to eat: a U inside a circle, which certifies that the food has been prepared according to Jewish dietary laws, under the supervision of the Union of Orthodox Jewish Congregations of America. She will not accept a mere K, which represents the manufacturer’s unverified statement that the product is kosher.
You might think that if a preschooler is capable of making such distinctions, so is the average adult, observant Jew. But some people don’t want to take any chances. For decades regulators in 20 states have inspected businesses selling ostensibly kosher food to make sure they follow the laws of kashrut—which, among other things, forbid certain categories of food, require the separation of meat and milk, and specify procedures for slaughtering and preparing meat.
State kashrut supervision has recently come under attack in the courts. Last year the New Jersey Supreme Court overturned that state’s kashrut regulations as an unconstitutional establishment of religion. In Maryland, a hot-dog vendor has brought a similar challenge against a Baltimore ordinance, and the case is pending in federal court.
Both cases hinge on subtle and complicated analyses of what constitutes a secular legislative purpose, an advancement of religion, or an excessive entanglement with religion. But they also raise a question that the courts have not been asked to decide: Is there any area at all where consumers can be expected to look out for their own interests? State intervention in the kosher-food market illustrates a regulatory mindset that has become disturbingly common in the United States. This mindset insists that barbers must be licensed to protect consumers from bad haircuts; that every bottle of beer, wine, and liquor must alert drinkers that “consumption of alcoholic beverages impairs your ability to drive a car or operate machinery”; and that food companies must not be allowed to announce that their products contain ”no cholesterol,” lest consumers be misled into believing that a diet consisting exclusively of margarine and vegetable oil is healthy.
While the absurdity of these measures may be readily apparent, state kashrut supervision is less obviously unnecessary. After all, when a merchant or restaurateur represents that a produce or meal is kosher, he is making an assertion that may be crucially important to the buyer. Moreover, the assertion cannot be readily verified by examining the food itself. Chicken that has been slaughtered according to Jewish law is indistinguishable from ordinary chicken. A cake that has been baked with vegetable shortening looks the same as a cake that has been baked with lard. Yet kosher food (especially meat) often commands a higher price than non-kosher food. Like a jeweler who convinces customers that his fake diamonds are the real thing, a business that could get away with passing non-kosher food off as kosher would stand to make a tidy profit.
Indeed, defenders of state kashrut supervision have argued that it is simply a way of enforcing laws against consumer fraud. For example, Nathan Lewin, an attorney with the National Jewish Commission on Law and Public Affairs, told The Washington Post: “If the state doesn’t regulate, consumers will have no assurance that a food is really kosher . . . . Consumers may be at the mercy of unscrupulous vendors who will sell non-kosher food as kosher. Someone who cares so little about the laws of kashrut could sell a product that contains pork and say it’s kosher, and there will be no one around to stop that.”
Even if you know next to nothing about kosher food, you might wonder how observant Jews managed to get by for thousands of years without the assistance of agencies such as New Jersey’s Bureau of Kosher Enforcement. And if you’re familiar with the dining and shopping habits of Jews who keep kosher, you will recognize that Lewin, like the “unscrupulous vendors” he describes, is guilty of misrepresentation. He neglects to mention that the very conditions that invite fraud in the kosher-food industry have led to an elaborate private system of consumer protection.
Private Kashrut Supervision
As my niece could tell you, Jews rely upon certification by religious authorities to determine whether something is kosher. There are more than 100 kashrut supervision services worldwide, plus publications, such as Kashrus Magazine, devoted to covering developments that might concern a Jew who observes the dietary laws. In addition to organizations such as the Orthodox Union, individuals often serve as kashrut supervisors, or mashgichim. (These are often rabbis, but they need not be; anyone with the proper training can do the job.)
In Los Angeles, where I live, two local organizations and several independent mashgichim certify bakeries, butcher shops, and restaurants. Supervision generally involves a full-time employee trained in the laws of kashrut, supplemented by outside inspectors who make surprise visits on a regular basis. If you want to know whether a business has supervision, you can ask to see its certificate, which is usually on display.
Obviously, this system works only if consumers can safely assume that such certificates are genuine. As the New Jersey Supreme Court observed: “Just as the State may bar promotion of products as having been tested by a certain testing laboratory when they have not been so tested, and just as the State may bar promotion of products as having been endorsed by a certain consumer magazine when they have not been so endorsed, so may the State bar promotion of products as having been prepared under the supervision of a particular rabbi or group of rabbis when they have not been so prepared.” Protecting citizens from such fraud is a legitimate function of the state.
Even with a prohibition on fraud, the system of private supervision is not perfect. It relies, to a considerable degree, on trust. Consumers trust the mashgichim, and the mashgichim, to some extent, trust business owners. This trust is based largely on shared religious values. But both mashgichim and the businesses they supervise have to worry about maintaining their reputations in the face of competition, which is not true of state inspectors. An establishment that has been known to mislead its customers will not stay in business long, and a mashgiach who is known for corruption or carelessness can no longer practice his occupation.
At first glance, the New Jersey and Maryland cases seem to suggest a need for state supervision. In the New Jersey case, a rabbi working for the state cited Ran-Dav’s County Kosher in Roseland for several violations of kashrut rules, including failure to devein calves’ tongues and storage of non-kosher chicken in the same freezer with kosher chicken. But County Kosher is also under the private supervision of another Orthodox rabbi, who insists that the state inspector is mistaken. Rather than a case of fraud that would have gone undetected without state regulation, this seems to be a case of honest disagreement between two mashgichim. In the final analysis, the consumer must decide whether County Kosher’s supervisor can be trusted. This is the kind of decision that observant Jews must make all the time, often after consulting with their own rabbis (who may in turn ask an organization such as the Orthodox Union).
In the Maryland case, a rabbi from Baltimore’s Bureau of Kosher Food and Meat Control cited hot-dog vendor George Barghout for selling kosher frankfurters after cooking them on the same rotisserie as non-kosher frankfurters. Yet if this was his practice Barghout could not possibly have obtained a certificate of kashrut from a reputable mashgiach. Passers-by who were serious about keeping kosher would not have taken the vendor’s word that the hot dogs were kosher; they would have insisted upon verification. In this case and in general, government kashrut supervision protects only the lenient or lackadaisical.
The Washington Post reported that the New Jersey Supreme Court’s decision “may mean consumers determined to keep kosher may have to do a lot more homework themselves on the products they buy.” In fact, observant Jews in New Jersey and elsewhere will continue to do what they have always done: look for the mark or certificate showing that a product or establishment passes muster with a religious authority they trust. This is really not a major obstacle, especially since kosher-food consumers tend to be highly motivated.
A Special-Interest Plea
In the end, the arguments for state kashrut supervision boil down to a special-interest plea: Some kosher-food consumers would like the government to subsidize their search and transaction costs. They may feel that the added assurance of state regulation allows them to be a little less careful. Or they may simply get a psychological benefit from knowing that private mashgichim are backed up by government inspectors. “I would want the support of the state,” says Rabbi Nissim Davidi, administrator of kashrut supervision with the Rabbinical Council of California. At the same time, he admits that he’s never had any contact with California’s kosher-food regulators, and he’s not sure exactly what they do.
You might think that state kashrut supervision would long ago have attracted the attention of anti-Semites. But the ACLU, anxious to maintain the separation of church and state, seems to worry about it a lot more than the American Nazi Party does. On the other hand, anti-Semitic propaganda has for years railed against what hate groups call “the kosher tax.” This is the alleged increase in price that results when a food company pays for private kashrut supervision, so that its products can display a mark of certification. According to the hate literature, the Jews are mysteriously able to impose this price hike on manufacturers and consumers. For those who don’t buy Jewish-conspiracy theories, a more plausible explanation is that the companies have calculated that the extra business generated by kashrut certification more than makes up for the cost of supervision. (Hence no price increase is necessary.)
Ironically, it’s this private, voluntary, market-driven process that attracts the attention of anti-Semites. So far, they seem oblivious to state kashrut supervision, which actually is a public subsidy, albeit a drop in the ocean of special-interest benefits doled out by government. I won’t tell them if you won’t.