Kosher: Private Regulation in the Age of Industrial Food 9780674075238

Citation preview

Kosher

KOSHER Private Regulation in the Age of Industrial Food

Timothy D. Lytton

H A R VA R D U N I V E R S I T Y P R E S S

Cambridge, Massachusetts, and London, England

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2013

Copyright © 2013 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Library of Congress Cataloging-in-Publication Data Lytton, Timothy D., 1965Kosher : private regulation in the age of industrial food / Timothy D. Lytton. pages cm Includes bibliographical references and index. ISBN 978-0-674-07293-0 (alk. paper) 1. Kosher food industry—United States. 2. Kosher food industry—Standards—United States. I. Title. HD9005.L98 2013 338.4'766100882960973—dc23 2012039293

To my father and the memory of my mother

And to Rachel Anisfeld Her mouth is full of wisdom, and lessons of kindness are upon her tongue. —Proverbs 31:26

Contents

Introduction Why Kosher Food Certification Is Worthy of Attention 1

1 RIVALRY AND RACKETEERING The Failures of Kosher Meat Supervision, 1850–1940

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2 FROM CANNED SOUP TO PACKAGED NUTS The Rise of Industrial Kashrus

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3 SOUR GRAPES AND SELF-REGULATION Creating an American Standard of Kashrus

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4 TAKING STOCK The Effectiveness and Integrity of the American Industrial Kashrus System 104

Conclusion Industrial Kashrus as a Model of Private Third-Party Certification 129

Appendix A Controversy over OU Dominance of Kosher Meat Certification 155

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Appendix B An Overview of Antitrust Concerns 161

Appendix C The Iowa Slaughterhouse Scandal and the Movement for Ethical Kashrus 164

Appendix D Self-Reported Data from Big Five Kosher Certification Agencies 166

Appendix E Supermarket Survey Data 168

Glossary of Terms and Names 171 List of Acronyms 174 Notes 175 Acknowledgments 221 Index 225

Introduction Why Kosher Food Certification Is Worthy of Attention

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hirley mae almer was killed by a peanut-butter sandwich. At age seventy-two, she had survived lung cancer surgery and radiation therapy for a brain tumor. But she finally succumbed to food poisoning from peanut butter contaminated with a deadly strain of salmonella. Public-health officials attributed eight additional deaths and nearly 22,500 cases of illness in late 2008 and early 2009 to foods containing peanut butter, peanut paste, and peanut meal produced by the Peanut Corporation of America.1 Federal inspectors at the company’s plants in Georgia and Texas discovered dead rodents, open holes in the roof, and pools of stagnant water. Company employees told reporters that conditions in the Georgia plant were “filthy and nasty.” One worker informed CBS News that he saw a rat dry-roasting in peanut processing equipment. On Good Morning America, a plant manager recounted how he had informed the owner of “water leaking off of a roof and bird feces washing in” but said that the owner would not authorize money for repairs. The company’s Texas plant was not licensed by the state as a food-manufacturing facility, so state inspectors never visited it until the salmonella outbreak became national news. Among some industry insiders, problems at Peanut Corporation of America were common knowledge. One buyer for a snack company told the media that everyone knew the company was “a time bomb waiting to go off.” Other insiders, like industry giant Kellogg, mistakenly relied on food-safety inspections by a private auditing firm, the American Institute of Baking, which issued a report on the Georgia facility concluding that

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“[t]he overall food safety level of this facility was considered to be superior.” This tragic episode highlights just how high the stakes are in food regulation—how lax oversight in just two industrial plants can result in a nationwide outbreak of deadly food poisoning. Peanuts processed by Peanut Corporation of America were used as ingredients in nearly four thousand products manufactured by more than 360 companies and sold to millions of consumers. Similar outbreaks of foodborne illness occur every year involving all types of foods, including meat, eggs, seafood, fruits, and vegetables. The scale and complexity of the nation’s industrial food system present significant regulatory challenges. As the Peanut Corporation of America case illustrates, government regulation is neither as comprehensive nor as vigilant as it needs to be to prevent all-too-frequent outbreaks of foodborne illness. Knowledge within the company, and more broadly within the industry, that the company’s production facilities were unsanitary suggests that industry self-regulation is, in many cases, inadequate to protect consumers. The report by the American Institute of Baking inspires little confidence in the reliability of private food-safety auditors. Similar regulatory challenges exist in the area of food labeling. At the supermarket, consumers are confronted by an endless parade of new food labels that misrepresent processed foods high in fat and/or sugar as “natural,” “fresh,” and “healthy.” For example, in 2007, the nonprofit Keystone Center assembled a coalition of food-industry executives and health advocates to design a new seal of approval to help consumers identify healthier foods. Two years later, the center launched its “Smart Choices” logo. But when the logo appeared on highly sweetened children’s breakfast cereals, full-fat mayonnaise, and ice cream, government regulators threatened legal action, and the project was discontinued. Officials charged with enforcing food-labeling regulations are constantly frustrated by the hydralike quality of new nutrition and health claims on food packages. As soon as government regulators put an end to one misleading labeling scheme, others emerge to take its place. And neither industry nor private alternatives to government regulation have so far satisfied demands for better consumer protection.2 Amid the frequent outbreaks of foodborne illness and the pervasiveness of misleading food labels, a little-noticed area of industrial food regulation offers a model of success: kosher food certification. A network of more than three hundred private kosher certifiers throughout the United States reliably ensures compliance with religious standards of food production and prevents deceptive marketing. The success of ko-

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sher food certification holds many important lessons that can be applied to food regulation more generally—highlighting sources of regulatory failure and pointing the way toward reform. Kosher certification, however, was not always so reliable. Fraud and corruption plagued kosher meat production in the United States from the mid-1800s to the mid-1900s. The New York City Department of Markets estimated in 1925 that 40 percent of the meat sold as kosher in the city was actually not kosher. The industry was notorious for price-fixing schemes, racketeering, and even murder for hire. These problems proved too big for government regulators. Six full-time kosher inspectors in the New York City of Department of Markets and ten in the New York State Kosher Enforcement Bureau by the late 1930s were insufficient to oversee the eighteen thousand kosher food establishments in New York City.3 Reform finally came to the American kosher food industry with the rise of a new regulatory institution: the private kosher certification agency. This book tells the story of how private kosher certification agencies transformed kosher supervision in America from a tool of fraud and corruption into a model of nongovernmental industry regulation. The origins of private kosher certification agencies can be traced back to the newly emerging demand for industrially prepared foods among kosher consumers at the turn of the twentieth century. Gradual professionalization of kosher supervision raised ethical standards, and increasing bureaucratization of kosher certification agencies provided institutional checks and balances to prevent mistakes and misconduct. Today, these agencies utilize social networks based on trust and reputation to establish and enforce what many have called the American standard of kosher certification. To be sure, problems in the kosher food industry remain. Fraud still occurs, and agencies accuse each other of unethical behavior in the fierce competition for industrial clients. But the industry no longer suffers from the type of widespread dishonesty and corruption that was rampant a century ago. From a food-policy perspective, the successful development of the kosher food certification system is no small matter. Kosher food is big business. There are more than ten thousand kosher-producing companies in the United States alone, making more than 135,000 kosher products for over twelve million American consumers who purchase kosher food because it is kosher. Only 8 percent of kosher consumers are religious Jews—the rest choose kosher food for reasons related to health, food safety, taste, vegetarianism, and lactose intolerance or to satisfy non-Jewish religious requirements such as halal (dietary restrictions prescribed by Islamic law). The U.S. kosher market generates more than $12 billion in annual retail sales,

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and more products are labeled kosher than are labeled organic, natural, or premium.4 The growing popularity of kosher food in America is a response to a more general cultural anxiety about industrialization of the food supply. Like the movements to eat organic, local, or ethically produced foods, the turn toward kosher is, for many consumers, a way to personalize food production. The image of a rabbi overseeing production—motivated by a deep religious commitment to the ritual purity of food—diminishes the unease many feel about eating food manufactured in factories using industrially produced ingredients. Ironically, the demand for kosher certification among food producers is driven by the increasing industrialization of food production (the more ingredients and processing, the more supervision required), whereas the demand for kosher certification among food consumers is driven by anxiety about this very same phenomenon. The chapters that follow look beyond the public perception that kosher certification personalizes industrial food production. The aim is not to debunk but rather to explain the actual mechanics of kosher certification— its standards, administration, and self-regulation. In an age when consumers demand a lot of information about the food they eat—what’s in it, where it comes from, and how it is made—few people outside of the kosher food industry know much about how kosher certification really works. This book does not argue either for or against eating kosher food. It takes no position on whether kosher food is safer or healthier than nonkosher food or whether kosher certification ought to include standards for animal welfare, environmental sustainability, or labor conditions. My claim is simply that today’s kosher certification system reliably ensures that food labeled kosher is kosher. Kosher certification is a model of successful private regulation. The term “private regulation” may strike some readers as odd, especially in the context of contemporary political debate, which presents a stark choice between government regulation and unregulated private markets. For at least two decades, however, scholars within the “new governance” movement have emphasized that between these two extremes lies a spectrum of regulatory options, such as public-private partnerships, tradable permits, and private standard setting. There is a growing consciousness that economic and social regulation have never really been the exclusive domain of government authorities and that private entities can perform regulatory functions.5 The example of kosher certification highlights the advantages of private regulation over government regulation. Private certifiers have largely

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overcome the problems that hamper government regulation of kosher food—problems such as inadequate inspection resources and insufficiently powerful means of enforcement. Kosher certification also offers lessons that can improve the performance of private regulation in other contexts such as food safety and labeling. In these contexts, private certifiers receive fees from the companies they certify, and this often leads them to put the interests of company clients ahead of their duty to protect consumers. The historical development of kosher certification illustrates effective strategies for managing this conflict of interest in order to make private certification more reliable. The success of kosher certification, however, does not support a general preference for private over government regulation, nor does it suggest that the two are mutually exclusive. Each regulatory strategy has comparative strengths and weaknesses that make it well suited for some regulatory tasks and poorly suited for others. Kosher certification provides valuable insights into the relative strengths and weaknesses of private certification as a regulatory strategy that, alongside government efforts, can enhance regulatory outcomes. Private certification is widespread in many fields, including higher education, health care, finance, and consumer product safety. Scholars have begun to explore the advantages and limitations of private certification in recent studies of fire safety, nuclear energy, securities rating, and forestry management.6 Several attributes of the kosher certification system make it an especially worthy candidate for study in this emerging field—its one-hundred-year history, network of hundreds of certifying agencies, and effectiveness in regulating one of the nation’s largest industries. Chapter 1 begins with a historical analysis of the failures of kosher meat supervision in the United States from 1850 to 1940. The traditional means of regulating kosher trade in the Old World had been centralized communal control backed by government power. This approach proved impossible in America. By the mid-1800s, most Jewish communities in America contained a diverse mix of immigrants from different cultural backgrounds who founded rival synagogues within the same locality. Moreover, in America, communal authority was not an extension of civil government, so it lacked coercive power to enforce its rulings. In this context, communal control over kosher trade collapsed. The chapter chronicles the failure of successive attempts to clean up rampant fraud and corruption in the kosher meat industry through communal control, industry selfregulation, and government intervention. Chapter 2 examines the emergence of private kosher certification agencies in the second half of the twentieth century. It shows how growing

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demand for kosher certification of packaged foods gave rise to fierce competition among agencies that marketed their certification services to industrial food producers as distinct brands. Each kosher certification agency attempted to distinguish its brand by arguing that its certification was considered more reliable among kosher consumers than other certifications. To bolster their reputations for reliability, agencies developed internal systems of management oversight and instituted professional training of kosher inspectors to prevent misconduct and mistakes. Increasing management oversight and professionalization, driven by brand competition, greatly improved the reliability of kosher certification. Chapter 3 explores how interdependence among private kosher certification agencies has led to cooperation in the development and enforcement of industry standards. The nature of industrial food supply chains makes agencies highly interdependent. An agency that certifies an ingredient can provide the manufacturer access to the kosher market only if its certification is acceptable to other agencies certifying products that include the ingredient further downstream in the production process. Thus, upstream certifiers have an incentive to satisfy the standards of downstream certifiers. In turn, the reputation of downstream certifiers depends upon the reliability of upstream ingredient certifiers. Misconduct or mistakes by an ingredient certifier renders downstream finished products nonkosher and can easily damage the reputation of the agencies that certify the finished products. The relative position of agencies in the production process varies from product to product since most agencies certify both ingredients and finished products. Moreover, fraud or corruption by any agency undermines confidence in kosher certification as a whole among food producers and consumers. This interdependence among agencies has led to the development and enforcement of industry standards, known collectively as the American standard of kosher certification, which have proven effective in maintaining the integrity of kosher certification. Chapter 4 evaluates the performance of the kosher certification system in preventing consumer fraud and agency corruption. Available evidence suggests that kosher fraud is relatively rare. The chapter explains how private kosher certification agencies avoid problems such as inadequate inspection resources and insufficiently powerful means of enforcement that limit government regulation of kosher food. In addition to regulating food manufacturers, the kosher certification system also regulates itself. The chapter shows how bonds of trust and reputational sanctions reward those certifiers who maintain high standards and marginalize those who do not. The Conclusion suggests that the kosher certification system offers a model of private third-party certification that can improve regulatory

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outcomes in other areas of food regulation. The chapter identifies key features of kosher certification that account for its success. The chapter then shows how these features could be replicated to improve the reliability of private food-safety audits, nutrition labeling, and ecolabeling. Before turning to the historical analysis of kosher meat supervision in Chapter 1, readers unfamiliar with kosher observance may find helpful a brief general introduction to kosher law and practice. More detailed analysis of kosher production and certification is woven into the chapters as needed. A glossary at the end of the book defines technical terms and identifies important people. The book neither assumes nor requires expertise in kosher law.

The Sources, Laws, and Significance of Kosher Observance The term “kosher” derives from the Hebrew word kasher, meaning “fit” or “proper.” The basis for kosher dietary restrictions—kashrus* in Hebrew—is various passages in the Hebrew scriptures that govern food consumption and food preparation. For example, the Torah prohibits eating certain species of animals, such as pork and shellfish, and it proscribes cooking a kid in its mother’s milk.7 Rabbinic law, stretching from the beginning of the Common Era to today, has developed these rudimentary biblical precepts into a system of detailed laws. For instance, the proscription of cooking a kid in its mother’s milk has developed into a more general prohibition against the mixing of meat and dairy products in the same food or even in the same meal. Adherence to kashrus among Jews ranges from strict observance to complete disregard. Among those who fall between these extremes, one finds Jews who observe kashrus at home but eat nonkosher food at their workplaces or restaurants. In addition, there are gradations of observance among those who eat nonkosher food outside the home. Some limit themselves to eating nonkosher vegetarian foods, while others eat nonkosher meat and seafood but refrain from pork and shellfish. Reasons for adherence to kashrus also vary widely. Some religious Jews believe that kashrus is a divine command and that eating nonkosher food is a serious sin. Others view kashrus as one of a number of traditional customs that, along with other practices such as daily prayer and Sabbath * The modern Hebrew pronunciation is kashrut. Throughout this book I employ the traditional Ashkenazic pronunciation kashrus, favored by kosher certification agency personnel and many Orthodox Jews in the United States. Some organizational names and quotations use kashrut or kashruth instead.

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observance, constitute essential elements of Jewish religious life. Still others are motivated by sentimental attachment to certain foods and recipes that they grew up with or that contribute to their sense of religious or ethnic identity. These reasons are by no means mutually exclusive, nor is this list exhaustive. Commentators throughout the centuries have offered a variety of justifications for kashrus. According to one view, accepting the restraints imposed by kashrus builds personal discipline and ethical character. Another account suggests that kosher restrictions serve to separate Jews both symbolically and socially from other groups. A third approach asserts that health concerns underlie kosher restrictions. Defenders of kosher slaughter have claimed that it minimizes the suffering of animals. Again, these are just a sampling of the competing theories concerning the justification for kashrus.8 When Jewish immigrants came to America, they brought kashrus with them. The next chapter examines the difficulties of adapting this ancient religious observance to the New World. It presents a story of chronic regulatory failure, which makes the reliability of kosher certification today all the more remarkable.

CHAPTER ONE

Rivalry and Racketeering The Failures of Kosher Meat Supervision, 1850–1940

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ne night in 1933, a delivery truck owned by Jacob Branfman & Son, one of New York City’s leading kosher delicatessen manufacturers, pulled up outside of a meat-cutting establishment on Manhattan’s Lower East Side. The ownership of the truck was concealed by a specially designed oilcloth flap on the side of the truck that covered the Branfman name and familiar company slogan—“The Name Deserves the Fame.” A number of barrels containing nonkosher meat were loaded onto the truck, which then proceeded to the Branfman factory and retail store a short distance away, where it delivered its nonkosher cargo. During these events, an undercover investigative team, including officials from the New York City Department of Health and the U.S. Department of Agriculture, and two Orthodox rabbis, kept the truck under constant surveillance. Following delivery of the barrels, they raided the Branfman factory, where they found Ben Branfman, secretary and treasurer of the company, supervising the receipt of thirteen barrels of nonkosher beef briskets. The company and Branfman were subsequently convicted of fraud. According to one account, the rabbis in charge of kosher supervision at the company had been complicit for many years, and they attempted to cover up the problem even after the raid.1 Fraud was not the only source of illicit profits in the kosher meat business in the early twentieth century, nor was it the worst crime associated with the industry. In 1906, a group of New York City poultry distributors organized the Live Poultry Commission Merchants’ Protective Association, which fixed wholesale prices for kosher poultry and forced poultry retailers to buy exclusively from the association. The association

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punished retailers who refused to cooperate by establishing competing stores that sold at lower prices. Thirteen association members were ultimately convicted of illegal price-fixing in 1911 based on the testimony of Bernard Baff, a poultry retailer. Baff’s horse and chickens were subsequently poisoned, his summer cottage and one of his stores were bombed, and he was gunned down in 1914 in the Washington Market by unknown assailants, who fled in a getaway car. The Baff murder remained unsolved for several years, during which time suspicions focused on the poultry distributors. As it turned out, the murder was paid for by a group of one hundred poultry retailers who resented Baff’s dominance in the retail poultry trade, which he achieved by dealing directly with poultry farmers, obtaining a fleet of trucks, and operating his own slaughtering operations—thereby cutting out middlemen and allowing him to charge lower prices than his competitors.2 These two notorious scandals are emblematic of the fraud and corruption that plagued the kosher meat industry in the United States, especially in New York City, from the mid-1800s to the mid-1900s. Slaughterhouse owners and butchers regularly sold nonkosher meat and poultry as kosher while supervising rabbis whom they employed turned a blind eye. Trade associations and unions engaged in illegal price-fixing schemes and extortion, enforcing their demands through intimidation, physical violence, and even murder. As early as 1887, a rabbi in New York City described the state of kosher supervision in the following terms: “So great is the scandal in this great city, that thousands of honest families who fear and tremble at the thought of straying into one tiny prohibition or sin never suspect that they are eating all kinds of unkosher meat.”3 More than fifty years later, a 1943 pamphlet calling for industry reform declared that “the kosher meat business is a gigantic fraud.”4 During this period, Jewish communal organizations made repeated attempts to clean up the kosher meat industry, but their efforts were frustrated by rabbinic rivalry, lack of community support, and insufficient funding. Government investigations periodically documented the scope of the problem. For example, in 1925 the New York City Department of Markets estimated that 40 percent of the meat sold as kosher in the city was nonkosher. Community and industry association estimates ranged from 50 to 65 percent.5 Yet government efforts at civil enforcement and criminal prosecutions addressed only a tiny fraction of the problem. What distinguishes the history of kosher meat production in America is not the existence of these problems but the failure of traditional means to control them. Jewish communities throughout the world in antiquity, the Middle Ages, and the modern era developed regulations to prevent

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fraud and corruption in the kosher meat business. Local Jewish communal organizations enforced these regulations using a mix of moral suasion and punishment. Concern for one’s reputation within a small community also motivated those in the kosher meat industry to run a clean business. Traditional means of regulating kosher slaughter relied on centralized communal authority and limited opportunities for those caught perpetrating fraud to leave one community and make a fresh start in another. These conditions were difficult to replicate in the liberal culture and free market of America. As several scholars have pointed out, efforts in the late nineteenth and early twentieth centuries to establish centralized communal control of the kosher meat industry “foundered on the American commitment to free enterprise and voluntarism.”6 Government intervention, although it addressed some of the most notorious cases, was inadequate, given the extent of fraud and corruption in the industry. This chapter analyzes how traditional approaches and government intervention failed in regulating kosher meat production in America. In surveying the regulation of kosher meat production from ancient to modern times, the chapter aims to identify distinct regulatory strategies, describe their development over time, and explain why they were unsuccessful in America. My account is schematic. For a more detailed history, readers should consult sources cited in the endnotes. My aim is to set the stage for the next chapter’s account of the rise of a new institutional form of kashrus regulation shaped by America’s free market liberalism—private kosher certification agencies.

A Brief Introduction to Kosher Meat Production The kosher status of meat and poultry is a function of the species of animal, the method of slaughter, and postslaughter inspection and processing. The Torah allows Jews to consume only those terrestrial mammals that have cloven hooves and chew their cud, such as cattle, sheep, and goats. The Torah permits consumption of all fowl with the exception of twentyfour species that are specifically prohibited. Since the precise translation of the terms for prohibited fowl is unknown, subsequent rabbinic commentary has restricted the consumption of fowl to those that are, by tradition, considered kosher. Commonly consumed species of kosher fowl include chicken, turkey, duck, and goose.7 The Torah permits consumption of kosher meat and poultry only when an animal is properly slaughtered. The details of kosher slaughter— shechitah in Hebrew—were developed by rabbinic commentary and

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customary practice. Shechitah has three principle requirements. First, it must be performed by a qualified slaughterer—shochet (plural, shochtim)— who should be a pious Jew well versed in the laws of shechitah and possessing the skill to execute them. Second, shechitah must be performed with a special knife that has a long, razor-sharp blade free of any nicks or imperfections that might cause tearing in the flesh of the animal being slaughtered. This knife must be regularly inspected and sharpened to maintain a flawless cutting edge. Third, shechitah requires a smooth to-andfro slicing motion with the knife across a clearly defined area on the throat of the animal. Any one of a number of proscribed mistakes in this motion— such as pressing the blade too firmly against the neck of the animal, halting during the stroke, or tearing rather than slicing—renders the animal nonkosher, or treyf.8 The Torah and rabbinic commentary prohibit consumption of any animal that has suffered from a mortal injury or illness even if properly slaughtered. After slaughter, a specially trained inspector (bodek; plural, bodkim) conducts an inspection (bedikah) of the carcass to check for any signs of a disqualifying illness. For cattle, this normally consists of inspection of the lungs for any lesions or perforations that indicate serious illness, which would render the animal treyf. The lungs are subject to inspection because they are the most commonly damaged organs. Serious illness often causes lung perforations and the subsequent formation of a mucous lesion or scab that covers the hole, allowing the lung to continue functioning. There is a presumption that this fix is only temporary and that the animal will eventually sicken and die. The presence of such a lesion or perforation therefore renders the animal treyf. The shochet is typically qualified to perform bedikah, which he does by first cutting open the slaughtered animal and inserting his hand into the carcass to feel the outside surface of the lungs. He then removes the lungs from the carcass for visual inspection. Poultry inspection involves inspection of the intestines for lesions, as well as checking for swelling at the juncture of the leg tendons, broken bones, discoloration, or unusual anatomy of internal organs. The Torah prohibition against eating blood necessitates special processing of meat and poultry by butchers, also referred to as meat cutters.9 This involves the removal or draining of large blood vessels and the extraction of blood from the flesh of the animal through a process of soaking and salting or, in some cases, broiling the meat. In the case of cattle, the Torah also prohibits consumption of the sciatic nerve and certain types of fat found around the internal organs. The removal of blood vessels and prohibited fats—a process called nikur—in the front half of the

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animal defines common kosher cuts of meat, such as brisket, shoulder, flank, and rib. Removal of the more numerous blood vessels, along with the sciatic nerve and prohibited fats, in the rear half of the animal is technically difficult and time consuming and requires extensive cutting of the meat. Where there is a ready market for nonkosher meat, the entire rear half of the animal is typically sold in the nonkosher market. The extraction of blood, known as kashering, must be performed within seventytwo hours of slaughter—before the blood becomes too congealed to extract. If kashering is not possible within this time limit, the meat may be washed or soaked to extend the period for another seventy-two hours, a process that can be repeated one additional time if necessary. The extra effort involved in the production of kosher meat and poultry adds significantly to the cost of production and leads to higher prices.10 Fraudulently marketing nonkosher meat as kosher allows a seller to avoid the extra cost while still receiving the premium paid for kosher products. Kosher fraud is an old problem with a long history. We turn next to the various regulatory strategies developed to address it.

Kosher Meat Regulation in the Ancient World In discussions of kosher meat production, the Talmud frequently mentions the figure of the tabach—literally, “slaughterer” (plural, tabachim). The ancient tabach was slaughterer, butcher, and retail seller all in one. A conflict of interest was inherent in the tabach’s financial stake in the kosher status of the meat he both slaughtered and sold. The higher market value of kosher meat provided a powerful incentive for fraud, and errors in shechitah, defects discovered during bedikah, or shortcuts in kashering were easy to conceal as they were not perceptible in the appearance of the meat itself.11 In response to this situation, the ancient rabbis claimed the right to inspect the knife of any tabach to check for imperfections in the blade that might render animals slaughtered with it not kosher. The rabbis imposed severe punishments for refusal to allow inspection, including banning the offender from selling meat and excommunication. The rabbis also established qualifications for tabachim, who had to be observant Jews of sound mind, be well versed in the laws of shechitah, and have strong nerves. Those barred from the profession included gentiles, Jews who violated the Sabbath or ate treyf meat, minors, those with mental disability, and individuals prone to fainting during slaughter. The rabbis vigorously prosecuted tabachim accused of selling treyf meat as kosher, and they banned from the trade those who were convicted.

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The Babylonian Talmud relates the case of a fourth-century tabach suspected of fraudulently selling forbidden fat as kosher. The rabbinic sage Rav Pappa suggested that the appropriate punishment would be to forbid the offender from selling even water or salt.12 Concern that treyf meat could be purposely or inadvertently substituted for kosher meat gave rise to a minority opinion in the Talmud that kosher meat must be continuously supervised from slaughter to consumption or, at least, designated clearly with a mark or seal. The majority view, however, was that meat sold by a Jew was presumptively kosher. Special concerns about fraud arose in towns of mixed Jewish-gentile population. Provided that all slaughter in a town was conducted by tabachim, the rabbis permitted Jews to purchase kosher meat from both Jewish and gentile retail dealers. Sometimes the tabachim came into possession of nonkosher meat—for example, when postslaughter inspection revealed perforations in the lungs of an animal. All nonkosher meat was sold to gentile meat dealers, who then sold it to gentile customers. Concerned that gentile dealers might sell this nonkosher meat to Jews, the rabbis prohibited Jews from purchasing meat from gentile retail dealers on days that treyf meat was present in the local slaughterhouse. On such days, a public proclamation was issued declaring that treyf meat was present in the town and that Jews should not purchase meat from gentile dealers that day. This brief survey of rabbinic responses to kosher fraud in the ancient world highlights six distinct regulatory techniques: (1) rabbinic supervision, (2) product labeling, (3) professional standards, (4) consumer alerts, (5) presumptions of trustworthiness based on a common religious commitment to kashrus, and (6) exclusion from the industry as a punishment for fraud. These ancient regulatory techniques are the foundation of kosher certification today.

The Institutionalization of Kosher Meat Regulation in the Medieval and Modern Eras The regulatory techniques established in the ancient period were further developed and institutionalized in the medieval and modern eras. The central institution regulating kosher meat production in the medieval and modern eras was the community council—known by the Hebrew term for “community,” kehillah (plural, kehillot). Civil authorities throughout the Diaspora granted Jewish communities autonomy, which was often characterized by full powers of internal legislation and governance, including civil and criminal jurisdiction as well as administration of stan-

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dard municipal functions. The kehillah—whose members were elected or appointed—was responsible for collecting taxes to be paid to the state and for governing the internal affairs of the community. Members of the kehillah were often local lay leaders who deferred to the rulings of rabbinic authorities in matters concerning Jewish law. The kehillah’s enforcement powers included fines, corporal punishment, exclusion from the community, and, in some places, capital punishment. Appeal from kehillah decisions to external authorities was frequently only by permission of the kehillah itself. While there were significant variations across place and time, in its classical form, the kehillah’s legal authority within the community was comprehensive and exclusive: it covered the full range of internal administrative functions, and all the Jews of a particular locality fell under its jurisdiction. The kehillah’s powers were greatest between its origins in the eleventh century and the rise of the modern European state in the 1800s. With the extension of citizenship to Jews as individuals, many modern European states removed legal autonomy from the kehillah, leaving it to exercise mainly religious functions.13 In order to address persistent concerns about the conflict of interest in kosher meat production, medieval rabbinic authorities decreed that one who slaughters an animal may not have a financial interest in sale of the meat. Kehillot accordingly divided the job of tabach into two distinct professions—the shochet, who slaughtered and inspected animals, and the meat dealer, who sold meat. No person was permitted to serve as both shochet and meat dealer. To insulate the shochet from any pressure from the meat dealer to declare treyf meat kosher, the shochet was employed by the kehillah. The shochet thus became an appointed community official paid by the kehillah, and meat dealers who sought his services would make payment to the kehillah. Rabbinic authorities and kehillot in many communities required that shochtim receive the same compensation for slaughter regardless of whether an animal turned out to be treyf or kosher, and in some places the shochet received a fixed salary. Concern about the reliability of the shochet’s judgment led some kehillot to institute a requirement that cattle slaughter be conducted by two shochtim so that one shochet could check the other’s knife and both together could inspect the lungs. Those failing to adhere to kehillah regulations risked having their meat declared treyf or, worse, being removed from office.14 As an appointed office, the job of shochet was formalized in a number of ways designed to strengthen the independence of shochtim and provide them added incentives to avoid mistakes and refrain from misconduct. Kehillot instituted fair and open selection procedures to secure appointment so that a shochet did not feel beholden to anyone for his

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position. Shochtim also enjoyed perpetual tenure in office in the absence of proven incompetence or misconduct. In addition, provisions were made for the maintenance of a shochet after retirement. Beyond pension benefits, the right of a duly appointed shochet to his office was, in many communities, treated as a form of property that could be transferred from one generation to the next. The restriction of shechitah exclusively to individuals appointed by the kehillah protected local shochtim from competition. These features of the office made it a guaranteed source of income and a valuable asset, and officeholders were eager to maintain high standards and a good reputation in order to avoid any risk of losing it. Beginning in the Middle Ages, eligibility for appointment as a shochet required professional training and certification. This began with examination by a rabbi or an expert prior to granting a shochet permission to practice in a community. In some communities authorities instituted periodic examination of shochtim to ensure that they remained well versed in the laws of kosher slaughter. Eventually, there developed a more institutionalized apprenticeship process. Rabbinic authorities first inquired into each candidate’s piety and moral character. Candidates then had to pass through three levels of apprenticeship and examination corresponding to the skill required for slaughtering fowl, small cattle, and large cattle. Upon successful completion of each level, candidates were awarded a license to practice the corresponding forms of kosher slaughter. Kehillot also regulated meat dealers. The risk of fraud at the retail level was always present since Jewish butchers were regularly in possession of treyf meat—whole carcasses that were improperly slaughtered or that failed inspection, hinds destined for the nonkosher market, and meat that was left unkashered and unrinsed for more than seventy-two hours after slaughter—and the dealer could get a higher price for kosher meat than for treyf. Kehillot allowed only pious and trustworthy men to sell meat. In towns too small to support a Jewish butcher, gentile meat dealers would set up a special counter at which the shochet or some other Jew would sell kosher meat to Jewish customers. With the rise of large cities, where not everyone knew the local butcher personally, communal authorities no longer relied on the personal trustworthiness of the butcher. In such communities, rabbinic authorities decreed that a kosher butcher could sell only kosher meat in his store and would have to sell nonkosher carcasses and hinds to non-Jewish butchers for retail sale elsewhere. Rabbinic authorities also instituted on-site rabbinic supervision of butcher shops by an appointed overseer—mashgiach (plural mashgichim). In the case of gentile-owned butcher shops that conducted both kosher and nonkosher trade, the rabbis appointed a con-

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stant overseer—mashgiach temidi—to oversee meat production from slaughter to retail sale. Eventually, a mashgiach temidi was required for Jewish-owned butcher shops as well. In addition, there developed the practice of marking kosher meat by affixing a lead tag stamped with the word “kosher” and the date of slaughter. This tag, know as a plombe (the Latin term for “lead”), was originally employed only for meat left unguarded or in the possession of a non-Jew but eventually was applied to all meat in larger communities. From this practice arose a new job, that of the plombirer, who affixed the seals to meat. Much of the regulation discussed so far applied to beef and lamb. In the case of poultry, Jewish housewives purchased a live fowl at the market, brought it to the shochet for slaughter, and then took it home to inspect, eviscerate, and kasher in the kitchen. Questions about the kosher status of a fowl based on inspection were taken by the housewife directly to the local rabbi. By the nineteenth century, in response to consumer demand, butcher shops began to sell already kashered poultry, and kehillot extended the plombe requirement to poultry.15 The imposition of slaughtering fees paid to the kehillah was a major source of revenue used to pay shochtim and mashgichim and to support other community services, such as synagogues, rabbinic salaries, education, medical care, welfare, cemeteries, and administrative expenses. Meat taxes were also used to defray the collective tax burden owed to the civil government. In some communities, meat dealers paid the kehillah a fee and received a ticket that could be presented to a shochet in order to obtain his services. In other communities, fees were collected by kehillah officials at the slaughterhouse. The cost of these taxes was passed on to consumers in the retail price of meat. In order to prevent avoidance of the meat tax, kehillot banned importation of meat slaughtered outside the community. Kehillot also auctioned the right to collect meat taxes to tax farmers. The considerable money involved in the meat tax led, in some instances, to corruption. Kehillot misappropriated funds, tax farmers bribed local police officials to collect more than the legal rates, and civil governments took over administration of the tax and diverted funds that would otherwise have been used to support the community. While in most communities, meat taxes were essential to the financial viability of the kehillah system, abuses created resentment against kehillah officers and civil authorities.16 This brief survey of medieval and modern regulation of kosher meat production condenses roughly a thousand years of history and ignores local variation and changes over time. My aim has not been to provide a detailed historical account but rather a general overview of how ancient

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regulatory techniques were further developed and institutionalized in some communities during this period. These regulatory approaches were part of a tradition of kosher meat regulation that Jews brought to America.

The Congregational Shochet System in the United States from Colonial Times to the Mid-1800s The first Jewish community in the United States was founded in 1654 by a small group of Sephardic Jews of Spanish and Portuguese origin who left Brazil and settled in the Dutch Colony of New Amsterdam, later renamed New York City under English rule. By the early 1700s, the community had established a synagogue, Congregation Shearith Israel, which, over the course of the next century, absorbed Sephardic and Ashkenazic immigrants from Holland, Portugal, England, France, Germany, Poland, and the West Indies. Until 1825, Shearith Israel was the only congregation in New York City. It was governed by a lay board composed of wealthier members of the congregation and presided over by a president. The board appointed officers, including a cantor, who led prayers, chanted the Torah reading, and assumed other ceremonial functions inside and outside of the community. Although the cantor was sometimes referred to as “minister,” “pastor,” “reverend,” “rector,” or “doctor,” and non-Jews treated him with the respect generally afforded to clergy, the cantor was a religious functionary, subject entirely to the authority of the lay board. Shearith Israel was governed by a diverse group of merchants with limited knowledge of Jewish law. The congregation did not hire a rabbi until the middle of the nineteenth century.17 In eighteenth-century America, the synagogue dominated Jewish communal life. “Indeed,” explains historian Jonathan Sarna, “the synagogue and organized Jewish community became one and the same—a synagoguecommunity—and as such it assumed primary responsibility . . . for all aspects of Jewish religious life: communal worship, dietary laws, life-cycle events, education, philanthropy, ties to Jews around the world, oversight of the cemetery and ritual baths.” Modeled on the kehillah, the synagoguecommunity “promoted group-solidarity and discipline” and resorted to punishments such as fines, denial of synagogue honors, exclusion from the Jewish cemetery, and even excommunication, when necessary.18 Evidence of synagogue-community regulation of kosher meat production dates back to 1728. Shearith Israel’s records note the retirement in that year of the congregational shochet, Benjamin Elias. Throughout the rest of the 1700s and into the early 1800s, the only kosher meat in New York City was slaughtered by Shearith Israel’s congregational shochet

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and sold by gentile meat dealers approved by the congregation. The congregational shochet was, upon examination by the “minister or his representative,” appointed by the synagogue leadership for a fixed term and paid a regular salary. The congregation provided lead seals that the shochet affixed to all kosher meat. Shochtim who were found guilty of mistakes or misconduct were dismissed from office.19 Outside of New York City, the synagogue-community structure of Shearith Israel served as a model for smaller Jewish communities in the United States.20 Synagogue-community regulation of kosher meat production suffered a serious blow in 1813. In that year, the trustees of Shearith Israel refused to reappoint Jacob Abrahams as congregational shochet. Abrahams had served in the office for ten years, during which time there had been many complaints about him, so the trustees dismissed him and appointed another shochet in his place. In defiance, Abrahams continued to slaughter privately and sold his meat to butchers not approved by the congregation but who advertised it as kosher. The trustees petitioned the New York City Common Council for a declaration making it illegal to sell meat labeled kosher unless the animal was slaughtered by a shochet authorized by Shearith Israel and sold by a butcher approved by the congregation. Siding with the congregation, the Common Council passed an ordinance giving the congregational shochet an exclusive right to seal meat as kosher and giving the congregation an exclusive right to authorize the retail sale of kosher meat. In response, allies of Abrahams within the congregation petitioned the Common Council to repeal the ordinance, arguing that it violated the religious liberty of Abrahams and those who wished to purchase the meat he slaughtered. The council reversed itself and repealed the ordinance.21 The Abrahams affair gave rise to a uniquely American problem for communal regulation of kosher meat production: the independent shochet. Since the independent shochet was paid directly for his services by the slaughterhouse owner or meat dealer, he had a financial interest in the kosher status of the animals he slaughtered. He answered to no congregational authority that could ensure he possessed either the requisite knowledge and skill to perform valid kosher slaughter or the piety and good character to be trusted. His reputation in the community mattered little as he was beholden only to his employer, who was himself subject to no oversight. In some establishments, rabbis did provide oversight, but they were largely ineffective in preventing fraud since they, too, were paid by the slaughterhouses and butchers that they supervised.22 By midcentury, the majority of Jews in New York City patronized butchers who employed independent shochtim, and individual congregations could not

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afford to provide supervision directly to slaughterhouses and butcher shops. By 1875, the system of synagogue control over shechitah had collapsed.23 Rabbi Moses Weinberger of the Lower East Side provided a grim portrait of the kosher meat business in 1887. “Shochatim and butchers, upon whose shoulders rest all responsibility for the laws of kashrus . . . are perfectly independent here; neither they nor their work is inspected. . . . [T]he work of shechitah here is thus like all other jobs: it can be undertaken by anyone who finds an opening. . . . As far as [the butchers] are concerned, any slaughtered fowl with blood removed is marketable, even if the shochet admits that he slaughtered totally impermissibly.” Among shochtim, Weinberger lamented, “absolute anarchy reigns,” and butchers “live in a world of lawlessness.”24 The increasing size and diversity of New York City’s Jewish population in the latter half of the nineteenth century also undermined synagoguecommunity regulation of kosher meat production. In 1750, the Shearith Israel synagogue-community governed a Jewish population of only sixty families, about 350 people.25 By 1855, New York City had more than twenty synagogues—with distinct traditions and independent governance— and in 1859 the city had a Jewish population of more than forty thousand.26 By 1880 this figure had doubled, and, with mass immigration from eastern Europe, by 1915 there were more than four hundred registered synagogues in the Lower East Side alone, and the city’s Jewish population reached 1.4 million.27 In 1918, one Jewish organization counted more than 826 Jewish congregations in the city.28 This growing Jewish population fueled a rapidly expanding and increasingly ungovernable market for kosher meat. Butcher shops catering to the kosher trade proliferated. In 1902, there were 1,500 butcher shops that advertised kosher meat in New York City, a figure that rose to 6,000 by 1915 and 7,500 by 1930.29 The scale of the market simply outstripped the capacities of individual congregations to supervise the production and sale of kosher meat. Outside of New York City, the rise of the independent shochet and the emergence of a mass consumer market similarly undermined congregational control over kosher meat production.30

The Search for Institutional Alternatives Jewish law and tradition provided a range of regulatory techniques for dealing with kosher fraud. The problem was finding an institution that could successfully implement them in America. Between 1845 and 1940, repeated attempts were made to establish new institutions capable of

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regulating kosher meat production. In New York City, all of these attempts were thwarted by factionalism, rabbinic rivalry, consumer apathy, corruption, and the sheer size of the problem. One approach was to form a coalition of congregations that would support a single organization to oversee kosher meat production. For example, in 1863, representatives from a number of New York City congregations met and established the Association of the United Hebrew Congregations. The association appointed a Shechitah Board that examined and licensed shochtim. It also certified butcher shops, required placement of a uniform lead seal on kosher meat, and publicized the names of approved shochtim and butcher shops.31 The association’s efforts quickly foundered for lack of community support. A Jewish weekly paper reported in 1864 “that many Israelites continue to purchase meat without investigating whether the seal of the Association is attached.” By 1867, the paper reported that the Shechitah Board was “not in practical operation; it was not adequately sustained. People continued to buy from their favorite butchers, whether Jew or Gentile, licensed or unscrupulous; the Board examined a large number of shohetim, and declined to give some certificates, but their efforts were neutralized by the carelessness and indifference of the community.”32 A second approach was to vest the power to regulate kosher meat production in a chief rabbi. In 1887, the lay leadership of Beth Midrash HaGadol, New York City’s leading Russian American congregation, located in the Lower East Side, organized an effort to appoint a chief rabbi of New York capable of uniting Orthodox congregations with the aim of strengthening traditional religious observance. Representatives from eighteen congregations pledged funding and established the Association of American Orthodox Hebrew Congregations. A number of prominent uptown Jewish community leaders also supported the effort and joined the association. After consulting with leading Eastern European rabbis, the association hired Rabbi Jacob Joseph, a widely respected preacher and religious judge in Vilna, Lithuania.33 From the very beginning, kashrus regulation was at the top of the association’s agenda. In order to shield the chief rabbi from accusations of conflict of interest, the association’s constitution and the chief rabbi’s contract stipulated that he was to receive no fees for licensing shochtim or certifying butcher shops. All fees from kosher supervision were to be paid directly to the association, which provided the chief rabbi with an annual salary and an apartment.34 Shortly after his arrival in July 1888, Rabbi Joseph set his sights on reforming the kosher chicken markets. He assigned mashgichim to

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supervise poultry slaughter and ordered shochtim to affix to all kosher chickens a plombe stamped with Rabbi Joseph’s name and title. He also established a rabbinic court to rule on matters of Jewish law. Rabbi Joseph believed that there should be no direct charge for kashrus supervision and that the cost of supervision should be borne by the association, as it was by the kehillah in European communities. However, the trustees of the association insisted that those who benefited from supervision should pay for it. The association decided to impose a one-cent fee for each poultry plombe to help defray the costs of supervision. Rabbi Joseph announced the new poultry regulations in a circular distributed in downtown New York, advising the public “that if you find any butcher’s chicken not so stamped . . . it was not killed under our supervision and we cannot guarantee it to be kosher.”35 Rabbi Joseph’s new poultry regulations ignited immediate opposition. The Sun, one of New York City’s leading daily papers, published an article quoting a “leading member” of a downtown synagogue who compared the plombe fee to an infamous Polish kosher meat tax, the karobka, used by the czarist Russian authorities to fund special police units to enforce anti-Jewish laws. An uptown Anglo-Jewish weekly, the Jewish Messenger, complained that the chief rabbi had not consulted with uptown rabbis before instituting his reforms and asked whether “we should now placidly look on while this sacred soil of America is defiled by money making à la Russia.” The Yiddish socialist weekly, Der Volksadvokat, called for a boycott of butchers who agreed to cooperate with the chief rabbi.36 A group of butchers established the Hebrew Poultry Butchers Association to protest the poultry tax. They were supported by three prominent rabbis involved in kosher supervision prior to Rabbi Joseph’s arrival. The first meeting of the Butchers Association included speeches questioning the reliability of the chief rabbi’s supervision and charging that the poultry tax was merely a way to fund his salary. The meeting concluded with a vote to employ only shochtim approved by one of the three rabbis supporting the Butchers Association. At a second meeting the following week, speakers argued that Rabbi Joseph’s authority extended no further than the eighteen member congregations of the Association of American Orthodox Hebrew Congregations and that the chief rabbi himself was merely a functionary subservient to the association’s lay board. At the close of the second meeting, the Butchers Association passed a resolution declaring that “at this assemblage in the presence of three rabbis, we declare as terefah [nonkosher] all meat sold by the butchers who have made common cause with the charlatans who impose the karobka.”37

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The three rabbis established themselves as a rival rabbinic court, hired their own shochtim and mashgichim, and published warnings concerning the nonkosher status of poultry sold by butchers under the supervision of the chief rabbi. One of the rabbis was named “Chief Rabbi of Congregations of Israel of New York” by an association of twenty congregations of Galician Jews alienated by the selection of Rabbi Joseph, a Lithuanian. Other rabbis in New York also assumed the title of chief rabbi. A historian of the Jacob Joseph affair relates that “[i]n 1893, Rabbi Hayyim Jacob Vidrowitz came to New York from Moscow, gathered a few small Hasidic [congregations] under his control and hung out a shingle which bore the legend: ‘Chief Rabbi of America.’ When asked, ‘Who made you Chief Rabbi?’ he replied with a twinkle in his eye, ‘The sign painter.’ ”38 During this time, Rabbi Joseph also set about reforming the fifteen small slaughterhouses that supplied the city’s kosher beef. He tested cattle shochtim and replaced those who were unqualified. He expanded the number of shochtim, instituted more stringent inspection practices, and required that plombes be affixed to all kosher carcasses. He also promulgated new rules for butchers and issued signs to display in store windows of those who complied, charging $5.50 for each sign. By February 1889, eighty-six slaughterhouses and butchers were under the chief rabbi’s supervision.39 During the fall and winter of 1888 and throughout 1889, critics continued to attack the chief rabbi, accusing him of providing inadequate supervision and being motivated by financial interests. The Butchers Association ran a newspaper ad claiming that it had found the chief rabbi’s plombes on “choked and putrid” chickens. Two slaughterhouses and more than thirty butcher shops opted for the supervision of the rival rabbinic court, which opposed the chief rabbi.40 The Volksadvokat referred to him as the “Chief Charlatan” and called members of the Association of American Orthodox Hebrew Congregations “robbers who live off swindle, and who make the poor penniless” by exacting certification fees.41 To compete with his rivals and counter the charges of financial interest, Rabbi Joseph declared in March that he would no longer charge butchers for supervision. This move exacerbated the precarious financial position of the association, whose member synagogues and individual patrons were increasingly unwilling to cover the organization’s chronic deficits. Revenue was needed to cover Rabbi Joseph’s salary and staff. Accordingly, on the very day that he announced his suspension of fees for supervising butchers, Rabbi Joseph announced plans to charge fees for the supervision of Passover products. At that point, even the weekly magazine American Hebrew, which had been supportive of the chief

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rabbi, accused the association of “using him as a tool for monetary ends.”42 Unable to provide adequate funding to support Rabbi Joseph and his staff, the association worked out an arrangement whereby, in exchange for supervision, a group of butchers agreed to provide $2,500 per year to pay for the chief rabbi’s salary and an additional $2,500 for each mashgiach working under him. The chief rabbi was now, for all practical purposes, directly in the pay of the meat industry. The association became largely inactive, and, without it, Rabbi Joseph was unable to exercise any authority over the meat industry. In 1895, the butchers obtained supervision at a lower price from Rabbi Joseph’s rivals and withdrew their support. According to a contemporary, “[t]he rabbi was left without any income and is in dire straits. . . . He and his whole family are in very serious difficulties. . . .” That year, Rabbi Joseph fell ill, and he remained bedridden from paralysis until his death in 1902 at the age of fifty-nine.43 Similar attempts to centralize kosher meat supervision in the hands of a chief rabbi in other American cities like Chicago and Boston were also brought down by rabbinic rivalry and financial interest.44 A third approach to regulating kosher meat production was industry self-regulation by trade associations. The motivation of the trade associations, however, was not to protect consumers but rather to protect association members from competitors who sold their services and products at lower prices by cutting corners. Moreover, these efforts were typically short lived. For example, in early 1892, several New York City butchers founded the Society for the Sale of Permitted Meat in order to combat fraud. The society’s forty-six members agreed to pay for supervision by a prominent uptown rabbi, and they displayed signs in their stores bearing the name of the society and the supervising rabbi. The society also published the names of butchers who fraudulently sold treyf meat as kosher. These efforts incited conflict among butchers and elicited little public support, and by the end of the year they had faded away.45 Trade associations were behind the worst corruption in the kosher meat industry. The Live Poultry Commission Merchants’ Protective Association and the murder for hire of Bernard Baff, discussed at the beginning of this chapter, are notorious examples. They are by no means unique. In 1913 a group of poultry slaughterhouse owners established the Harlem and Bronx Live Poultry Association to fix prices. Three years later, the association was indicted for antitrust violations, and its managing director pleaded guilty. A subsequent 1920 investigation revealed price-fixing among a number of retail poultry trusts. An organization called the New York Live Poultry Chamber of Commerce operating in the 1920s fixed

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wholesale poultry prices and forced retail dealers to buy only from designated wholesalers. The chamber imposed a one-cent tax on each pound of wholesale poultry sold, which amounted to $10,000 per week. Wholesale dealers who refused to join the chamber and retail dealers who failed to submit to its demands were subjected to supplier boycotts, shochet walkouts, property damage, and beatings. A wholesale dealer testified that when he sold poultry to a retail dealer not assigned to him by the chamber, his right hand had been broken. The muscle behind the chamber came from Arthur “Tootsie” Herbert and his brother Charlie, a pair of Jewish gangsters who ran powerful local unions. Tootsie was business manager for the local International Brotherhood of Chauffeurs, Teamsters, Stablemen, and Helpers of America, which controlled poultry delivery, and Charlie was director of the shochtim’s union, which controlled all of the shochtim in the poultry trade. Despite convictions in a celebrated antitrust prosecution against the chamber in 1929, Tootsie and Charlie continued to ruthlessly extort money from dealers and embezzle union funds until Tootsie was finally sentenced to twenty years in jail in 1936 and Charlie was removed from his leadership post by union officials in 1937.46 A fourth approach to regulating kosher meat production was the establishment of independent communal organizations whose members were laypersons, rabbis, or both. Agudath Israel, a lay organization founded in 1901 primarily as a burial society that included members from all parts of the city, attempted in 1903 to provide centralized supervision of retail butcher shops advertising kosher meat. To butchers who accepted their supervision, the organization proposed to issue signs certifying that the meat they sold was kosher. Mindful of recent history, the organization announced that it would not charge the butchers for supervision but would instead fund its efforts entirely out of its own treasury. Two prominent rabbis who controlled supervision in New York City’s largest slaughterhouses immediately opposed this plan. They objected to a lay organization passing on the kosher status of meat produced under their supervision, and they asserted that signs were unnecessary and unreliable as a means of consumer protection. The organization responded that the rabbis were merely promoting the interests of the slaughterhouse owners, who paid them and who feared that greater vigilance would disrupt sales since many butchers purchased nonkosher meat from them and fraudulently sold it as kosher. The rabbis fired back allegations that, contrary to its public representations, the organization charged butchers forty cents per week for supervision. In November of 1903, at the height of its success, one hundred butchers in the Lower East Side were under

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Agudath Israel’s supervision, but that number steadily declined in the next few years.47 In 1909, three hundred delegates from 222 organizations founded a group called the Kehillah and elected a twenty-five-member executive board. The Kehillah combined the traditional European model of community governance with American-style democracy. Over the next fifteen years, the Kehillah played an important role in many different areas of community governance, including Jewish education, employment, welfare, labor, and crime. As one of its first orders of business, the Kehillah attempted to develop a program to improve kosher meat supervision. The group joined forces with the Union of Orthodox Jewish Congregations of America, popularly known as the Orthodox Union, or OU. The OU had been founded in 1898 by Rabbi Henry Pereira Mendes of Shearith Israel, who served as OU president and was a member of the Kehillah. The OU executive board had periodically considered getting involved in kosher supervision, but it never got past the planning stages. The Kehillah also established a board of rabbis to increase rabbinic involvement in the effort.48 With these partners, the Kehillah proposed a plan to appoint rabbis to supervise retail butchers. Butchers under Kehillah supervision would receive signs to display in their stores and would pay a monthly fee. They would be allowed to sell only meat slaughtered in the New York City area, which would protect local slaughterhouse owners from outside competition. The Kehillah submitted its plans to the large slaughterhouse owners, from whom it sought approval and $25,000 to underwrite the salaries of mashgichim for a year. The Kehillah argued that centralized retail supervision would restore consumer confidence in the kosher meat market and increase sales. The slaughterhouse owners approved of the plan, as did the rabbis who were supervising their operations, all of whom served on the board of rabbis. Kehillah supervision began in November of 1912. Like previous efforts, the Kehillah’s plan to centralize kosher meat supervision failed due to rabbinic rivalry and inadequate funding. Orthodox rabbis criticized the Kehillah’s involvement in kashrus because its president, Dr. Judah Magnes, was a Reform rabbi, and the majority of Kehillah members were Reform Jews. According to these critics, Reform Jews, who rejected kashrus, should have no role in supervising it. Moreover, the slaughterhouses provided only a small fraction of the funds requested, and most of the 128 butchers who accepted the Kehillah’s supervision failed to pay any monthly fees. By the end of 1913, the Kehillah informed the board of rabbis that it would no longer pay the salaries of

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mashgichim. The board of rabbis attempted to establish a new fee structure with slaughterhouses and wholesale poultry merchants for supervision, but both groups rejected the proposal. Unable to cover its expenses, the board of rabbis ceased providing supervision. A subsequent effort by the Kehillah in 1915 to establish centralized supervision in beef and poultry slaughterhouses also failed due to rabbinic rivalry and inadequate funding.49 Revelations emerged in 1916 that the Kehillah had been a partner in the Harlem and Bronx Live Poultry Association. While the district attorney ultimately concluded that the Kehillah had been duped by the association to lend a veneer of legitimacy to its activities, the affair undermined the Kehillah’s credibility.50 As the Kehillah’s leadership increasingly turned its attention during the First World War to issues outside of local communal services, the organization’s activities gradually waned, and it finally disbanded in 1925.51 A fifth approach to regulating kosher meat production was government regulation. Frustrated by the failure of their efforts to establish centralized communal control over kosher meat supervision, the Kehillah and the OU lobbied for legislation to make kosher fraud a criminal offense. In 1915, the New York State Assembly passed the “Kosher Bill,” which made it a misdemeanor to falsely represent meat for sale as kosher with intent to defraud. The New York City mayor assigned the task of enforcing the law to city agencies responsible for policing consumer fraud. In April and May of 1916, municipal authorities apprehended fifty-seven butchers selling treyf meat. Considering the scope of the problem, the efficacy of these efforts is doubtful. In 1915, there were 6,000 butchers in New York City who advertised kosher meat. Of these, 3,600 sold both kosher and nonkosher meat, which increased opportunities for fraud, and an estimated 1,200 advertised kosher but sold only treyf meat. The president of the Kosher Butchers Retail Association asserted publicly in 1910 that 65 percent of the butchers who advertised kosher meat actually sold treyf. Moreover, inspection of meat in retail stores by non-Jewish city inspectors who lacked expertise in kashrus could not uncover fraudulent practices in slaughtering, inspection, and preparation of meat and poultry. City officials appealed to Jewish community leaders for help in enforcing the law, but efforts to organize a communal enforcement agency failed. Similar laws were subsequently passed in other states, where lack of enforcement rendered them largely ineffective.52 The New York State Assembly amended the Kosher Law in 1922 and 1926 to strengthen its provisions. In an effort to improve enforcement, New York City mayor John Hylan in 1923 assigned enforcement to the Department of Markets, which by 1926 had established a special

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“kosher squad.” The New York State attorney general successfully defeated a constitutional challenge to the law, and the Manhattan district attorney worked with the OU to prosecute kosher fraud. While these efforts attracted positive press coverage—one of the Yiddish papers referred to the district attorney as “The Best Chief Rabbi New York Ever Had”— the number of convictions was miniscule compared to the estimated scope of the problem, and fines were little more than a slap on the wrist. In 1925, the Commissioner of Markets estimated that 40 percent of the meat advertised as kosher in the city was treyf. Matters were made worse by official corruption. Investigations in the late 1920s and early 1930s uncovered widespread corruption among New York City Department of Health inspectors, who extorted money from poultry slaughterhouse owners seeking license renewals, and among Department of Markets inspectors, who demanded bribes from retail butchers.53 In 1931, Mayor James Walker appointed a Mayor’s Committee on Kashrut to “ascertain the facts” about kosher fraud in the city and to make recommendations for more effective enforcement of the Kosher Law. The committee’s report praised the Kosher Law for helping to “eliminate a large number of petty merchants who brazenly sold non-kosher stuff and nevertheless kept their windows adorned with large Hebrew letters to the effect that their product was kosher” and for making “[t]he exhortations of rabbis and other pious Jews sound now more convincing, since it is generally known that the State is ready to prosecute all offenders.” Although the report praised the Kosher Law, it lamented the lack of adequate rabbinic supervision necessary to prevent fraud. “Only a comparatively small number of retail butchers are supervised by rabbis,” the report stated. “Many others try to create the appearance of supervision by placing questionable signs in their windows. . . . The chicken markets as well as the retail chicken stores are virtually without any supervision. In other words, there is nothing to indicate whether any fowl was slaughtered according to ritual law. . . . Some of the chicken markets pay a nominal sum to a rabbi who strolls in occasionally to examine the knives of the slaughterers . . . [yet] [e]ven in the branches where there is supervision . . . the supervisor . . . is the employee of the one supervised.” A subsequent 1934 Department of Markets annual report added to this bleak assessment, stating that the six inspectors assigned to kosher fraud were not enough to handle the job, that interagency overlap with the Department of Health, which enforced the sanitary code, resulted in inefficiencies, and that enforcement efforts were complicated by “lack of unanimity amongst the orthodox spiritual leaders.” By 1939, the Department of Markets staff was responsible for inspecting eighteen thousand establish-

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ments in New York City that sold kosher food. The Commissioner of Markets had stated in 1927 that the department could be effective only if it were supported by reliable rabbinic supervision and constant consumer vigilance.54 In an effort to strengthen enforcement of the Kosher Law, the New York State Assembly passed a law in 1934 to establish a Kosher Law Enforcement Bureau with its own budget within the New York State Department of Agriculture. With an initial staff of two (eventually ten) that counted on a rabbinic advisory board, the bureau reported 425 arrests between 1934 and 1939, with a conviction rate of 75 percent. The bureau also issued press releases to publicize the names of dealers convicted of fraud. However, like the New York City Department of Markets, the efforts of the state’s Kosher Law Enforcement Bureau were hampered by rabbinic infighting and lack of resources.55 As Jeremiah Berman opined in his 1940 history of shechitah, “not even the most sanguine will claim that the Kosher Law has brought kashrut to New York. The task of observing the conduct of thousands of butcher shops and delicatessen stores, as well as numerous hotels in the mountain and seaside resorts, is too great for the number of inspectors assigned.” The situation was no better outside of New York. According to Berman, “While Kosher laws are to be found on the statute books of a number of states, these laws are practically in every instance ineffective. In almost every case, no funds are appropriated for their enforcement. It is clear that the passage of kosher laws in itself cannot bring kashrut. Only when the Jews in America develop workable communal instrumentalities for the control of kashrut will the kosher laws become truly efficacious.”56 The federal government’s brief foray into kosher meat regulation—the National Kashruth Administration, established under President Roosevelt’s National Industrial Recovery Act—lasted only a few months in 1935, succumbing to inadequate resources and lack of industry cooperation.57 A sixth approach to regulating kosher meat production was publicprivate partnership. In its 1931 report, the New York City Mayor’s Committee on Kashrut recommended the establishment of an organization consisting of rabbis from throughout the city and lay representatives with a charter from the state to exercise “quasi-public powers in matters pertaining to kashruth supervision.” With encouragement from the mayor, members of the committee established the Kashruth Association of Greater New York in 1932 “to aid in and encourage the observance and enforcement” of the Kosher Law. The Kashruth Association promised to provide the rabbinic support necessary to finally make enforcement of the Kosher Law effective. The bylaws stated that a rabbinical board of

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fifty rabbis appointed by the association would “be supreme in matters pertaining to the application and interpretation of the Jewish dietary laws and shall be the final authority in all matters within its jurisdiction.” The association declared that it would issue its own kosher certification by December and that all private supervision should be abolished. Members of the Mayor’s Kashruth Committee declared in their report that the time was ripe for such an effort since, unlike the Kehillah experiment twenty years earlier, their efforts had created a “harmonious attitude among New York orthodox rabbis on the question of an organized central body for the supervision of Kashruth.”58 Such declarations of rabbinic unity were, however, premature. To begin with, some rabbis objected to the Mayor’s Committee as an unwarranted government intrusion into the internal affairs of the Jewish community. By the middle of 1933, the association had still not begun supervision, and its president resigned “because of the jealousy and hatred which he felt were rampant among the rabbis and which prevented the association from doing an effective job.” Some Orthodox rabbis refused to support the association unless Conservative rabbis were  excluded from kashrus administration, while Conservative rabbis threatened to withdraw support if excluded. The association approached the mayor about passing a law that would require kosher food dealers to be licensed upon certification by the association, for which the association could charge fees. This effort foundered because Jewish community leaders could not agree on a proposal.59 Labor tensions in the poultry industry between the shochtim’s union and the poultry dealers in 1934 gave the Kashruth Association an opportunity to finally begin providing certification. Disagreement over a new contract involved concerns over not only pay but also working conditions—in particular, allegations by the shochtim that the dealers required them to slaughter at too fast a rate and to work for too many hours to ensure the kosher status of the poultry. Eager to avoid a strike by the workers or a lockout by the dealers, Mayor Fiorello La Guardia appointed Judge Otto Rosalsky to mediate. Before rendering his decision, Rosalsky turned to the rabbis of the Kashruth Association for their opinion on how much time a shochet should be afforded to kill a fowl in order to adhere to the laws of kashrus. Based on the association’s response, Rosalsky issued a decision that dealt with not only wages and working conditions but also the integrity of kashrus. The decision stated that the kosher poultry markets should submit to rabbinic supervision provided by the Kashruth Association, that all kosher slaughtered poultry should have a Kashruth Association plombe affixed to it, and that all dealers

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should pay a fee of one cent per fowl to the Kashruth Association to defray the cost of supervision.60 The poultry dealers rejected Rosalsky’s decision, as it imposed higher labor and supervision costs on them, and they set about securing supervision from three rabbis who declared the plombe unnecessary. In response, the Kashruth Association declared a ban on all poultry without its plombe. At a special meeting attended by three hundred rabbis and eight hundred laymen at the Beth Midrash HaGadol, where Chief Rabbi Jacob Joseph had presided forty years earlier, the association stated that any poultry not bearing a plombe from the association “is forbidden to be consumed by Jews” and that any shochet who slaughtered without the association’s supervision or failed to use the plombe “will lose his status of reliability in regard to Kashruth, and as a violator of Jewish Law will henceforth become disqualified to act as a Shochet.” The ban went on to warn that if any rabbi rejected the ban, “his ruling shall become null and void.” At first, the ban was completely ineffective. The shochtim’s union voted to disregard the ban. Seven hundred Bronx butchers refused to handle chickens bearing the association’s plombe. A group of rabbis in Brooklyn produced its own rival plombe. And many rabbis continued to provide private supervision. Even the rabbi of the Beth Midrash HaGadol—who had hosted the ceremony promulgating the ban—continued private supervision at thirty poultry markets on the Lower East Side. He accused the association of “treachery and beguilements” and insisted that he had been coerced into supporting the ban. Finally, Rosalsky convinced the union to change its position and support the ban in exchange for promises by the association that it would grant the union representation within the association and support any future economic demands by the union. The union’s subsequent threat of a strike in support of the Kashruth Association forced the poultry dealers to accept its supervision. In 1935, the association reported that it employed 175 rabbis and 221 mashgichim to supervise 140 poultry markets. Eighty percent of the poultry sold as kosher in New York City bore the association’s plombe, at the rate of 400,000 per week.61 That same year, a Bronx poultry dealer, the S. S. and B. Live Poultry Corporation, sued the association for declaring its poultry treyf. The dealer had contracted with the association for supervision but then decided that the arrangement was too expensive. When the dealer backed out of the arrangement, the association declared his poultry treyf. The dealer’s lawsuit alleged that failure to accept the association’s supervision did not render its products treyf under Jewish law and that the ban constituted

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an unlawful interference with its contractual rights to conduct business with kosher consumers. The dealer sought rescission of the contract, an injunction against the association from further interference, and damages. The court rejected the dealer’s claim and upheld the right of the association to pronounce religious bans on poultry not produced under its supervision.62 While the court in S. S. and B. Live Poultry Corp. v. Kashruth Association refused to interfere in communal regulation of kosher meat production, the court in a subsequent legal challenge rejected the use of state power to enforce it. In 1939, New York State inspectors arrested Joseph Gordon for violating the Kosher Law by selling a chicken as kosher that did not have affixed the Kashruth Association’s plombe. He was convicted and sentenced to pay a fine of $500 or be committed to the city prison for thirty days; in addition, he was to serve in the workhouse for thirty days. Gordon’s conviction rested on the contention that he knowingly violated “orthodox religious requirements” by selling poultry without a plombe. An appellate court overturned the conviction, holding that the prosecution had failed to establish that the association—which the opinion referred to as “the so-called Rabbinate”—possessed the legal authority to decree that poultry slaughtered outside of its supervision and not bearing its plombe were not kosher.63 This ruling, that the state could not enforce the association’s regulations through Kosher Law prosecutions, weakened the association’s authority. According to one contemporary commentator, the Gordon decision “kicked the bottom out of this latest kashrut experiment.”64 In addition, the poultry dealers and butchers circulated stories among their customers that plombes were affixed to poultry without proper supervision and that the whole system was essentially a money-making scheme to enrich the rabbis. Association oversight of New York City kosher poultry dealers soon collapsed. By 1940, according to Berman, “the Kashruth Association plombe is affixed to approximately 8% of the so-called kosher poultry slaughtered in New York City.”65

Why the Old Ways Did Not Work in the New World In the Old World, the kehillah—an autonomous communal organization backed by state power—effectively regulated kosher meat production. In America, this model translated into congregational oversight, which gradually deteriorated in the 1800s. Institutional alternatives—(1) congregational coalitions, (2) a chief rabbi, (3) trade associations, (4) independent communal organizations, (5) government agencies, and (6) public-private

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partnerships—all proved inadequate. From Rabbi Moses Weinberger, writing in 1887, to government reports in the first three decades of the twentieth century, contemporary commentators consistently alleged that kosher fraud was widespread and that attempts to regulate kosher meat production during this period all failed. As legal commentator Jonas Simon wrote in the early 1940s, “the kosher meat business is a gigantic fraud perpetrated on the well-meaning masses of people who pay a good price for kashrut but never get it, a wholesale robbery of the Jewish community.”66 Trade associations and government agencies were unable to clean up kosher meat production. Trade associations had an inherent conflict of interest that produced more fraud and corruption than consumer protection. Industry self-regulation amounted to little more than leaving the fox to guard the kosher chicken coop. Government agencies, for all their commitment to consumer protection, simply lacked adequate resources to do more than scratch the surface. The scale of kosher fraud was simply too large for government alone to regulate. Communal institutions were also not up to the task. According to several leading historians, the American commitment to religious voluntarism and free markets explains the persistent inability to establish centralized communal control over kosher meat production.67 In contrast to the traditional kehillah, Jewish communal authorities in America were not backed by government power, nor did they have a monopoly on religious life.68 In America, as far as the government was concerned, Jews were free to adhere to standards promulgated by communal authorities as much or as little as they wished. And with the mid-nineteenth-century proliferation of rival congregations in the same locality, synagogues lost their ability to enforce standards by the threat of expulsion since dissidents were free to join other congregations or start their own.69 America’s rapidly expanding market economy also allowed kosher meat producers, consumers, and rabbinic supervisors to conduct business in disregard of communal authorities.70 Several additional features of Jewish life in America help explain the failure to establish centralized communal control over the kosher meat industry. Rabbis possessed less authority in America compared to their Old World counterparts. American congregations did not begin to hire rabbis until the 1840s, and when they did, the rabbi was viewed as an employee, his authority entirely subordinate to that of the congregation’s lay leadership.71 Moreover, America’s democratic culture did not promote reverence for authority based on status, and it even allowed overt displays of disrespect, such as the newspaper editorials mocking the authority of

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Chief Rabbi Jacob Joseph.72 The diversity of American Jewry, composed of Jewish immigrants with different cultures and traditions, was another barrier to centralized communal control. This was especially true in New York City, with its tensions between Orthodox, Reform, and Conservative; uptown and downtown; Sephardic and Ashkenazic; Russian, Galician, Hungarian, and Lithuanian; and Hasidic and non-Hasidic, not to mention the hostility between all of these groups and nonreligious socialists and anarchists.73 Finally, the sheer size of New York City Jewry— with its millions of consumers, thousands of butchers, and hundreds of congregations—posed an insurmountable challenge to centralized control over the kosher meat business. America’s liberal, democratic, pluralistic, sprawling free market thus frustrated repeated efforts to establish centralized communal control over kosher meat production—especially in New York City—between 1850 and 1940. One might view this as a problem of wanting to have one’s kugel and eat it too. Liberty and economic opportunity were two leading reasons why Jews immigrated to the United States, and yet they complained about the loss of centralized communal governance that accompanied these features of life in America. For nearly a century, kashrus in America was plagued by anarchy that facilitated widespread fraud and corruption. That began to change only when nostalgia for centralized communal control was replaced by faith in a quintessentially American institution with the potential to provide reliable kosher certification: the private business enterprise operating in a competitive market.

CHAPTER TWO

From Canned Soup to Packaged Nuts The Rise of Industrial Kashrus

I

n 1925 , Howard Johnson opened a small corner drugstore in Wollaston, Massachusetts, where he sold ice cream at a soda fountain. Johnson’s ice cream grew rapidly in popularity and helped to build one of America’s largest and best-known restaurant and hotel chains. By the late 1960s, Howard Johnson’s ice cream was a leading American brand sold in restaurants and grocery stores nationwide. Ingredients such as “superb, deep-dark cocoa imported from Holland” and “real Elberta peaches” (not to mention high buttermilk content) gave Howard Johnson’s ice cream a “luxurious good-old-days goodness.” A little-known rabbi named Harvey Senter gave it kosher certification.1 Harvey Senter, like Howard Johnson, built a nationwide, industryleading business starting with ice cream. Senter grew up in Brooklyn and attended Yeshiva University, where he earned a BA in 1958, rabbinic ordination in 1961, and a PhD in mathematics in 1963. After receiving his doctorate, he became an assistant professor of mathematics at Fairleigh Dickinson University, taught math as an adjunct at Yeshiva University, and volunteered as a congregational rabbi. In his spare time he conducted informal research on kosher foods, and he was especially interested in problems having to do with flavors. He called companies to inquire about their manufacturing processes, and he published his findings in a Yeshiva University student magazine called Guide to Kashrus, for which he was the faculty advisor. Sometime in the late 1960s, a marketing executive from one of the companies he had researched—Howard Johnson’s— contacted him about providing kosher certification for its ice cream. Senter agreed and hired trustworthy individuals to inspect Howard Johnson’s

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ice cream plants in Miami, Baltimore, and Brockton, Massachusetts.2 Howard Johnson’s ice cream thus became the first product certified by Senter, who today heads one of the largest kosher certification agencies in the United States, Kof-K, whose staff of 150 certifies nearly two hundred thousand products manufactured by nine hundred companies worldwide.3 Kosher certification of industrially processed foods by private agencies like Kof-K is reliable. To be sure, problems with the kosher food industry remain. Food companies occasionally mislabel products, and certification agencies sometimes employ questionable standards. Nevertheless, the rise of industrial kashrus has transformed the business and organizational model of kosher certification in ways that have eliminated the widespread dishonesty and corruption that were rampant a century ago in kosher meat production. An important aspect of this transformation is the economics of industrial kashrus—in particular, its sustained growth during the past hundred years. In building Kof-K, Senter learned that, for large companies like Howard Johnson’s, kosher certification was an inexpensive way to market their products to kosher consumers. The level of rabbinic supervision required by Jewish law for the production of foods like ice cream is much lower than that for meat. An initial inspection of the processing plant and periodic follow-up visits are sufficient for industrial certification, in contrast to meat production, which requires paying for the services of a shochet and constant on-site rabbinic supervision of slaughtering and butchering. Moreover, the cost of industrial supervision can be spread across tens or hundreds of thousands of unit sales, and any increase in unit cost is likely to be made up by increased sales to kosher consumers, meaning that the company need not increase the price of the product in most cases. All this makes kosher certification a highly attractive marketing strategy for food companies. In addition, unlike in the case of kosher meat certification, growth in the demand for industrial certification services does not require that more consumers eat kosher or that kosher consumers eat more. It merely requires that kosher consumers purchase more highly processed foods. For example, the supervision required to produce kosher ice cream has increased as ice-cream making has moved from four simple ingredients—milk, cream, sugar, and fruit—to more complex recipes that include industrially manufactured flavors, thickening agents, and preservatives, each of which requires its own certification. Increasingly complex industrial processing of foods over the last century has fueled sustained growth in the demand for kosher certification services.

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There is fierce competition among private certification agencies like Kof-K for lucrative accounts with major national companies like Howard Johnson’s. Food producers are attracted to agencies whose certification will add value to their products. The value of an agency’s certification is based on the agency’s reputation among three target audiences: consumers, food producers, and other agencies. Agencies must develop a reputation among consumers for reliability. In the early years of Kof-K, for example, Senter established a reputation among kosher consumers for competence and trustworthiness by making presentations to Jewish groups throughout the country and answering questions about his views on kashrus issues and his level of personal religious observance. Agencies also have to cultivate a reputation among food producers for expertise and high-quality service. Senter’s knowledge of food technology and food processing and his prompt and responsive service earned him a good reputation in the food industry and enhanced the value of Kof-K certification. In addition, agencies need to maintain a good reputation among other certification agencies with whom they must cooperate and whose disapproval may adversely affect the agency’s reputation among consumers and producers. For example, Kof-K certifies industrially produced flavors used as ingredients in products certified by the Orthodox Union (OU). The OU will allow the use of a Kof-K-certified ingredient in foods certified by the OU only if the OU believes that Kof-K provides reliable certification. Otherwise, the OU might compel its clients to find another source for the ingredient, thus harming Kof-K’s client and jeopardizing Kof-K’s relationship with that client, who might decide to switch to a certification acceptable to the OU. The opinions of influential agencies like the OU also affect the views of consumers who follow the OU’s judgment on kashrus matters. Private kosher certification agencies have developed two strategies to prevent misconduct and mistakes that could damage their reputations and, consequently, reduce the value of their certifications. First, they have developed management controls. Kof-K has multiple levels of management oversight as well as administrative routines that require more than one individual to approve a decision. Increasing use of documentation— initially in the form of paperwork and more recently in the form of digital record keeping—is another component of management oversight. Additionally, many agencies have insulated kashrus standards from financial considerations by vesting the authority to render legal rulings on kashrus standards in a rabbinic council that is independent of the chief administrator in charge of business and operational decisions. At Kof-K, Senter is the final word on business and operational decisions, but

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in matters of kashrus standards he defers to a three-member rabbinic council. Second, agencies have professionalized kosher supervision, transforming it from a part-time task undertaken by congregational rabbis supplementing their incomes to a distinct profession. As industrial food processing becomes more complex, kosher certification requires increasing knowledge of food chemistry and food technology. To meet this challenge, agencies offer formal training programs, conduct continuing education, and publish specialized literature on technical issues aimed at “kashrus professionals.” In addition, as agencies like Kof-K expand to meet the demand for their services, their personnel increasingly specialize and subspecialize in particular areas of kosher supervision. Professionalization has cultivated discipline and technical expertise among agency personnel, which helps deter misconduct and prevent mistakes. The emergence of reliable kosher certification by private agencies is thus the product of three interrelated factors: (1) sustained expansion in the demand for kosher certification of industrially processed foods; (2) agency efforts to establish and maintain a good reputation in order to compete for industrial clients; and (3) investment in management oversight and professional development, which prevent misconduct and mistakes that would harm an agency’s reputation and undermine its competitiveness. To these three factors should be added a shared sense of religious mission. Agency heads, managers, and inspectors are religious Jews who are seeking to promote kashrus observance by ensuring a plentiful supply and variety of kosher-certified foods. Kashrus certification is not only a business. It is also a religious mission. This chapter examines the historical development of these four factors and shows how they transformed kosher certification in America. The chapter begins with background information on the industrial food revolution and a short introduction to some basic principles and practices of industrial kashrus. The chapter then divides the historical development of industrial kashrus into three overlapping periods. First, from the 1920s to the 1970s, the Orthodox Union Kosher Division developed modern marketing techniques to promote kosher certification and created a new business and organizational model. Second, between the late 1960s and the early 1980s, a number of smaller kosher certification agencies emerged as rivals to the OU, thereby increasing competition. Third, beginning in the 1980s and continuing to the present, competition among the leading agencies has led to the institution of management controls and the professionalization of kosher certification to prevent mistakes and deter misconduct. The chapter ends with an analysis of how increas-

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ing management controls and professionalization have enhanced the integrity and credibility of industrial kosher certification.

The Industrial Food Revolution The industrial revolution in late nineteenth-century America had a profound influence on food production. Expanding transportation networks, increasing mechanization of industrial production, and advances in food technology produced an increasing volume and variety of processed and prepared foods sold in a nationwide mass market. By the early twentieth century, leading brands such as Domino sugar, Heinz pickles, Nabisco crackers, and Kellogg’s corn flakes began transforming the nation’s eating habits and attitudes toward food. These market leaders learned that the key to selling their product was advertising and promotion. Early advertising campaigns extolled the health benefits of refined foods like white granulated sugar and the time-saving convenience of prepared foods like breakfast cereal. Brand-name product advertising provided assurances of quality aimed at calming widespread consumer anxiety about the purity of industrially produced food.4 Industrial food marketing was aimed predominantly at women, and it both responded to and fueled their desire to spend less time in the kitchen.5 As one author wrote in 1970, looking back on the previous forty years of increasing consumption of industrial food, “the average housewife’s kitchen has been converted from a steamroom where the housewife slaved to prepare personally every morsel of food that went into her family’s menu, to the pleasant kitchen area where the housewife’s work is made infinitely easier, thanks to prepared foods that come out of cans or a host of other containers.”6 According to another source, “[i]n 1925, the average American housewife made all her food at home. By 1965, seventyfive to ninety percent of the food she prepared had undergone some sort of factory processing.”7 Jewish consumers created a demand for kosher certification of these new industrially processed and prepared foods.

An Introduction to Industrial Kashrus The need for rabbinic supervision of foods produced outside of the home dates back to ancient times. The Talmud includes discussion of numerous rules governing commercial production of foods such as meat, bread, wine, oil, and cheese.8 These rules provide the rudiments of the kashrus standards that govern modern industrial food production. While a comprehensive survey of kashrus is beyond the scope of this book, it will be

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helpful to introduce a few basic principles that provide useful background for the analysis of industrial kashrus that follows.9 The laws of kashrus divide foods and food additives into three general categories. First are foods and food additives that are inherently kosher, such as water, salt, vegetables, fruits, grains, and certain species of fish. Second are foods and food additives that are inherently nonkosher, such as pork, shrimp, and most insects. Third are foods the kosher status of which depends upon their preparation, such as chicken and beef, which require kosher slaughter and salting, as well as more complex prepared foods such as bread, soup, and ice cream. The laws of kashrus thus impose restrictions on both the ingredients and the preparation of food.10 An important category of restrictions on food preparation is prohibited mixtures. Perhaps the most widely known principle of kashrus is the prohibition against mixing meat and milk. For the purposes of this restriction, meat includes all permitted animals, such as beef and fowl (but not fish), while milk includes all dairy products and their derivatives, such as whey and lactose. Foods that are neither meat nor milk (e.g., fruits, vegetables, eggs) constitute a third category known as pareve and may be mixed with either meat or dairy products.11 Another central concern of the laws of kashrus is the transfer of flavors between prohibited foods and permitted foods or between permitted foods that in combination constitute prohibited mixtures. Such transfer may occur when equipment used to cook one food is subsequently used to cook a second food. Thus, cooking equipment used to process foods containing meat may not be subsequently used to process foods containing milk (and vice versa) unless it is specially cleaned. Where equipment is used to cook both meat and milk without such cleaning, this may render any food subsequently cooked with it nonkosher.12 The laws of kashrus also require that certain foods be prepared in part or entirely by observant Jews. For example, an observant Jew must be involved in the preparation of certain foods defined as “important”—foods considered suitable for a special occasion, such as a state dinner (“fit for a king’s table” in the language of Jewish law)—that require cooking to be edible. Canned soup containing meat is an example of such a food. The requirement of Jewish involvement in the preparation of such foods could be satisfied by turning on the heat that cooks the food, adding a key ingredient, or mixing. Another category of food that requires Jewish involvement in its preparation is cheese made with rennet. Aged cheeses such as cheddar, Muenster, and Gouda are made with rennet, which is a complex of enzymes extracted from the stomach of a mammal or, today, sometimes produced microbially. Rennet is added to milk to induce the forma-

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tion of curds, from which cheese is made. Because of concerns about the use of rennet from a nonkosher animal or from a kosher animal that was not properly slaughtered and prepared, the laws of kashrus require that an observant Jew supervise the entire cheese-making process and personally add the rennet.13 Special restrictions apply to grape juice and its derivatives, such as wine and vinegar. In order to be kosher, these products must be produced exclusively by observant Jews. The origin of this rule lies in an ancient rabbinic prohibition against benefiting in any way from items used in pagan worship and a concern that wine produced by non-Jews might have been so used. The prohibition was also aimed at inhibiting social interaction between Jews and non-Jews. So strong is the concern about pagan worship that unsealed kosher wine that is handled by a non-Jew loses its kosher status unless the wine has been previously boiled, which makes it inferior and therefore not fit for use in pagan rituals. Boiling kosher wine therefore renders it suitable for use in kosher food production by non-Jews.14 The laws of kashrus impose special restrictions related to the weeklong holiday of Passover. During this time, Jewish law forbids eating foods containing any one of five major types of grain typically used to make bread (wheat, rye, oats, barley, and spelt), except in specially supervised production of unleavened bread known as matzah. In addition, Ashkenazic Jews have a custom of refraining from eating a number of common quasi grains, including corn, soy, rice, beans, lentils, and peanuts, or their derivatives out of a concern that they could be used to make flour that looks sufficiently like flour from true grains, so that a person might confuse the two and mistakenly consume flour from true grains. During Passover, Jewish law forbids consumption of foods produced on equipment previously used to produce foods forbidden on Passover unless the equipment has been specially cleaned for Passover production. Products suitable for eating on Passover have a certification symbol indicating that they are kosher for Passover.15 An industrial food producer seeking kosher certification for a product submits an application to a kosher certification agency. (Today, agencies provide most industrial kosher certification, although, in some cases, individual rabbis may provide certification.) The application includes an exhaustive list of all product ingredients and their sources. The agency verifies the kosher status of each ingredient. It then conducts an initial inspection of the production facilities and equipment. If necessary, the agency may require changes in ingredient suppliers, modification of production facilities, or cleaning or replacement of equipment. Following approval of the application, the agency makes a detailed contract with

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the producer specifying standards for ingredients, equipment, processing, and documentation. The contract also grants the agency a right to unfettered and unannounced inspection of production facilities.16 Industrial kosher certification requires different levels of scrutiny depending upon the nature of the food and the production process. Kosher cheese and wine require constant rabbinic supervision at certain stages of production. Other foods are not subject to such stringent production requirements and may require less-frequent inspections, ranging from every week to once a year. In such cases, Jewish law permits a kashrus authority to presume compliance with an agreement in the absence of continuous on-site supervision, provided that the agreement allows for unfettered and unannounced verification. Moreover, large-scale industrial food producers standardize inputs and processes in order to improve the efficiency of production, and such standardization further supports the reliability of periodic inspections as a means of verifying ongoing compliance. The frequency of inspection thus varies with the nature of the product, the regularity of production, and the certifying agency’s level of trust in the producer. Industrial certification fees consequently also vary, from as little as $2,000 to more than $100,000 per year.17 There are important differences between industrial kosher certification and the two other primary areas of kosher certification—meat production and food service. To begin with, industrial certification generally requires less-intensive supervision than meat production and food service. In most cases, industrial inspection is periodic. By contrast, kosher meat production requires slaughter and inspection by a shochet and constant supervision from slaughter to final packaging. Food-service operations such as restaurants and caterers also require continuous on-site supervision to check the different ingredients introduced each day into production and to make sure that food-preparation techniques and equipment comport with kashrus requirements. In addition, industrial food is produced at a much faster rate than meat or food-service meals, and the sales volume is much greater. As a result, industrial kosher certification normally requires no markup in price since the cost of certification can be spread across tens or hundreds of thousands of product units and absorbed by increased product sales among kosher consumers.18

A New Business and Organizational Model of Kosher Certification: The Story of OU Kosher, 1924–1972 Rabbi Alexander S. Rosenberg was a handsome man with an aristocratic bearing and a charming manner. His passionate commitment to making

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kosher-certified food available in every supermarket in America earned him a reputation among food-industry executives as the “guru” of kosher marketing, a man to whom one could not say no. He cultivated personal relationships with key executives, providing counseling on family matters even as he coached them on marketing strategy. And they believed in him—“like a Hasid [religious disciple] believes in his rebbe [charismatic rabbi],” according to one biographer.19 Rosenberg directed the OU Kosher Division for more than twenty years, from 1950 until his death in 1972, during which time the OU kosher symbol was placed on many leading brand-name foods with nationwide distribution. Rosenberg built the OU into the dominant kosher certification agency in America, a position that it still holds today. The OU’s involvement in kashrus began several decades before Rosenberg’s tenure. The OU was founded in 1898 by delegates from forty-seven Orthodox congregations in the United States and Canada at a meeting hosted by New York City’s Congregation Shearith Israel. The aim of the new organization was to promote traditional Jewish observance, which the delegates viewed as being undermined by Reform Judaism and assimilation.20 Among the delegates’ concerns was the abandonment of kashrus by Jews in America. Many Reform Jews consciously repudiated kashrus because it set them apart from other Americans. Others abandoned kashrus not on principle but out of indifference or because of the added expense of eating kosher. Some Jews kept kosher homes but did not observe kashrus in public, a practice known as “eating out.”21 Although there is only sparse data, the existing evidence suggests a general decline in kashrus observance in the early twentieth century. Between 1914 and 1924, a time of increasing Jewish population, kosher meat consumption fell by 25 to 30 percent in cities around the country. According to one estimate, in 1936, only 15 percent of American Jews observed kashrus all of the time, while another 20 percent observed some of the laws some of the time. Sociologist Marshall Sklare found that, by the 1950s, less than 10 percent of third-generation American Jews kept kosher.22 Concerned about widespread fraud and corruption in kosher meat production, the OU executive board in 1905 discussed the possibility of providing kosher certification to retail stores, and in 1910 it drew up a list of kashrus standards. That same year, the OU also teamed up with the New York City Kehillah in an effort to provide kosher meat supervision to retail butchers, but the effort collapsed within a year of its inauguration.23 Wary of the difficulties of reforming kosher meat production, the OU shifted its strategy for promoting traditional kashrus observance to certifying industrially prepared foods.

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Jews, like other consumers, were swept up in the industrial food revolution of the late nineteenth and early twentieth centuries. A combination of consumer demand and food-industry marketing fueled sustained growth in the consumption of industrially prepared foods. As early as 1900, food companies targeted Jewish consumers, and by the 1910s, major brands such as Heinz, Coca-Cola, Nabisco, Gold Medal Flour, and Quaker Oats were routinely advertising in the Yiddish press. In 1912, Proctor & Gamble introduced a new vegetable-based shortening called Crisco. Because kashrus does not allow the use of butter in recipes containing meat or in foods to be eaten at the same meal as meat, Jewish cooks traditionally relied on rendered chicken fat, which was often hard to obtain in sufficient quantity. Crisco offered a welcome pareve substitute for chicken fat. “The Hebrew Race has been waiting 4,000 years for Crisco,” proclaimed ads for the new product. Procter & Gamble even published a cookbook, Crisco Recipes for the Jewish Housewife, written in both English and Yiddish.24 Efforts to promote traditional kashrus observance and marketing campaigns for industrially prepared foods complemented each other. In sermons and pamphlets, Jewish community leaders cited scientific studies claiming that the separation of meat and milk enhanced digestion and that the laws of kashrus were “in accordance with the doctrines of modern sanitation and . . . hygiene.” Horowitz Bros. & Margareten, a leading manufacturer of kosher foods, advertised that their products left “nothing to be desired in quality or cleanliness.” These appeals echoed the more general health and food-purity claims made by industrial food producers on behalf of their products.25 Food producers, for their part, appealed to intergenerational continuity in their advertising. For example, one advertising pitch proclaimed: “Mother belonged to the modern school. She used canned tomato soup. Only Campbell’s, of course.” Food companies also promoted their products with free Jewish calendars and booklets related to Jewish ritual life, the most famous of which is the well-known Maxwell House Haggadah, still popular today.26 The Women’s Branch of the OU, founded in 1923, played a leading role in the promotion of traditional kashrus observance through its extensive network of synagogue sisterhood organizations. In addition to citing the health and hygienic benefits of kosher food, the Women’s Branch promoted kashrus observance as a sign of civility and refinement at a time when Orthodox Jews were especially eager to secure a place in the American middle class. Sisterhood cookbooks promoted kosher versions of typical middle-class American recipes such as oatmeal cookies, meatloaf, and macaroni and cheese. Food companies in turn played on this desire

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to use food as evidence of the compatibility of traditional religious observance with a typical middle-class American lifestyle by producing products such as kosher imitation bacon.27 Central to the OU Women’s Branch strategy to promote traditional kashrus observance was a sustained campaign to increase the availability of industrially prepared foods with kosher certification. At the prompting of the Women’s Branch, the OU established the Kosher Certification Service (KCS) in 1924 and appointed Abraham Goldstein, a chemist, to direct it. At the time, companies frequently represented their products as kosher by placing a generic “K” on the label or by describing them as kosher in advertising claims. In some cases, certification was backed by the personal endorsement of a rabbi, who was paid a fee by the company. The OU considered these certifications unreliable because they were compromised by the financial interests of those who granted them.28 A guiding principle of the KCS was that kosher certification should be insulated from any profit motive. The KCS originally charged companies fees for certification that covered only the costs of supervision, not including administrative costs, which were subsidized by the OU. The KCS insisted that kosher certification should be “a not-for-profit public service, totally free of the element of personal gain and private vestment.” It developed a distinctive yet unobtrusive symbol—a small U within an O( ), known as the OU—that could be included on product labels.29 The OU Women’s Branch and Goldstein worked together to promote the services of the KCS. OU Women’s Branch members organized campaigns to pressure food companies to make kosher products, and they made certification easier for companies by defraying the costs of researching the kosher status of ingredients.30 Goldstein met and corresponded with company executives and conducted extensive research on product ingredients. The OU established a rabbinical council to decide matters of kosher law and approve applications for kosher certification. Companies paid supervision fees to the OU, which paid the mashgichim. The Women’s Branch and Goldstein gradually succeeded in convincing manufacturers that increased sales to kosher consumers would more than offset the costs of certification. By the mid-1930s, the KCS had successfully acquired about two dozen clients, a few of which manufactured leading national brands. Administrative costs had grown to the point that the OU was no longer able to cover its operating deficit, and the KCS raised its fees accordingly in order to become financially self-sufficient.31 In the mid-1930s, the KCS was reorganized. Goldstein left the OU and founded a rival service, the Organized for Kashruth Laboratories. The OU rabbinical council merged with the Rabbinical Association of

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Yeshiva—a professional association for graduates of the modern Orthodox Yeshiva University rabbinical school—to form the Rabbinical Council of America (RCA). Administration of OU kosher certification was divided between the OU and the RCA. The OU provided office space, billed clients, and paid the mashgichim. The RCA created a Kashrut Committee that decided matters of kosher law, approved applications for certification, and assigned the mashgichim.32 Under this arrangement, OU kosher certification was beset by problems due to tension between the OU and the RCA, as well as factionalism within the RCA. The OU was a lay-led membership organization for congregations. By contrast, the RCA was a professional association for rabbis. The relationship between the two organizations was never entirely clear. While the OU viewed the RCA as its rabbinic arm, the RCA  considered itself an autonomous partner. As both organizations grew increasingly dependent on income from kosher certification, the RCA waged a constant, frustratingly unsuccessful effort to obtain a larger share of the money. Moreover, within the RCA, there was a growing divide between reformers, who believed that OU certification should replace certification by individual rabbis, and defenders of the status quo, who were unwilling to relinquish their lucrative private certifications. When two prominent members of the RCA Kashrut Committee refused to submit their private certification activities to RCA oversight, they were expelled from the organization and accused of using their OU affiliation to obtain private accounts without RCA approval and collect fees directly from companies.33 To address these problems, the OU and the RCA created a Joint Kashrus Commission in 1948 to provide more coordinated oversight of OU kosher certification. In 1950, the OU appointed Rabbi Alexander Rosenberg to a newly created position of rabbinic administrator in the renamed OU Kosher Division. Rosenberg had served as a founding member of the RCA’s Executive Committee and Kashrut Committee, and he was a leading proponent of OU kosher certification as a replacement for certification by individual rabbis. Rosenberg’s appointment as rabbinic administrator centralized management of kosher certification within the OU and put a zealous reformer in charge.34 Under Rosenberg’s leadership, the OU experienced sustained and dramatic expansion of its certification services. In 1945, the OU employed 40 kosher supervisors to certify 184 products for 37 companies. By 1954, these numbers had increased to 78 supervisors certifying 300 products in 138 plants. In 1961, 585 supervisors certified 1,830 products for 359 companies. And by 1970, near the end of Rosenberg’s tenure, the OU

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employed more than 750 supervisors to certify in excess of 2,500 products for 475 companies.35 Rosenberg believed passionately in the importance of making kosher food widely and easily available. At the end of World War II, he had been attached to the US Army in Germany, where he successfully advocated for and established kosher meat slaughter for Jewish survivors in displacedpersons camps. Rosenberg’s ambition was rooted in his religious faith. In the words of Rabbi Berel Wein, his deputy and then successor at the OU, Rosenberg “was always working for God . . . he was working for the Jewish people.”36 Rosenberg’s success in promoting kosher certification derived not merely from his religious conviction but also from his understanding of food marketing. He impressed upon company executives that low unit cost and increased sales made kosher certification a bargain compared to other marketing strategies. He further explained to them that kosher consumers are a small but highly influential demographic because they are concentrated disproportionately in major metropolitan markets. By increasing a company’s market share in those major markets, the company’s products would achieve better positioning on store shelves, where all consumers, not just kosher consumers, would be more likely to see and buy them. A marketing manager at Duncan Hines recalls that Rosenberg taught him that “the whole grocery business depends upon shelf space.” As a result of OU certification, according to the manager, sales to kosher consumers of the company’s cake mix in key urban markets increased, leading to more prominent placement on grocery store shelves, so that sales among ordinary consumers also rose dramatically—40 percent in two months.37 Rosenberg targeted large companies with national distribution. As Wein recalls, Rosenberg explained to him that “if you got the major food companies in America to [obtain certification for their products], then you would have kashrus in America. If you got the little guy to do it, the haymishe [regular] guy, that would never do it because he did not have the capital; he didn’t have the resources; he didn’t have the plan. He couldn’t do it on a mass basis.”38 The first company that Rosenberg approached was Proctor & Gamble, and he convinced the company that it should have OU certification for Crisco. Rosenberg went on to acquire accounts with industry leaders such as Best Foods, Colgate, Palmolive, Lever Brothers, and Empire Poultry.39 Rosenberg also employed a rabbinic style with company executives. At times he could be pastoral. According to Wein’s account, Rosenberg developed a personal relationship with his counterpart at Proctor &

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Gamble that led to more business. Rosenberg “cultivated him. He would call him at least once a week. They would discuss things. The man confided in him. He helped him in his marriage. He gave him advice. He became his guru. And the vice president said, ‘Maybe we have other products that could have the OU.’ And Proctor & Gamble developed into an enormous field for kosher products.” At other times, Rosenberg employed a more formal rabbinic manner, adopting the bearing of a respected sage. Wein reports that he never saw Rosenberg take off his homburg hat. At a meeting with Proctor & Gamble executives at the company’s corporate headquarters in Cincinnati, a secretary took Rosenberg’s overcoat and asked him whether she could take his hat as well. Rosenberg replied, “You could have everything my dear, but not my hat.” Wein recalls that Rosenberg “never took off his hat. And it gave him an advantage over everybody else in the room. I didn’t figure it out until later, but he’s sitting in his crown, and the other people are already not as aristocratic or powerful as he is.”40 Rosenberg successfully marketed OU certification to consumers and major food companies by making OU certification a leading brand in its own right. By the mid-1950s, the OU was distributing each year more than one hundred thousand free copies of its Kashruth Directory through synagogues and other community organizations. In talking to food companies, he touted the OU’s reputation among kosher consumers as maintaining “the highest Halachic [Jewish law] standards” and as the only kosher certification “free of private interest.” A 1955 report to the OU leadership attributed the acquisition of 113 new product certifications to “the universal recognition that the , as the identification of authoritative, communally responsible, not-for-profit Kashruth supervision, performs an indispensible function—one which is not and cannot be performed by any other form of activity in this field.”41 According to the OU, private competitors, even distinguished rabbis, simply could not be trusted. As Wein explains, “[t]he abysmally low salaries paid to American rabbis of the time forced many otherwise great and honorable people into positions of silence and compromise in the field of kashrut supervision.”42 Rosenberg viewed OU expansion and eventual dominance of kosher certification as central to its effectiveness in raising standards and providing reliable certification. He believed that the OU had more expertise and integrity than individual local rabbis who were in the pay of food companies.43 At the same time, Rosenberg was aware that many of these rabbis were RCA members who presided over OU-affiliated synagogues and depended on income from certification to supplement inadequate salaries. So Rosenberg cut deals with them. He told them that if they handed

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over all of their clients to the OU, the OU would pay them to continue providing supervision to those clients. Because of its reputation, the OU could afford to charge higher fees, thereby allowing it to pay the local rabbis more and still cover its administrative costs.44 With the OU in charge of an account, it was able to impose its higher standards on local certifications.45 In cases where individual rabbis refused to hand over their clients, the OU approached companies directly and suggested that they switch to OU supervision. The OU explained to companies that it offered a national reputation for high standards that was more widely known and respected among kosher consumers than the individual rabbi currently providing supervision.46 In addition to marketing, Rosenberg also appreciated the importance of supply chains. His strategy for OU dominance of kosher certification included controlling the certification of widely used basic ingredients. For example, recalls Wein, “Rabbi Rosenberg, in his genius, controlled all the basic factories. If you wanted to buy [kosher-certified] glycerin in America, you had to buy it from an OU plant. And without glycerin, you can’t make shortening. So all shortenings are OU shortenings.”47 The OU exerted influence from the other end of the supply chain as well by certifying a wide array of finished products. If the OU were to reject the certification of a particular ingredient that went into a finished product certified by the OU, the manufacturer of the finished product would have to change suppliers or the ingredient supplier would have to switch certifications. In this way, the OU used supply chain influence to impose its kashrus standards on rabbis who were certifying ingredients used in finished products certified by the OU or to encourage ingredient manufacturers to switch to OU certification. The OU’s growing market power also made individual rabbis reluctant to openly criticize the OU.48 Although Rosenberg sought to dominate kosher certification, he did not wish to monopolize it. Wein recalls that “in a world where everybody defends their turf, where nobody is willing to admit that the other person somehow has a right even to be in the business, he was above all of that. . . . He wasn’t out to have every heksher [kosher certification] in America. He wanted the other guy to live also.” At the same time, Rosenberg knew “that all of them were dependent on him, were dependent on the OU—they couldn’t manufacture anything without it.”49 In the course of his passionate campaign to make kosher food widely available and his shrewd efforts to establish OU dominance of kosher certification, Rosenberg fell short of the OU’s aspirations to be “free of private interest.” To be sure, the OU did much to insulate kosher certification from private financial interest. In its first decade of operation,

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under Goldstein, KCS fees did not cover the full cost of certification. The OU, in effect, subsidized kosher certification. The increase in fees just prior to Rosenberg’s tenure allowed the OU Kosher Division to break even. Fees, in most cases, were paid directly to the OU, which then paid staff and local mashgichim. No one has ever suggested that Rosenberg or any of his OU staff made more than a normal salary for their work. Indeed, Rosenberg was particularly strict about prohibiting staff and mashgichim from accepting gifts from companies that the OU certified in order to avoid even the appearance of a financial interest in supervision.50 While it may be true that the OU insulated kosher certification from private financial interest, kashrus policy under Rosenberg was increasingly influenced by a desire to make enough money to cross-subsidize less financially viable areas of kosher certification and to build a growing patronage system. Rosenberg provided unnecessary OU certification for nonfood items such as laundry detergent. Wein once questioned him about this practice. Rosenberg explained that the fees from these certifications allowed the OU to provide certification for poultry and matzah. Wein recalls the conversation that ensued: I said, “What do you mean?” He said, “Listen Empire. . . .” He is the one who set up Empire as the kosher chicken producer. And without Empire there wouldn’t be chickens in America. So he said, “We have a staff there. . . .” And when I was there we had a staff of over 35 people. He said, “It is impossible for [the company] to pay the 35 people all by themselves because they are running a profit-making business. So it is not only that we don’t get paid from them, we have to subsidize them. How can we subsidize them? We never have any money.” He said, “Proctor & Gamble subsidizes them. When we get money from Proctor & Gamble or Palmolive on all the soaps and things, it costs us very little to have any sort of certification there. The money that we get from there, we’re able to see to it that there should be kosher chickens in America.” . . . And the same thing with matzah . . . you have to put in a lot of mashgichim in a matzah factory. You have to watch every place on the line to make sure that it doesn’t . . . take longer than the 18 minutes. And the matzah factory can’t afford that. So therefore he put in people, and it was subsidized on the basis of the fact that they were able to have the money from other certifications that didn’t require that kind of supervision.51

Wein also recalls that Rosenberg employed unnecessary mashgichim in order to give jobs to Jews who needed work: We had a lot of mashgichim that worked for us. A lot of kosher supervisors. And when I was there, there were over 750. . . . But we had a number of people that were—what shall I say—superfluous. In a world where everybody is downsized and where companies are efficient, it was a little less than

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efficient. Like, we had three guys watching them make Tide soap. Now there is nothing nonkosher in Tide soap. . . . Nobody eats Tide soap. . . . There were three of them working there. But all of them were Holocaust survivors. And he convinced Proctor & Gamble that Tide soap requires stringent supervision. . . . And they believed in him like a rebbe. If Rosenberg said it, then it was straight from heaven.52

For Rosenberg, providing a sufficient supply of essential kosher foods such as poultry and matzah and supporting Holocaust survivors justified convincing companies to pay for unnecessary certification and supervision. From Wein’s perspective, these activities were part of Rosenberg’s “genius”—his ability to see “the long picture, the great picture, not just the short item or one thing that was involved” in a particular decision of kashrus policy.53 Be that as it may, these stories reveal that, while the OU may have insulated its kosher certification from individual financial considerations, conflicts of interest compromised the integrity of its dealings with clients and its representations to consumers.54 Rosenberg’s expansion strategy also undermined the OU’s aspiration to maintain “the highest Halachic standards.” On the one hand, the OU Kosher Division under Rosenberg submitted major questions of kashrus policy to the OU-RCA Joint Kashruth Commission. The Kosher Division also retained the services of a chemist to consult on complex matters of food chemistry and technology.55 On the other hand, OU kosher supervision was carried out in the field not by OU professional staff but by local rabbis under contract with the OU. With a full-time staff consisting only of Rosenberg, a deputy director, two rabbinic assistants, and two secretaries, there was limited capacity for oversight of rabbis in the field.56 Rosenberg reportedly told local rabbis when he hired them: “One of the first rules is: don’t call me. If I assign you, I don’t want to be bothered. That is why I picked you.”57 Nor was there any formal training. According to one observer, many of the local Orthodox rabbis working for the OU: could barely read a siddur [Hebrew prayer book], let alone be involved in making kashrus decisions. Forget about professionally trained. They had no gravitas in halacha [Jewish law]. And their level of personal religiosity oftentimes was somewhat wanting. . . . [The OU central office] said to the local rabbi sitting in Wichita, “Here you’re a member of the Orthodox Union, you’re an Orthodox rabbi, right? And you might have a mechitza [partition separating men and women during prayer] which you could barely trip over, but you are the Orthodox rabbi in town—here’s paperwork, you take care of this company. Make sure there’s no pig.” That was it. I’m exaggerating a little bit because Rabbi Rosenberg, who was the head of the OU, was a hell of a guy, and he knew what he was doing, but he couldn’t do everything.58

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While these deals with local rabbis established the OU as a national operation, they left supervision in the hands of local rabbis with little oversight and whose standards were not the “highest Halachic standards,” to which the OU aspired.59 The Union of Orthodox Rabbis of the United States and Canada, also known as Agudas Harabonim (Association of Rabbis) openly criticized the OU’s kashrus standards. Agudas Harabonim was founded in 1902 in New York City by downtown rabbis dedicated to perpetuating a European model of rabbinic leadership focused on traditional yeshiva (Talmudic seminary) study, which extolled expertise in Jewish law. Agudas rabbis were skeptical of efforts by the OU—which was dominated by uptown rabbis—to fashion a more “modern” brand of Orthodox Judaism that encouraged its rabbis to give sermons in English, to provide pastoral services, and to promote better decorum during worship, consistent with the aspirations of their congregants to combine American middle-class sensibility with Jewish tradition. Older Agudas rabbis from Europe viewed the modern American-trained rabbi as “not sufficiently learned talmudically. He was too modern and tended to veer from tradition. He was a social worker and not a rav [a rabbi learned in Talmud and Jewish law].” “Leave the responsibility for kashruth supervision to the genuine rabbi,” declared Agudas Harabonim’s president in the mid-1950s, casting aspersions on the qualifications of RCA rabbis working for the OU.60 In the absence of a highly trained staff and a robust system of centralized oversight, Rosenberg relied heavily on personal trust. According to Wein, Rosenberg explained that “we give the heksher [kosher certification] only because we trust the person. If you cannot trust the person in these types of businesses—you can put in 100 mashgichim, [and] they’ll cheat you anyway.” Wein recalls that Rosenberg “told me many times that Proctor & Gamble is Proctor & Gamble because Proctor & Gamble is an honest company. It is a moral company. They train their employees to be honest and moral. And when it goes wrong, they admit it. And therefore you can trust them in kashrus too.”61 Although higher standards and better oversight in the OU Kosher Division would have to wait for administrative reforms in the 1980s and 1990s, the OU during its founding years and Rosenberg’s subsequent tenure made significant contributions to the institutionalization and professionalization of kosher certification. The OU successfully insulated kosher certification from private financial interest and established the rudiments of management oversight to prevent mistakes and misconduct. It was administered by a full-time professional staff advised by disinterested rabbinic experts and food chemists. The professional staff

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answered to an OU oversight commission. In addition, the OU established centralized administration of kosher certification. The OU KCS founders and Rosenberg established a new business and organizational model for kosher certification—the independent private kosher certification agency—and, in the process, they transformed kosher certification in America.

The Rise of Brand Competition in Kosher Certification: Kof-K, OK, Star-K, and the Chicago Rabbinical Council, 1968–1980 Although the OU increasingly dominated the emerging market for industrial kosher certification during Rosenberg’s tenure, it did not entirely eliminate the old system of certification by individual rabbis and local communal organizations. In the late 1960s and early 1970s, a number of individual rabbis and communal organizations used successful marketing, high standards of professionalism, and effective administration to develop rival kosher certification agencies. These agencies were influenced by the OU’s example, and they, in turn, influenced the subsequent development of the OU and each other. Starting out in the late 1960s, Harvey Senter lacked the name recognition of the well-established OU Kosher Division or the prominent rabbis of the day who certified leading national brands. Yet Senter quickly built a reputation for technical expertise, customer service, and personal integrity. Like both Goldstein and Rosenberg before him, Senter believed that industrial kosher certification required not merely rabbinic training but also an understanding of industrial food processing and technology, and, from the very beginning, clients were impressed by Senter’s technical expertise. Senter also cultivated a reputation for prompt and responsive service. Companies want a quick turnaround when they ask questions or seek information, explains Senter, “and this is something that we feel we specialize in—we have a reputation for not cutting any corners . . . we do things the proper way . . . but we’re also mindful of the necessity of doing it with reasonable speed.” And like Rosenberg, Senter focused not only on food chemistry but also on personal chemistry. Clients liked his warm personal style. They felt that “we like the way this guy talks, it seems like we’re clicking here,” recalls Senter.62 The value of Senter’s brand depended not only on his reputation among food-industry executives but also on his reputation among kosher consumers. An unknown, Senter set about establishing a reputation among kosher consumers as a trustworthy person. He traveled at first in the New York metro area and eventually throughout the country, making

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presentations on kashrus to Jewish groups. He answered questions about his views on Jewish law matters, his certification practices, and his level of personal religious observance and that of his staff in order to assure audiences of his trustworthiness. Senter recalls being “absolutely forthright and candid” when confronted with questions about his own level of religious observance: And one person—I’ll never forget—the person called me up, and he issued seventy-three different apologies before he finally got to his question. He said, “Please don’t feel like I’m in any way insulting you, but does your wife cover her hair [in accordance with Jewish law]?” Now, my attitude was, I said to him right on the phone, “Please. There’s no need to apologize. If you want to use a product with my hashgocha [kosher supervision], I have to be responsive to any question you want to ask. You want to ask me where I daven [pray], you don’t have to apologize. That’s your absolute right.” I’m asking people to accept me as an eid ne’eman [a trustworthy witness, i.e., a reliable source of information about the kosher status of food]. They want to know what type of a person I am so they can make an intelligent decision as to whether or not they want to rely on me. I really feel I have no right to say to someone, “that’s not your business.” . . . So I try to convey that attitude. . . . I want to make it the hallmark of what I do—that at all costs, we’re going to give an honest answer.63

Senter attributes his agency’s reputation for reliability to this type of transparency: “I think this held me in very good stead. I think it was very rewarding. People really appreciated the candidness and the forthrightness.”64 When he received calls from consumers inquiring about the mashgichim he hired to supervise particular products, he would answer them and provide contact information for the caller to follow up directly with the mashgiach. When companies questioned his refusal to accept a certain ingredient, he offered them an explanation. “My attitude was total, total disclosure,” explains Senter, who believes that this distinguished him from other kosher certifiers and gave him a competitive advantage.65 Rosenberg emphasized the OU’s image as a “communally responsible notfor-profit” organization in branding its kosher certification services. Senter, who runs a for-profit business, has successfully branded his certification services by emphasizing personal trustworthiness. According to Senter, “Kashrus is based on ne’emunus,” the Hebrew term for “trustworthiness,” which, in Jewish law, rests heavily on an individual’s personal level of religious observance.66 In the early 1970s, one of Senter’s industrial clients suggested that he adopt an identifiable symbol for use on the products he certified rather than a generic “K.” His wife suggested a K for “kosher” inside the He-

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brew letter kof, the first letter in the Hebrew word kasher, meaning “kosher” ( ). From that point on, Senter’s agency was known by its trademark Kof-K. Throughout the 1970s, Senter’s business expanded, and by 1980 he was certifying products for more than one hundred companies.67 Rabbi Berel Levy was in his midforties working as a Jewish educator when he decided to indulge his long-standing interest in kashrus. He was a devout follower of the Lubavitcher Rebbe, Menachem Mendel Schneerson (1902–1994), a charismatic figure who led the Chabad-Lubavitch Hasidic sect. In 1965, Levy purchased several large kosher certification accounts from an elderly rabbi looking to retire. Levy’s first clients were large national companies, including Domino and Maxwell House. In 1968, Levy purchased the accounts and trademark of the Organized for Kashruth (OK) Laboratories, adding to his client base thirteen national brands such as Sealtest, Pillsbury, and Kraft. OK Laboratories had been established in 1935 by OU KCS founder Abraham Goldstein, who provided laboratory analysis of industrial food ingredients to verify their kosher status. Goldstein published a nationally distributed Kashruth Directory that listed kosher products certified by OK and detailed his findings.68 Levy quickly established a reputation for technical expertise, customer service, and high standards. He studied food chemistry and worked to create “an efficient kosher organization,” recalls his wife, Thelma. Levy sought to distinguish his certification services from the competition based on his diligence in verifying the kosher status of ingredients. “That’s the backbone, and that makes us unique from all the other kashrus certifications,” explains his son, Rabbi Don Yoel Levy. “My father was a pioneer in kashrus in that he was the first one who insisted on going back to the source of any ingredient.” “Until that time, no one had ever bothered traveling to check ingredients or products coming from overseas.” “He was the first one to visit the Far East—Malaysia and Indonesia, Singapore, Korea, Japan; he was the first one to visit China for kosher things since he always went to see the source of everything.” On such trips, Levy sometimes discovered problems that other agencies had missed. For example, he found that containers used to ship vegetable oils accepted by other kosher certification agencies had previously been used to ship nonkosher substances, rendering the oils nonkosher.69 Both Kof-K and OK began with individual rabbis who, through careful branding, expanded their business and built successful kosher certification agencies. Other agencies originated in communal organizations. Avrom Pollak arrived in Baltimore in 1976 as a postdoctoral fellow in molecular biology at the National Cancer Institute. He joined a group of

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young professionals who volunteered their time to reinvigorate the Orthodox Jewish Council—a local organization founded in 1947 to perform a number of community services, including coordinating kosher supervision by local rabbis. In practice, however, kosher supervision was carried out by individual rabbis under contracts with local food-service establishments. By the late 1950s, the council had virtually ceased to play any role in kosher certification. Ten years later, a group of young laymen, many of whom settled in Baltimore after completing their studies at the nearby Ner Israel Rabbinical College, revived the council in order to provide higher standards of kashrus in the community. The supervision provided by the council was undertaken by volunteers, who were headed up by a local rabbi with a national reputation as a leading scholar of Jewish law, Rabbi Moshe Heinemann. The council held fundraising dinners, sold ads in journals, and collected a one-dollar seat tax added to the ticket price for synagogue admission during major Jewish holidays. Within a year or two of his arrival, Pollak joined the board of the council, and two years later was elected its president. The council’s business grew steadily among local food-service establishments in the expanding Baltimore Orthodox community. Local rabbinic opposition also grew steadily, as the council’s young lay leadership took control of what had formerly been an exclusively rabbinic domain. As rabbinic opponents made it harder for the organization to hold dinners, sell journal ads, and collect seat taxes, the council developed a new business strategy to support its work—it entered the lucrative field of industrial kosher certification.70 The council registered its trademark, a K inside a star ( ), and set up an office in a classroom of a suburban Baltimore Orthodox Synagogue with a full-time rabbi, a part-time executive director, and a part-time secretary. With a biochemist as its president and a leading rabbinic scholar as its kashrus authority, Star-K quickly established a reputation for expertise in food chemistry and Jewish law. It emphasized consumer services by establishing a kosher hotline to field questions on kashrus and publishing a quarterly magazine. Star-K actively marketed its services at major food-industry trade shows. By 1980 the fledgling Star-K had just begun to break into industrial kosher certification with a handful of clients.71 In the late 1970s, the Chicago Rabbinical Council (CRC) was also beginning to develop a national presence. Founded in the 1930s by alumni of the Hebrew Theological College to coordinate rabbinic activities and keep Jewish records, the CRC began its kashrus work when it was asked in the early 1940s to certify milk for Passover. In the 1950s, ’60s, and ’70s, its members provided kosher certification for local food-service es-

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tablishments and food manufacturers in the Chicago area with regional markets. The CRC offered industrial clients personal service from a local organization with lower fees than those charged by the OU. It parlayed this into a reputation for being “an agency that would give them the personal touch—the small-town touch, we call it—but still be recognized throughout the world,” explains Rabbi Sholem Fishbane, the current CRC rabbinic administrator. The CRC also emphasized customer service in the form of transparency, consistent standards, and quick response to clients’ concerns. In addition, the CRC built up a reputation among other kosher certification agencies by organizing a trade association, the Association of Communal Kashrus Organizations (ACKO), in 1985. In 1980, however, the CRC was still a relatively small operation, with fifty-two industrial clients and a staff consisting of a part-time director, a secretary, and forty-four mashgichim.72

Developing Management Controls and Raising Professional Standards: Kosher Certification Agencies, 1980–Present Following his death in 1972, Rosenberg was immediately succeeded at the OU by Rabbi Berel Wein, who served as director of the OU Kosher Division from 1972 to 1977, and then by Rabbi Yacov Lipschutz, who served from 1977 to 1980. Both men had worked under Rosenberg, and neither instituted any notable changes.73 During this time, Kof-K, OK, Star-K, and the CRC were marketing themselves as alternatives to the OU in the national market for industrial kosher certification. They branded themselves as offering greater transparency, higher standards, and better customer service. Increasingly, the OU felt these smaller rivals “nipping at its heels.”74 It brought in a new director from outside the organization to institute change. In 1980, the OU leadership appointed thirty-two-year-old Rabbi Menachem Genack to serve as rabbinic administrator of the Kosher Division. Genack had been a leading student of Rabbi Joseph B. Soloveitchik, a preeminent rabbinic scholar within modern Orthodoxy, and had gotten his start in kosher certification working for Rabbi Harvey Senter at KofK in the 1970s. He thus came to the OU with widely respected scholarly credentials and practical experience. Whereas Rosenberg had aristocratic charm, Genack’s personal style is unassuming and informal. Rosenberg is remembered as a forceful prophet of kashrus endowed with marketing genius. By contrast, Genack is admired as a talented rabbinic scholar with a deep appreciation for the nuts and bolts of organization and management. In addition to attending to business development, Genack

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has built a robust institutional infrastructure to keep pace with the competition. In the competitive market for industrial kosher supervision, business development depends upon an agency’s brand value, which is based on its reputation for reliability. This has led Genack and his counterparts at other agencies to invest in management controls and professional training in order to reduce misconduct and mistakes and thereby to strengthen their reputations for reliability. These improvements are motivated by both a desire to maintain brand value and a shared religious commitment to kashrus. Management oversight and professional training require money, which agencies have obtained in a steadily growing market for kosher certification over the past thirty years. Figure 1 charts the growth in number of companies with kosher-certified products since 1977, and Figure 2 shows the growth in the number of retail products that are kosher certified. These figures are based on studies conducted by leading kosher marketing analyst Menachem Lubinsky.75 A number of factors have contributed to dramatic and sustained growth in the market for kosher certification since 1980. First, growing consumer demand for kosher food has encouraged an increasing number of companies to obtain certification. Surprisingly, most of this demand has come from consumers who are not religious Jews. As ethnic foods became increasingly popular among Americans during the 1960s, Kosher food manufacturers promoted their products to the general public with advertising

12,000 10,650 9,200

Number of companies

10,000

9,850

8,600 7,500

8,000 5,300

6,000 4,000

8,100

2,850

2,000 0

Figure 1

1977

1988

1994

1996

1998

2000

2003

Number of companies with kosher-certified products.

Data used by permission from Lubicom.

2009

118,000

160,000

45,000

41,000

36,000

90,000

11 20 09 20 05 20 02 20 00 20 98 19 97 19 96 19 95 19 94 19 93 19 92 19 91 19 90

89

88

77

19

Figure 2

31,000

1,750

0

26,000

20,500

19

20,000

25,000

19,000

19

40,000

22,000

18,000

60,000

33,000

80,000

60,000

100,000

75,000

120,000

19

Number of products

140,000

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135,000

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Number of retail products that are kosher certified.

Data used by permission from Lubicom.

slogans like “We answer to a higher authority” for Hebrew National kosher hot dogs and “You don’t have to be Jewish to love Levy’s” for Levy’s kosher rye bread.76 Today, most kosher consumers—more than 85 percent—choose kosher-certified foods for reasons unrelated to Jewish religious observance, such as health, food safety, taste, vegetarianism, and lactose intolerance or to satisfy non-Jewish religious requirements such as halal (dietary restrictions prescribed by Islamic law).77 Food manufacturers who produce products without kosher certification risk losing access to the significant kosher consumer market.78 Second, increasing industrialization of food production has boosted demand for kosher certification. In some cases, products that did not traditionally require certification are now produced in ways that necessitate it. For example, butter was a food traditionally considered kosher without certification since there was no kosher concern about the process of churning fresh dairy cream. Now, however, some butter is produced from whey cream, which is recovered from cheese production that uses nonkosher rennet to set the cheese, thus rendering the butter nonkosher. As a result, butter producers now obtain kosher certification to reassure consumers that their butter is not made from whey cream derived from nonkosher cheese production. Moreover, foods are increasingly produced using complex processing techniques and multiple additives, all of which require additional certification services. The 135,000 kosher-certified retail products require certification of more than a million ingredients, including flavors, emulsifiers, and preservatives.79

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Third, the dynamics of industrial food supply chains have fueled greater demand for certification services. As more food companies go kosher, ingredient suppliers feel increasing pressure to go kosher as well in order to avoid losing business. Globalization of supply chains has magnified these dynamics. Food ingredients now come from a vast and growing international supply network, and kosher certification requires initial inspection and ongoing supervision of suppliers around the world. In addition, advances in shipping have enabled companies to purchase ingredients in smaller quantities more frequently, thereby avoiding the costs of maintaining large inventories that tie up capital. More frequent purchase of ingredients requires more frequent inspection to verify their kosher status. Ingredient supervision is the largest part of any certification agency’s work, and globalization and advances in shipping have greatly expanded the demand for it.80 Fourth, competition among supermarkets for kosher consumers has increased demand for kosher certification of store-brand, or “privatelabel,” products. Private-label products are produced for stores by brandname manufacturers seeking to utilize their excess plant capacity or by manufacturers who specialize in private-label production, and they represent one of the fastest-growing sectors of the food industry.81 Larger, more established agencies have had a competitive advantage in harnessing these market trends to increase their business. Their extensive client bases and well-known reputations produce a steady stream of referrals.82 The OU, OK, and CRC all insist that they do not actively solicit new clients but that companies approach them based on referrals by existing clients or knowledge of the agency’s reputation as a market leader in kosher certification.83 In addition, existing clients seek certification for new products. Agencies with relatively more and larger clients benefit most from these sources of growth.84 The increasing chemical and technological complexity of food processing also advantages larger, more established agencies. Extensive databases of information make it easier for larger agencies to track down the origins and kosher status of the chemical additives and flavorings that make up many food products. The OU maintains a database that tracks more than 1.5 million ingredients used in the foods it certifies.85 OK has a similar database with more than half a million entries.86 Also, large agency staff generally have more expertise and experience in inspecting complicated production equipment.87 Finally, large agencies can more easily afford to finance supervision in faraway places around the globe. In the market for industrial kosher certification, the big get bigger. As the largest and oldest certification agency, the OU has dominated the growing market for industrial kosher supervision. In addition to the

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factors already discussed, the OU has increased its business by acquiring smaller, regional certification agencies, some of which had an extensive regional client base, such as the Kosher Overseers Association of America (KOAOA) of Los Angeles, with 649 clients, and Western Kosher of Winnipeg, Canada, with 125 clients.88 The OU’s business has grown dramatically under Genack. In 1980, the OU had 500 clients. That number had more than doubled by 1990, when the OU had 1,300 clients. In 2000, the number rose to 2,200 clients, with the OU symbol appearing on 275,000 different products.89 In 2012, the OU had more than 4,300 clients for whom they certified nearly 500,000 products supervised by a staff of 600 managers and mashgichim.90 The OU’s main rivals have also experienced dramatic growth since 1980. Table 1 illustrates the increase in industrial clients for the five largest agencies from 1980 to 2012. Fees from all of this business more than cover costs. The OU Kosher Division has become a primary source of OU revenue that subsidizes its youth programming, educational activities, synagogue support, community services, and political advocacy. Similarly, the CRC uses kosher certification fees to subsidize other organizational activities, and Kof-K,

Table 1.

Increase in Industrial Clients for the Five Largest Kosher Agencies, 1980–2012

OU OK Star-K Kof-K CRC

1980

2012a

500b NA 10e 100g 52i

4300c 2400d 1500f 900h 800j

a. All 2012 data are from kosher certification agency databases and were reported to the author by agency personnel. Figures have been rounded to the nearest hundred. It bears emphasis that this data is self-reported and only one measure of size, and it should be evaluated in light of data concerning the number of plants, products, ingredients, as well as retail supermarket presence discussed at length in Chapter 3. b. Yaakov Luban, The Kosher Advantage, www.oukosher.org (accessed December 21, 2011). c. Menachem Genack, email to the author, April 18, 2012. d. Eli Lando, email to the author, May 24, 2012. e. Rough estimate based on Avrom Pollak, “A 30-Year Retrospective on Kashrus Kurrents,” www.star-k.org (accessed May 31, 2011); Pollak, interview. f. Dovid Heber, email to the author, May 9, 2012. g. Harvey Senter, interview by the author, May 18, 2010. h. Esther Moeller, email to the author, May 29, 2012. i. Benjamin Shandalov, email to the author, June 6, 2011. j. Jan Mishkin, email to the author, June 8, 2012.

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OK, and Star-K all donate money from fees to community-service projects.91 Like the traditional kehillah, these agencies have harnessed kosher certification as a source of revenue with which to fund Jewish communal services. Unlike the traditional kehillah, however, they are private corporations operating in a competitive market for kosher certification services. The key to success in the kosher certification market is brand value. At the OU, Rosenberg established a reputation among consumers and food companies for high standards and integrity. The administrative structure he created, however, weakened this reputation. In particular, relying on local rabbis for supervision led critics to question whether the OU’s standards were really as high as it claimed or whether OU certification was all that different from the old system of supervision by individual rabbis. While Rosenberg mostly ignored these criticisms, Genack believed that as the OU continued to grow, they would damage its reputation and undermine its brand value. So he focused not only on business expansion but also on administration to ensure high standards and maintain the institution’s integrity—“to make sure we are credible.”92 Genack has promoted greater management oversight and professionalism within the OU. He has replaced reliance on local rabbis working largely independent of any oversight with a network of OU-trained “rabbinic field representatives” working under “rabbinic coordinators” in the New York central office. The OU’s five hundred full-time rabbinic field representatives conduct initial plant inspections and ongoing supervision to ensure compliance with the terms of certification the companies have agreed to. Rabbinic field representatives are mashgichim who specialize in industrial kashrus, and their title distinguishes them from local rabbis or other part-time mashgichim upon whom the OU still occasionally relies. Field representatives work in regional offices throughout the United States and in other countries. Fifty-seven rabbinic coordinators make up a cadre of middle-level managers with special expertise in different areas of kashrus. They make decisions about the approval of ingredients and the terms of certification. The field representative and the rabbinic coordinator “perform separate, but complementary, functions,” explains Rabbi Zushe Blech, a leading authority on kosher certification. The field representative serves “as the eyes and the ears of the Rabbinic coordinator,” who makes “all significant decisions relating to the certification.” While the field representative is a conduit for information between the company and the rabbinic coordinator, sometimes the rabbinic coordinator must mediate between the field representative and the company. Efforts by a field representative to enforce the terms of certification agree-

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ments can give rise to tensions between the field representative and a company. In such cases the rabbinic coordinator provides institutional backing for the field representative and a person to whom the company can appeal the field representative’s decisions.93 Each client is assigned to a rabbinic coordinator based on the rabbinic coordinator’s area of specialization. Some specializations are defined by expertise in a certain type of food or food processing, such as baked goods, beverages, botanicals, candy, dairy, dressings and sauces, eggs, emulsifiers and enzymes, fish, flavors, meat, nuts, oils, oleochemicals, Passover, pasta, pickles, potatoes, powdered goods, soy, spices, vegetables, vitamins, and wine. Other specializations are based on the geographic regions where production takes place, such as Europe, Israel, and the Far East. Rabbinic field representatives have clients within their geographic jurisdictions who fall under different specializations; therefore, each field representative has relations with many different rabbinic coordinators in the New York central office. The rabbinic coordinators are organized into groups of two to nine members with a senior rabbinic coordinator who serves as group leader. The groups provide a structure for consultation and oversight among the rabbinic coordinators. Group leaders report to senior management, which includes Genack as rabbinic administrator and two executive rabbinic coordinators. Genack is accountable to an OU Kashrut Commission appointed by the OU Board of Directors, a Rabbinic Kashrus Commission composed of RCA members, and the Joint Kashrus Commission of the OU and the RCA. Genack also consults with two senior rabbinic scholars who provide rulings on novel or complex issues of Jewish law.94 Rabbinic coordinators are also organized into administrative committees that deal with a variety of issues such as marketing the OU’s services, application-review standards, orientation for new clients, information technology, compliance policy, and education. Individual rabbinic coordinators are also in charge of administrative tasks such as responding to consumer inquiries, planning travel routes for mashgichim, documenting kashrus policy decisions, and providing legal counsel. An extensive nonrabbinic staff administers payroll, human resources, communications, clerical services, data processing, travel, and reimbursement, as well as other aspects of day-to-day operations.95 Other agencies have developed similar, although smaller, administrative structures. Kof-K, OK, Star-K, and the CRC all have regional offices staffed by full-time employees and overseen by middle-level managers in a central office. These managers specialize in different areas of kashrus or in different geographic regions. The CRC’s rabbinic administrator is accountable to a board of directors. Kof-K, Star-K, and the CRC all insulate

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decisions concerning questions of Jewish law from business considerations. Kof-K and the CRC both rely on committees of rabbinic experts to rule on questions of Jewish law, and Star-K follows the rulings of Rabbi Heinemann. All of the agencies also have extensive nonrabbinic staff for clerical, information technology, financial, legal, and other services.96 The OU and other agencies undertake extensive efforts to provide initial training and ongoing professional education for a new generation of “kashrus professionals.” The increasing chemical and technological complexity of industrial food production and competition among kosher certification agencies to promote their expertise and integrity have driven professionalization. Rabbinic administrators and their management teams of rabbinic coordinators produce a steady flow of lectures, conferences, workshops, newsletters, magazines, scholarly journals, books, and videos that support initial training and ongoing professional education.97 On-the-job experience, once the only way to become a mashgiach, is no longer sufficient qualification for a job with the major kosher certification agencies. Mashgichim must now pass a test, attend ongoing educational programming, and keep up with the relevant literature.98 They are expected to have a thorough familiarity with the raw materials, food chemistry, and processing equipment used in the plants they oversee. Former CRC rabbinic administrator Rabbi Benjamin Shandalov recalls that “the early 1980s were a pivotal time in the history of kashrus in that kashrus . . . started to take on a professional face in terms of its operation, to do things not seat-of-the-pants but in a professional way.”99 Aside from technical expertise, another aspect of professionalization has been human-relations training. Agencies train mashgichim in how to relate to clients. For example, Star-K begins its annual summer training course with a session on how to dress and behave when inspecting a production plant.100 The OU sponsors seminars to “sensitize our staff to the psychological dimensions of supervision,” explains OU executive rabbinic coordinator Rabbi Yaakov Luban. “[K]osher supervision works best when there is a sense of partnership. The Rabbinic coordinators in our office are expected to be friendly and service-oriented, and to maintain a friendly relationship with company personnel.”101 In the global economy, good customer relations increasingly require familiarity with foreign cultures, which geographical specialization among rabbinic coordinators and mashgichim is designed to develop.102 Agencies have also tried to cultivate greater professionalism among top management, especially in interagency relations. Highly public turf wars between rabbis over kosher meat production in the late nineteenth and early twentieth centuries undermined the credibility of kosher certi-

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fication within the food industry and among consumers. Agencies today fear that these sorts of high-profile rabbinic rivalries could undermine the reputation for expertise and integrity on which all of them depend. “Food companies and consumers will say, ‘I don’t want to be part of these rabbi wars,’ ” warns Senter. He insists that judgments about the acceptability of ingredients certified by other agencies must not be influenced by personal animus: I’ve often told my sons, who are in the business with me, if you don’t like a rabbi, don’t invite him when you make a kiddush [celebration for a special occasion] in shul [synagogue]. And if you’re the gabbai [person directing prayer services], if you don’t like him, maybe you don’t want to give him an aliyah [the honor of being called upon to read from the Torah]. But let it not influence the integrity of the work we do. If you don’t like a guy, but his hashgocha [kosher supervision] is beseder [okay], you have to say it’s okay. You have to say it’s acceptable. Make that the sole criterion as to whether or not we accept the product—that it fully meets with our requirements. Whether we like the guy or don’t like the guy should have no influence on it whatsoever.103

To be sure, there is a certain amount of personal rabbinic rivalry in industrial kashrus today, and everyone admits that, at times, it influences decision making. Nevertheless, greater professionalism is a widely shared aspiration that has helped to prevent the open warfare of a century ago, which did so much damage to kosher certification in meat production. Information technology has been another aspect of increasing management oversight and professionalism. While several of the leading agencies claim to have been the first to computerize record keeping, the leading agencies were all developing computer systems by the late 1980s. Today the leading agencies all maintain computerized records of approved ingredients and plant inspections.104 Cell phones and email have also greatly increased efficiency. One result of this technological revolution in kosher certification is that the major agencies all have a culture of quick response.105 Rabbinic coordinators constantly take calls and respond to a steady flow of incoming emails from early in the morning to late at night.106 Agencies also provide a number of services on their websites, including online account management for companies and consumer alerts about kosher fraud.107 Finally, religious commitment to kashrus has contributed to better management oversight and greater professionalism within kosher certification agencies. Many religious Jews believe that consumption of nonkosher food, even by mistake, irreversibly contaminates one’s soul and interferes with one’s capacity to connect to God.108 Causing another Jew to consume

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nonkosher food is considered a grievous sin. Consequently, each agency seeks to cultivate among its personnel a religious commitment to the agency’s goals of providing reliable kosher certification. At a training session for mashgichim, OU executive rabbinic coordinator Moshe Elefant impressed upon his audience the religious nature of their mission: The first requirement for being involved in giving hashgochas [providing kosher supervision] is yiras shamayim [fear of God]. That’s the first requirement. And someone who doesn’t have that requirement, as great a talmid hacham [rabbinic scholar] that he is, as much as he knows about hilchos isur v’heter [Jewish laws of prohibited and permitted acts] and other halachos [Jewish laws], he cannot be effective in this area. . . . We have, baruch Hashem [bless the Lord], just in this building alone, over fifty rabbonim [rabbis] working in the kashrus department, and we have hundreds of mashgichim all around the world. All of the rabbonim in our office have smicha [rabbinic ordination], they’re talmidei hachamim [wise scholars], mechabrei sforim [book authors], but what’s most important in their qualification to be able to be involved in this avodos hakodesh [holy work] is the fact that they are all yirei shamayim [God fearing]. And let me explain to you why. Giving a heksher [kosher certification] is not easy. Giving a heksher means that you have to be involved with many different people, as . . . most of these companies are not owned by frum yidden [religious Jews], and it is much easier to say “yes” than to say “no,” we all know that, and the company is under pressure, they could put pressure on you, and to keep that balance of yiras shamayim and not to always take the easy way out but to do what is necessary requires a very great degree of yiras shamayim. It requires constant encouragement and constant preparation to have that yiras shamayim.109

As this quote shows, OU personnel speak about the agency’s work in religious language not merely in terms of substance but also in terms of style. American-born, university-educated individuals employ a yeshivaworld patois designed to invoke the intimacy and unity that characterizes yeshiva culture. While difficult to verify or quantify, a shared sense of religious mission supports each agency’s efforts to maintain the reliability of its kosher certification.110 Rabbi Dan Yoel Levy, who succeeded his father at OK, emphasizes his religious motivations for going into industrial kosher certification and for working to make OK an industry leader: Why am I in kashrus? When I was learning in kollel [seminary], my father was working in kashrus at the time, and he wanted me to go help him. I was not interested. I wanted to go be a shaliach [missionary] for the Lubavitcher Rebbe. He asked it to the Lubavitcher Rebbe; the Lubavitcher Rebbe says he thinks it’s an idea. So, I said I wanted to speak to the Rebbe myself. So I went into the Rebbe myself, and he says to me that he very strongly urged

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me to go into it. He says that kashrus is—he said it in Yiddish: “kashrus ha’achila ushtia is oyched ein inyan fun hafatzos hayahadus”—“kosher food is also a way to spread Judaism.” And a few times after that, I tried to get out of it, and he would not agree, said I should stay into it. So I basically feel that kashrus is a shlichus [religious mission]. And he said, “What I want you to do is improve kashrus standards—that’s your shlichus. If you’re a small organization, you’re not going to have that much influence in improving kashrus standards. If you’re a large organization, then people are going to consider what you’re saying. So the larger you are, the more effect you’re going to have on kashrus standards. So, if we have a lot of companies and we set up a high standard, then we’re out there, and people have to take us into consideration. Then we can help kashrus.”111

Of course, it would be naïve to believe that money and prestige have played no part in the rise of private kosher certification agencies and the extraordinary expansion in the market for kosher food. At the same time, it would be a mistake to dismiss the role of religious motivation in agency efforts to institute management controls, raise professional standards, and make kosher food more widely available.

Organizational Bureaucracy and the Credibility of Industrial Kosher Certification The development of industrial kosher certification in America is a story about how entrepreneurial rabbis developed a new business and organizational model to adapt a two-thousand-year-old religious tradition to a liberal, free-market society. It is a story of old law in new institutions. “This was not a matter of looking more in the halacha [Jewish law],” explains Rabbi Shandalov, “it was a matter of administration.”112 The evolution of industrial kosher certification agencies has many of the features that characterize the development of organizational bureaucracy more generally. First, modern capitalism has tended to foster bureaucracy—in both private firms and government agencies. In response to demands for greater efficiency and rational risk management, bureaucracy promotes professional specialization, provides oversight, and produces information. Modern market economies have generated sufficient wealth to finance the costs of this growth in bureaucratic administration.113 In the case of kosher certification agencies, industry and consumer demand for low-cost, reliable kosher certification has stimulated professional specialization, management oversight, and information technology. And the growing demand for kosher certification has generated fees to finance the agencies’ administrative growth.114

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Second, bureaucracy is a response to complexity. As administrative tasks become larger and more technically complex and involve more people, they require increasing specialization, oversight, and information.115 The development of organizational bureaucracies among kosher certification agencies can be attributed largely to the emergence of a national consumer market, the growing complexity of industrial food production, and the globalization of supply networks. Third, bureaucracy is characterized by professional specialization and hierarchical management—role and rank.116 Kosher certification agencies have encouraged specialization among professional staff, supported by training and ongoing educational programs. They have also developed multitiered management structures, with overlapping oversight and separation of administrative powers. Fourth, the effectiveness of administrative bureaucracy depends on a common understanding and endorsement of the organization’s critical tasks—a shared sense of mission.117 Kosher certification agencies have defined their critical task as promoting kashrus observance by making reliably certified kosher food widely available at little or no extra cost to consumers. Agency directors and managers foster commitment to this task by framing it in religious terms—ne’emunus (trustworthiness), avodos hakodesh (holy work), shlichus (religious mission)—central to their own identity and that of their mashgichim as Orthodox Jews. The industrial kosher certification system works because consumers trust agencies’ certification. Kosher consumers will purchase a certified product only if they believe that the certification is reliable, and food companies will pay for certification of their products only if they believe that certification will attract consumers. Each agency and, indeed, the kosher certification industry as a whole depend fundamentally on their reputation for trustworthiness. Even small mistakes and isolated instances of misconduct in industrial kosher certification can affect hundreds of thousands of product units and have catastrophic consequences for an agency’s reputation. The damage that one big scandal could cause to the entire enterprise makes kashrus, in the words of one industry insider, “a house of cards.”118 Bureaucratization has helped to strengthen the integrity and the credibility of industrial kosher certification in ways that reduce the risk of ruinous mistakes or misconduct. Management oversight, technical expertise, separation of kashrus policy from business development, documentation, professional ethics, and a shared sense of mission have all enhanced the reliability of kosher certification. Administrative bureaucracy confers credibility based on a widespread faith in more formal

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organizational structures. We live in a society where we are used to essential services such as healthcare, education, and law enforcement being provided by professionals accountable to formal administrative authority.119 Kosher consumers have come to expect nothing less from kosher certification.

CHAPTER THREE

Sour Grapes and Self-Regulation Creating an American Standard of Kashrus

R

abbi Don Yoel Levy believes that the vinegar scandal of 1986 killed his father, Rabbi Berel Levy. The elder Levy had purchased OK from Dr. Abraham Goldstein nearly two decades earlier and made it into a leading kosher certification agency, second in size only to the OU. Levy prided himself on his diligence in verifying the kosher status of ingredients, traveling around the globe to visit foreign suppliers. “My father never accepted anything at face value. . . . He would always insist on seeing the source of the ingredients,” recalls the younger Levy. Having worked so hard to establish a reputation for meticulousness in checking ingredients, it was especially painful for Berel Levy when the Jewish Press reported that OK had erroneously certified nonkosher marc alcohol imported from Europe that was subsequently used by American companies to make vinegar. Marc alcohol is extracted from the solid remains of grapes that have been pressed in winemaking. These solid remains, which consist of skins, pulp, seeds, and stems, are known as pomace, or marc in French. Relying on OK certification of the marc alcohol, other agencies approved its use for vinegar production. Since the marc alcohol— technically a form of wine—had not been produced by Jews, it was nonkosher. So, too, was the vinegar produced from it and the many other products containing the vinegar. “When the OU found out,” recalls Rabbi Zushe Blech, who worked for the OU at the time, “literally millions and millions of dollars’ worth of product was thrown out because it all bore the OU certification, and it could not be considered kosher. We’re talking about pickles, we’re talking about ketchup, we’re talking about mustard— look at a list of products that contain vinegar and your head will spin. . . .

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Companies such as Heinz . . . their whole factories had to be kashered [ritually cleaned] because they were using treyf alcohol, which they bought in good faith. They didn’t do anything wrong. The OU thought it was kosher, and it turns out that it wasn’t.” The problem was compounded because the OU had no way of determining which particular batches of vinegar or consumer products contained the nonkosher marc alcohol. So to be safe, it ordered the destruction of all products even suspected of containing the offending vinegar. Berel Levy claimed that the foreign supplier had lied to him about the production of its marc alcohol. Others accused him of not understanding the production process and of lax supervision. When competing agencies suggested to OK clients that they switch certification, Levy accused his rivals of exploiting the scandal to further their own economic interests. A year after the scandal broke, Berel Levy died. “He had so much aggravation from it,” recalls his son, “that he passed away.”1 Regardless of who was at fault, the vinegar scandal damaged the kosher certification industry’s collective reputation. The president of the National Council of Young Israel, quoted in the Jewish Press, denounced “the slow and incomplete release of information concerning the wine vinegar incident as typical of the delaying and stonewalling tactics used by many of the kashruth supervisory agencies, adding to the confusion and distrust of the consuming public. Seven weeks after the incident was discovered . . . the kosher consumer has not been given a complete list of those products affected or unaffected, nor an adequate explanation of how the mistake happened in the first place.” He warned that “rumors of other serious lapses in kashruth supervision continue to spread” and that “unless the kashruth agencies accept their responsibility, kosher consumers will be compelled to repudiate the reliability of these national supervisions and be forced to go back to an earlier standard, when we relied exclusively on the judgment of our individual rabbis.”2 In a fit of hyperbole, the National Council of Young Israel president compared the vinegar scandal to the 1986 Chernobyl nuclear disaster.3 Yet, while the contamination of pickles and mustard hardly seems comparable to the radioactive fallout from Chernobyl, the juxtaposition highlights an important feature of the kosher certification industry. Joseph Rees describes nuclear utilities as “hostages of each other” because “a single catastrophic accident . . . at any one U.S. nuclear plant would have ruinous consequences for the entire industry.” According to Rees, the 1979 nuclear accident at Three Mile Island demonstrated to nuclear utilities that “the insufficiency and failure of one of them has a potential for destroying the credibility of all the others.”4 Similarly, the vinegar scandal

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showed that industrial food production makes kosher certification agencies highly interdependent. A mistake by one agency has potentially widespread and serious implications for agencies that rely on it later in the production process, and any resulting public scandal can damage the credibility of the kosher certification industry as a whole. While the vinegar scandal soured relations between OK and the other kosher certification agencies and left a bad taste in consumers’ mouths, it encouraged efforts to develop common standards, better communication, and more cooperation among kosher certification agencies. Just prior to the scandal, CRC rabbinic administrator Rabbi Benjamin Shandalov had convened a meeting of the heads of major community-based kosher certification agencies, which resulted in the founding of the Association of Communal Kashrus Organizations (ACKO). As the vinegar scandal unfolded, ACKO sponsored conferences to discuss certification standards, instituted a peer-review process, set up a computerized information-sharing system to alert agencies promptly about kashrus problems around the country, and developed guidelines to deter agencies from actively soliciting companies currently under the supervision of another agency. Today, the kosher certification industry is governed by the five largest agencies: the OU, OK, Kof-K, Star-K, and the CRC, collectively known as the “Big Five.” Rabbinic advisors, administrators, and managers at these agencies regularly discuss and seek consensus on both substantive and administrative issues. Examples include the kosher status of particular ingredients, equipment-cleaning procedures, and the frequency of inspection for different types of food production. In private conversations, during meetings, and at conferences, consensus has emerged on a set of shared principles and practices, sometimes referred to as the “American Standard of Kashrus.”5 The Big Five govern the kosher certification industry by encouraging one another and smaller agencies to adhere to the American Standard of Kashrus and shunning those who refuse. Big Five agencies provide educational programming, mentor smaller agencies, and promulgate minimum standards. They employ a number of means to shun agencies that fail to conform. The OU uses its extensive national network of synagogue rabbis to disseminate its views about agencies it considers unreliable.6 The CRC provides on its website a guide to “Understanding the Reliability of Kosher Agencies,” along with a list of “recommended” agencies.7 All five of the major agencies publish magazines or newsletters that include articles indicating which agencies they consider reliable, and these views are reported in independent kosher trade and consumer publica-

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tions and occasionally in the Jewish and mainstream presses. The Big Five also do not allow their industrial and food-service clients to use ingredients or foods certified by “non-recommended” agencies. The mere threat that a Big Five agency will not accept ingredients with a particular certification is often enough to convince the agency that owns the certification to capitulate or to persuade its client to switch certification agencies.8 Of course, all of this power can be misused. Personal animus and institutional rivalries can skew judgments about reliability. Information networks and supply-chain influence can be used to poach clients and stifle competition. The abuse of market power by Big Five agencies, however, is limited by fear of retaliation, concern to avoid rabbinic feuding that could damage the overall reputation of kosher certification, and a shared religious commitment to making kosher food widely available and affordable. The Big Five agencies have voluntarily pledged to refrain from active solicitation of food-company clients currently under the supervision of another agency while acknowledging that companies are free to change certification if they wish to do so. While the system is far from perfect, it has helped avoid the kind of unrestrained rivalry that could undermine the credibility of the industry as a whole while allowing for brand competition among agencies that enhances the reliability of kosher certification. It is important not to overstate Big Five control of the kosher certification industry. A number of agencies reject their standards and have successfully resisted their power. Some of these agencies simply lack the resources to adhere to Big Five standards, while others believe that the standards are more stringent than required by Jewish Law or, worse, merely a pretext for Big Five efforts to dominate the industry. Moreover, the position of agencies within the industry is not static. Agencies move in and out of compliance with industry standards due to changes in the agencies, the standards, or both. This chapter examines these dynamics of self-regulation in the kosher certification industry. It begins with an analysis of industry structure in which the Big Five dominate a large network of interdependent agencies. The chapter then looks at how these leading agencies govern the industry by developing, promulgating, and enforcing common standards. (Big Five governance of the industry raises antitrust issues that are addressed in Appendix B.) Finally, the chapter considers limits on the Big Five’s governance of the industry, including voluntary self-restraints on the exercise of market power and the persistence of agencies that reject the idea of a single American Standard of Kashrus.

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The Structure of the Kosher Certification Industry More than 80 percent of the kosher food sold in the United States is certified by the five largest agencies.9 While there are different ways to assess size, and verifiable data are hard to obtain, by all available measures the OU is the largest and most influential of the Big Five.10 Figures 3–5 chart the relative size of the Big Five according to the number of manufacturing companies, production plants, and products (including ingredients and retail items) that they each certify. These charts are based on selfreported information drawn from each agency’s internal database in April and May 2012.11 (Appendix D provides details about these data and their collection.) Figure 6 charts relative size by staff size.12 The OU’s preeminence is even more pronounced in the supermarket. Surveys of five large supermarkets belonging to major regional chains in Albany, New York; White Plains, New York; Evanston, Illinois; and Los Angeles suggest that two-thirds of the kosher-certified products on supermarket shelves carry OU certification—double the number of all other kosher certifications combined. Figures 7–11 present the findings from these surveys. (Details about the survey methodology and data are in Appendix E.) The OU is also dominant, although to a lesser degree, in the much larger market for kosher-certified ingredients. When a company applies for kosher certification of a product, it must provide the certifying agency with

5,000 4,500

Number of companies

4,000 3,500 3,000 2,500 2,000 1,500 1,000 500 0

OU

OK

Kof-K

Star-K

CRC

Figure 3 Relative size of Big Five Kosher certification agencies by number of companies (2012).

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8,000 7,000

Number of plants

6,000 5,000 4,000 3,000 2,000 1,000 0

OU

OK

Kof-K

Star-K

CRC

Figure 4 Relative size of Big Five Kosher certification agencies by number of plants (2012).

600,000

Number of products

500,000 400,000 300,000 200,000 100,000 0

OU

OK

Kof-K

Star-K

CRC

Figure 5 Relative size of Big Five Kosher certification agencies by number of products (2012).

a complete list of all ingredients within the production facility where the product is made. This list is known as a Schedule A. Kosher certification of a product requires approval of all Schedule A ingredients, each of which is classified as certified by a particular agency or as inherently kosher and therefore not requiring certification, a category known as Group 1. Each of the Big Five maintains a master list of all Schedule A ingredients in

Number of mashgichim & managers

700 600 500 400 300 200 100 0

OU

OK

Star-K

Kof-K

CRC

Figure 6 Relative size of Big Five Kosher certification agencies by staff size (2012).

Other Certification 19% CRC 0%

Star-K 1% Kof-K 10%

OK 3% OU 67%

Figure 7

Supermarket survey, Price Chopper, Albany, NY.

Other Certification 19% CRC 0% Star-K 1% Kof-K 6%

OK 7%

OU 68%

Figure 8

Supermarket survey, Hannaford, Albany, NY. Other Certification 18%

CRC 0% Star-K 3%

Kof-K 7%

OK 6%

Figure 9

OU 66%

Supermarket survey, Super Stop & Shop, White Plains, NY.

Triangle K 4% CRC 2%

Other Certification 9%

Star-K 1% Kof-K 5%

OK 10%

OU 69%

Figure 10

Supermarket survey, Jewel-Osco, Evanston, IL.

CRC 0%

Other Certification 7%

Star-K 0% Kof-K 8%

OK 14%

OU 71%

Figure 11

Supermarket survey, Ralph’s, Los Angeles, CA.

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production facilities that it supervises and tracks the number of production facilities in which each ingredient is used. For example, the OU tracks the number of production facilities under its supervision that employ OK-certified Wesson corn oil. Figure 12 presents the number of times ingredients certified by each Big Five agency are used in different production facilities under the supervision of any one of the agencies, expressed as a percentage, based on aggregated data from all Big Five agency master lists of Schedule A ingredients. So, for example, OU-certified ingredients represent 40 percent of all Big Five agency Schedule A ingredients that are certified (excluding Group 1 ingredients), counting each time an ingredient is used in a production facility under Big Five supervision. Using this metric, if OK-certified Wesson corn oil is used in 750 different production facilities supervised by one of the Big Five, then each of these 750 times the ingredient is used counts toward OK’s share of the total. (Appendix D provides further details about the sources and nature of these data.) Big Five status, however, is based on more than merely numbers. It rests also on recognition and influence. Until the 1980s, the OU was in a class all by itself as the only nationally recognized kosher certification agency. Then OK developed a comparable nationwide reputation among food Other 25%

OU 40%

CRC 5% Star-K 4%

Kof-K 14%

OK 12%

Figure 12 Relative size of Big Five Kosher certification agencies by ingredient certification (2012).

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companies and consumers. When a 2003 survey of kosher consumers found that as many respondents would rely on Kof-K as on the OU, Rabbi Harvey Senter of Kof-K recalls that “we were referred to as the third member of the Big Three: the OU, OK, and Kof-K.” Senter explains that “in the ’80s and ’90s, we were growing; but it still was like a feeling that the OU was the Cadillac. . . . But I think we’ve reached a point where people feel and understand that it’s absolutely equivalent.”13 According to Dr. Avrom Pollak of Star-K, his agency’s subsequent elevation to Big Four status was based not merely on size and brand recognition but also on the influence of its opinions. Star-K fields an average of three hundred phone calls per day from consumers and mashgichim working for other agencies, all of whom are asking questions about food products, including many that are not Star-K certified. Around Passover, call volume increases to approximately one thousand inquiries per day.14 Star-K also responds to requests from local communities for advice about how to organize local kosher certification.15 The CRC’s leading role in ACKO helped elevate it to Big Five status.16 New media have increased the recognition and influence of the Big Five. The OU reports that it receives more than half a million visitors annually to its website (oukosher.org) and more than a million total views during the course of a year. Other Big Five agencies report traffic on their websites on a comparable scale.17 A Star-K video posted on YouTube about how to check strawberries for insects has been viewed more than 190,000 times.18 OK released an iPhone kosher app that was downloaded by over 7,000 people within a year.19 Beyond the Big Five, there are more than three hundred smaller agencies and individual rabbis who provide kosher certification in the United States. Some are smaller versions of the Big Five agencies. They employ sufficient staff to provide management oversight of mashgichim, and they serve industrial clients who make products with national distribution. For example, Kosher Supervision of America (KSA), based in Los Angeles, employs a professional staff of ten and has 350 clients, many of whom produce national brands.20 More typical, however, are smaller operations consisting of a rabbinic administrator working with a few mashgichim or a rabbi working solo. It is still common practice for congregational rabbis to provide local kosher supervision to supplement their incomes. By one estimate, smaller agencies and individuals have, on average, only about twenty industrial clients.21 Smaller agencies and individuals may certify national brands or products with merely regional or local distribution. They play a more prominent role in the food-service sector, providing most of the certification for local restaurants and caterers.22

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There are different types of agencies. One is the local kashrus council—va’ad kashrus in Hebrew (plural, va’adei kashrus or simply va’adim)— which typically includes rabbis and lay leaders and is sometimes part of a larger community organization that offers services beyond kosher certification. The CRC Kosher Division and Star-K are va’adei kashrus for Chicago and Baltimore, respectively. Smaller agencies in this category include the Vaad Hoeir of St. Louis, which has a professional staff of ten and 150 industrial clients, and the Scroll-K Vaad Hakashrus of Denver, which has a staff of seven and 150 industrial clients. Smaller still are the Louisville Vaad Hakashruth, with a staff of seven and 22 industrial clients, and the Greater Phoenix Va’ad Hakashruth, with a staff of five and 18 industrial clients.23 Another type of agency is the privately owned organization. For example, OK was owned by Rabbi Berel Levy, and Kof-K is owned by Rabbi Harvey Senter. Smaller examples include Triangle K, owned by Rabbi Aryeh Ralbag and based in Manhattan, which has a professional staff of four and 200 industrial clients, and Earth Kosher, owned jointly by Rabbi Zecharia Tzvi Goldman and Rabbi Zushe Blech and based in New Jersey, with a professional staff of three and 110 industrial clients.24 Many of these are family businesses. Rabbi Don Yoel Levy succeeded his father, Rabbi Berel Levy, at OK, and Ralbag inherited Triangle K from his father, Rabbi Jehoseph Ralbag. Two of Senter’s sons work as senior managers in Kof-K, as do two of Ralbag’s sons, and Goldman’s wife is Earth Kosher’s chief financial officer.25 Worth mentioning also are dozens of Hasidic agencies and individuals that provide certification according to especially stringent standards observed in Hasidic communities. For example, the Bet Din Tzedek of Tartikov, which has a professional staff of twelve and is based in Brooklyn, has twelve industrial clients, for whom it provides certification for special production runs that involve more stringent equipment-cleaning standards, special restrictions on ingredients, and closer supervision than that required by the Big Five and most other smaller agencies and individuals.26

Insiders and Outliers: Defining the American Standard of Kashrus By all accounts, Rabbi Aryeh Ralbag has impressive rabbinic credentials. The son and grandson of respected New York City rabbis, he left home at the age of eighteen to study in Jerusalem, where he graduated from the prestigious Hebron Yeshiva with highest honors and received rabbinic ordination from a distinguished group of leading Israeli rabbis. Following his studies, he served for eight years as chief rabbi of Amsterdam. In

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1983, he returned to America to lead a large Brooklyn congregation and to take over the reins of the Triangle K kosher certification agency, founded by his father, Rabbi Jehoseph Ralbag.27 The elder Ralbag entered the field of industrial kosher certification as a young man in the 1940s and, over the next fifty years, developed a national clientele. In the 1960s, he adopted the trademark Triangle K symbol ( ). Since joining his father, Aryeh Ralbag has expanded the agency’s business and developed it organizationally. Today, Triangle K counts among its clients an impressive array of national brand leaders such as Hebrew National, Wonder Bread, Hostess, Fritos, Tostitos, Birds Eye, Ore-Ida, Del Monte, Sun-Maid, Minute Maid, Mott’s, Ocean Spray, Hawaiian Punch, and Yoo-hoo. Ralbag employs a senior management staff of four rabbis (two of whom are his sons) who oversee regional managers around the world, as well as a corps of more than two hundred mashgichim. The agency provides training and ongoing professional education for its mashgichim and has a food chemist on staff. According to its website, Triangle K considers itself “the most trusted name in strict rabbinical food certification” and certifies only products that meet “the strictest criteria of what makes such items kosher.”28 Triangle K has much in common with its larger competitors. Like all of the Big Five, it has instituted multilevel management oversight, developed a professional culture, and provides certification to leading companies around the world. Like the OU, it has been in industrial kosher certification for more than sixty years. And, like OK and Kof-K, it is a family business. There is, however, one crucial difference: there is widespread consensus that Triangle K certification is unreliable. According to the Big Five and many other agencies, Triangle K certification falls short of industry standards. This means that many agencies that certify foods downstream in the production process will not approve Triangle K–certified ingredients, and many kosher consumers will not purchase Triangle K–certified products, both of which reduce the desirability of Triangle K certification among food companies. The CRC omits Triangle K from an influential list of “recommended” kosher certifications posted on its website, and Orthodox rabbis around the country advise their congregants not to consume products with Triangle K certification.29 Critics of Triangle K argue that Ralbag’s kashrus standards are below the industry norm. One industry expert, who wished to remain anonymous, explained as follows: A lot of it has to do with his policies. I’ll give you the classic example. . . . There’s something called an edible oil refinery. In other words, you take

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crude oils and refine them into cooking oils and shortenings. In a kosher operation . . . if you have equipment that refines and deodorizes kosher animal fat, you don’t want that to be handling kosher vegetable fat. . . . Well, Rabbi Ralbag does—back and forth with no kashering [ritual cleaning]. Why? Rabbi Ralbag is a lamdan [expert in Jewish law]; he’s a talmid chacham [wise scholar]; and he has reasons for what he’s doing. . . . I could give you three or four cheshbonos [justifications] why he has a cheshbon [justification] to say it’s mutur [permitted]. But if I were to tell you that in my house I use my same frying pans to fry my vegetable oil and animal oil back and forth, what would you say to me? . . . You’re not coming, right?! Well, that’s exactly what the situation is with Rabbi Ralbag.30

Rabbi Ralbag insists that, although his father employed this leniency in the 1960s, he no longer relies on it today. Nevertheless, this example reflects a belief that Ralbag has kashrus standards—in this case regarding equipment cleaning—that, while principled, are sufficiently outside of the mainstream that other agencies will not rely on his certification. As another kashrus expert explained, “It’s permissible under Jewish law, but it’s a standard that many people are not willing to accept.”31 Critics of Triangle K also accuse Ralbag of lax administrative practices. An executive at another agency describes his experience as a former OU mashgiach at a production facility under dual certification of the OU and Triangle K. Concerning Triangle K’s supervision, he recalled that the agency’s “rabbis didn’t really go into their facilities. I went into one facility under the supervision of—I don’t want to say Triangle K, but let’s just say an organization like the Triangle K—and I’d been going there for about twelve years, and it had a dual supervision. I represented the OU, and the only rabbi they saw was me.”32 A different agency executive suggested that Triangle K lacks sufficient administrative capacity to provide proper oversight of its operations: I certainly would not imply that Rabbi Ralbag is a charlatan in any way. What I would say is that . . . he does not have the same standards as [the Big Five agencies]. He probably will tell you that himself. Take a look at the number of mashgichim that work in his organization compared to the number of companies that are being certified. And when one asks for particular information, is that information readily available? . . . I don’t really want to use Triangle K as an example, so let’s just take a kashrus organization X, and say they’re certifying something. So we don’t know too much about them. We want to know: How often do they visit a place? . . . Who is the mashgich? Does the plant make both kosher and nonkosher products? If so, what are the guidelines on how they separate them? What flavors are they using under what certification? If somebody were to ask [my agency] these types of questions, the person answering the questions would simply look up the

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number of that company in our database, and they’d be able to respond. . . . That information is at our fingertips. Whereas this organization X, if they don’t have that organization, then they’re just going to have to say, “I’ll get back to you in a few days,” because he needs to find out himself. . . . This person may not know himself what he’s certifying.33

These industry insiders thus cite two reasons that explain why they view Triangle K certification as unreliable: unacceptably lenient standards and inadequate administrative oversight. The nature of industrial food supply networks underlies the need for common standards in kosher certification. Industrial foods are typically made up of dozens of ingredients that pass through several complex processes performed in facilities around the world. Kosher certification agencies must either assume the kosher status of each ingredient, independently verify it, or rely on certification by another agency. Assuming the kosher status of ingredients—a common practice in industrial kashrus prior to the 1960s—is no longer accepted. Today, an agency that relied on such assumptions would quickly gain a reputation for lax standards and rapidly lose consumer confidence and industrial clients. Independently verifying the kosher status of ingredients is not feasible in most cases. For one thing, ingredient suppliers are often already paying for certification by other agencies. Additionally, ingredient supply networks are too large for any one agency to provide certification at each stage of production from raw materials to finished product. Thus, agencies must rely on certification of ingredients by other agencies. Common standards allow agencies to rely on certification by other agencies upstream in the production process without compromising the integrity of downstream agencies’ certification. The market dominance of the Big Five, especially the OU, gives them influence over common standards. Upstream, Big Five agencies certify many essential ingredients, and agencies downstream are forced to accept their certification standards. For example, if the only kosher-certified glycerin—an ingredient essential to many types of food processing—is OU certified, then all companies requiring kosher-certified glycerin and their certifying agencies must accept OU glycerin-certification standards. Downstream, Big Five agencies provide certification for many large food companies, and agencies upstream that certify ingredients must conform to Big Five standards so that Big Five agencies will approve the ingredients for use in the products that the Big Five agencies certify. For example, an agency that certifies a cheese flavoring must adhere to Big Five standards so that Big Five agencies will approve its use in cheese-flavored snackfood products. Rejection by a Big Five agency will close off lucrative

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markets for the cheese-flavor producer and render its current certification worthless. The high degree of interdependence in industrial kashrus requires that agencies continually evaluate the reliability of other agencies. Conversation within and between agencies has fostered a loosely defined and constantly evolving set of shared industry norms. Rabbi Yosef Wikler, editor and publisher of Kashrus Magazine, refers to this set of norms as the “American Standard of Kashrus.”34 Differences among the Big Five concerning minimum standards are often worked out through informal conversations between agency executives in phone calls, emails, and meetings. Consensus among the Big Five is then communicated to smaller agencies by word of mouth, publications, and conferences. ACKO—which in 1992 dropped its requirement that members be communal organizations and was renamed the Association of Kashrus Organizations (AKO)—has provided a forum for discussing controversial issues of kashrus policy and facilitating consensus among its members.35

Setting High Standards Although there is no definitive statement of the American Standard of Kashrus, the CRC has articulated some of its central elements in a document posted on its website, titled “Understanding the Reliability of Kosher Agencies.” The document lists five reasons why some agencies are deemed unreliable. First, the agencies “rely on certain leniencies that are not accepted by mainstream Kosher Law.” Second, “they simply do not visit their plants on a regular basis.” The key terms “mainstream” kosher law and “regular” visitation are defined by consensus among the Big Five. Third, agency staff lack “the required technical expertise” and are “unfamiliar with the internal workings of the machinery” at the plants that they supervise. Fourth, an agency has many accounts but is “solely owned and operated” and, therefore, unable to properly administer its certifications. Fifth, the agency “allow[s] its companies to use ingredients from non-recommended agencies.”36 By contrast, the CRC describes reliable agencies in the following terms: Highly qualified and trained Rabbinical Kashrus Supervisors visit their plants on a regular basis. A recommended kosher agency must keep up to date on the modern and constantly changing manufacturing techniques. They must be in constant contact with industry professionals, from food scientists to engineers. Kosher Supervisors must be ready to travel to such remote places as India, Tunisia, and New Zealand to supervise food production. Once they arrive in a production facility, they must be acquainted with the

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intricacies of production, including how the machinery works. These Rabbis are also sent by their agencies to seminars on food technology . . . in order to enhance their knowledge of the ever-changing food industry. . . . It is important to point out that the recommended group of kosher agencies has a vast support staff which handles the countless formulas and ingredients involved in Kashrus certification. Currently, it is mandatory for kosher agencies to have customized software, which includes a database of hundreds of thousands of ingredients and formulas. There is often a full-time person maintaining this software as it is not only a major expense but could also take years to develop. Even the most knowledgeable Rabbi in the world would find it impossible to run a Kashrus agency without a sufficient support staff and the proper software. Equally important is the need for a strong review department. The recommended agency will train select Rabbis in certain fields and will send them around the world to review those accounts in which they specialize.37

The CRC here describes minimum standards for industrial supervision that require a level of resources available only to the largest agencies. There is a general sense that kosher certification standards have become increasingly stringent since the early 1980s.38 One explanation is that the Big Five have ratcheted up kosher certification standards in order to appropriate business from smaller competitors who refuse to conform or lack the resources to do so. “More than one prominent Orthodox rabbi has suggested that modern kashrut ‘is 2 percent Halacha [Jewish law] and 98 percent ego and money and politics,’ ” according to law professor Kenneth Lasson, a Triangle K defender.39 Ralbag explains that he is wary of sharing any information with Big Five agencies about his certification standards in particular facilities for fear that the information will be used to convince his clients to switch certifications. According to Ralbag, Big Five agencies have frequently sent mashgichim and local rabbis into facilities under Triangle K’s supervision in order to convince the company to switch certification: “They go in and they solicit.” Although he has for several years had more open communication with Star-K and there has been a recent thawing in his relationship with the OU, for the most part, says Ralbag, “I don’t deal with them. They don’t deal with me. They say my hashgocha [kosher supervision] is not reliable.”40 Ralbag and others express doubt as to whether the Big Five actually are as stringent as they claim to be. Rabbi Aharon Abadi, who runs the popular website kashrut.org, argues that stringent standards are merely a pretext for poaching clients. He refers to the Big Five as the “Kashrut Mafia,” composed of “businesses with a touch of religion.” “Do you remember when Drakes [cakes] was under Rabbi Ralbag?” recalls Abadi.

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“It was treife according to some of these guys. Then the establishment organization got the account, now it’s kosher. Do you think they went out and kashered the whole plant, changed all the ingredients, and so on? Please!”41 Ralbag himself asserts that the OU orchestrated a campaign in the 1990s to convince kosher consumers not to rely on Triangle K certification of Coca-Cola. He claims that when the company finally switched to OU certification, the OU required no changes in either formula or processing.42 According to one account, although the OU was alerting consumers that Triangle K–certified Coca-Cola was not reliably kosher, it was assuring kosher restaurants that it was permissible to sell off their existing inventory in order to avoid significant losses.43 A second explanation for increasingly stringent industrial kashrus standards is that they are part of a general trend within Orthodox Judaism toward stricter religious practice. American Orthodox Judaism has always defined itself in opposition to the rival Reform and Conservative movements by advocating adherence to stricter interpretations of Jewish law. Jewish historian David Kraemer claims that the increasing stringency of kashrus standards is an exercise in Orthodox self-definition, a way to use kashrus as a cultural wedge between Orthodox Jews and their coreligionists by restricting what and where Orthodox Jews are permitted to eat. Increased kashrus stringency, explains Kraemer, reduces opportunities for social interaction among Orthodox and non-Orthodox Jews, much as kashrus has historically done with regard to restricting social interaction between Jews and non-Jews.44 Within American Orthodox Judaism itself, there is a long-standing tension between two distinct tendencies that represent different responses to declining religious observance and cultural assimilation. The first seeks accommodation between Judaism and the modern world. It encourages Jews to acquire both Jewish and secular education; to dedicate themselves to both traditional pursuits such as worship and study and to modern professions such as medicine, law, and academia; and to live a traditional Jewish life while being a fully engaged participant in America’s liberal-democratic culture. This accommodationist approach characterizes what is commonly referred to as modern Orthodoxy. The second tendency seeks to insulate Jewish life from modern influences. Its adherents live in Jewish enclaves that protect them from modern ideas and media while attempting to reproduce life as it was in the Old World of the European kehillah. This insular approach characterizes Jews who refer to themselves as Haredim, a Hebrew word for fervently religious, sometimes referred to as ultra-Orthodox. Samuel Heilman, a leading Jewish sociologist, asserts that the insular approach of the Haredim has

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gradually become dominant within Orthodox Jewish life in America. Increasing stringency in kashrus standards may thus be understood as one aspect of this more general “sliding to the right.”45 A third explanation for increasing stringency in kashrus suggests that standards have remained constant but that agencies have become more demanding in administering them. In the early decades of industrial kashrus, many companies tolerated only the minimum amount of rabbinic intervention necessary to obtain kosher certification, according to OU executive rabbinic coordinator Rabbi Yaakov Luban. The OU Kosher Division’s mission was to make kosher food widely available to observant Jews, so it did not insist on anything more than minimum standards. As kosher certification became more common, however, this dynamic changed. Kosher certification increasingly became a necessity for suppliers seeking to sell ingredients to the growing number of companies making kosher-certified retail products. “Because there is a greater demand, companies are willing to put up with more than they were before,” explains Luban. “Understand, there is no change in the interpretation of the kosher laws. The laws are the same now as they were fifty years ago,” he insists, “but fifty years ago it was much more difficult to implement the standards, and in kosher, as in many areas of life, there is optimal and there is passable. . . . Halacha [Jewish law] has a certain flexibility. Halacha says it is better to visit a plant once a week, but if it is difficult, you should go once a month—it is not so specific in the halacha.” Aside from less resistance from companies, kosher certification agencies also charge higher fees, which allows for more vigorous inspection routines. Says Luban, “If a company said ‘Look, if you want to come once a week, then you pay for it. We are not paying for it,’ so it becomes financially not feasible, so then we did not do it years ago. Today it is feasible, so we are doing it.”46 According to Luban, the increasing complexity of industrial food production has also contributed to a perception that kashrus standards are more stringent, whereas, in reality, what has changed is the level of professional expertise needed to apply the same standards. “[T]he advent of modern food processing has necessitated the formation of kashrus agencies that have the skill and talent to oversee complex facilities. A relatively new field, kosher supervision has evolved from a mom-and-pop enterprise into a sophisticated operation.” This new level of professionalism requires more rigorous training, inspection routines, documentation, and management oversight.47 The general trend toward greater stringency is limited by Big Five insistence that agencies need not exceed Big Five standards in order to be

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deemed reliable. The Big Five have always faced competition from smaller Hasidic agencies that advocate more stringent standards. Rabbi Berel Wein, who directed the OU Kosher Division in the mid-1970s, recalls that Hasidic rabbis used to denigrate OU certification as insufficiently strict in order to promote their own certifications. “They were trying to sell to the super pious,” explains Wein.48 The OU resists this pressure to adopt “superkosher” standards.49 Speaking to an audience of mashgichim at an educational program, OU executive rabbinic coordinator Moshe Elefant explained that “the goal of the OU is not only to certify products for the b’nei Torah [pious] who are sitting in this room. The goal of the OU is to certify products for people all around the world. That was why the OU was created, and that is what we view as our mission on a day-to-day basis.” The OU aims to make kosher food available not only to those who will eat only kosher or go without but also to those who will eat kosher if it happens to be available.50 Furthermore, Dr. Avrom Pollak of Star-K doubts that Hasidic rabbis who are granting superkosher certification actually have such high standards to begin with. “Sometimes we’ll ask them questions, and it’s very evident that all they’re doing is certifying the owner of an establishment that they personally may know. And they’ve agreed to give him a certification based on his sayso. But the rabbi has very little independent knowledge of what goes on in the company.”51 In some cases, a Hasidic agency will assign one of its own mashgichim to oversee production in a facility already certified by another agency, providing what is known as a “secondary” certification.52

The Politics of Kashrus There is more to building a reputation for reliability in industrial kashrus than adherence to stringent standards. What is commonly referred to as the “politics” of kashrus includes a variety of considerations that influence which agencies are deemed reliable.53 First, the status of a rabbi can affect whether he is judged unreliable for adopting kashrus standards that do not conform to the industry norm. For example, Rabbi Moshe Heinemann of Star-K has ruled that the requirement that an observant Jew be involved in the preparation of certain foods defined as “important” may be fulfilled by switching on a light bulb inside an oven since the bulb increases the heat in the oven—a view that is not accepted by the OU or many leading rabbinic authorities. Like Ralbag, Heinemann has principled arguments for his outlier position. However, unlike Ralbag, Heinemann is revered as a leading American rabbinic legal scholar of his generation. According to one industry insider, “Rav Moshe Heinemann is

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unique. . . . If someone else tried to do what Rabbi Heinemann does, they’d be run out of town.” Second, the market power of an agency influences whether nonconformity leads other agencies to deem it unreliable. According to the same industry insider, “The OU does other things that are just as much, or even more, of a problem, but they’re accepted” because the OU has extensive power over kosher supply chains and a network of congregational rabbis.54 Third, personal relationships influence interagency dynamics. On the one hand, personal relationships can build trust. Before he headed the OU Kosher Division, Rabbi Menachem Genack worked for Rabbi Harvey Senter at Kof-K, which may help to account for the two agencies’ cordial relations.55 Similarly, CRC rabbinic administrator Rabbi Sholem Fishbane worked for the OU as a field representative while serving his first congregation in Buffalo.56 According to Star-K president Dr. Avrom Pollak, “relationships amongst the largest organizations have gotten better simply because people are more familiar with one another. It’s easier to meet face to face and to talk to people. And inevitably when you do that, you find that a lot of your preconceptions about somebody else probably were not even true in the first place.”57 On the other hand, lack of personal interaction sometimes breeds suspicion. For example, in 2005, the va’ad kashrus of Queens and the va’ad kashrus of the Five Towns and Far Rockaway banned Streit’s Passover matzah, which was under the individual supervision of Rabbi Moshe Soloveichik. Rabbi Yoel Schonfeld, copresident of the Queens va’ad, explained to a local Jewish paper, “We don’t know enough about Rav Moshe Soleveichik. He just doesn’t swim in the kashrus world . . . we’re not saying he’s bad; not at all. We just don’t know.”58 Fourth, personal and family histories also play a role in interagency dynamics. Although there is no longer open hostility, there is a distinct lack of warmth between the OU’s Genack and OK’s Levy, who are likely still smarting from the exchange of bitter recriminations over the vinegar scandal. The OU–Triangle K rivalry goes back a generation to OU Kosher Division director Rabbi Alexander Rosenberg’s campaign to replace industrial kosher certification by individual congregational rabbis with a network of OU-supervised mashgichim. In the 1950s, the elder Ralbag refused to give up his private certification business and was forced to resign his rabbinic position at an OU-affiliated synagogue and his RCA membership. The conflict turned into a feud as Rosenberg and Ralbag repeatedly clashed in competition for accounts, a pattern that continued when Genack and Aryeh Ralbag succeeded them. There is a cultural dimension to the rivalry as well. The OU is the nation’s largest modern

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Orthodox institution, whereas, the Ralbags have a family history of lifelong membership and leadership positions in Agudas Harabonim, the country’s preeminent Haredi (ultra-Orthodox) rabbinic organization. This cultural difference is also reflected in the contrast between Genack’s rabbinic training and university education at New York’s Yeshiva University and the Ralbags’ yeshiva study in Jerusalem. Aryeh Ralbag reports that he has a good working relationship with Star-K, which is headed by Rav Heinemann, who is also from the Haredi yeshiva world.59 Fifth, a rabbi’s religious views outside of kashrus often affect whether his certification is deemed reliable. For example, one rabbi was expelled from his local va’ad kashrus for allowing women to dance with a Torah scroll on the holiday of Simchat Torah, a practice outside of the modern Orthodox mainstream and completely foreign to Haredi communities.60 Another rabbi refused to sign a document calling for greater sensitivity to the issue of homosexuality within the Orthodox community for fear that it would undermine the acceptability of his kosher certification.61 These various “political” considerations—which influence which agencies are deemed reliable—are often referred to within the industry by the term ne’emunus, Hebrew for “trustworthiness.” In most legal matters, such as contract enforcement, liability, or criminal conviction, Jewish law requires the testimony of two religiously observant witnesses to establish a fact. The rule is different, however, where the establishment of a fact is relevant to avoidance of prohibited conduct, in which case Jewish law allows for a person to rely on the testimony of one witness—a principle denoted by the Hebrew phrase eid echad ne’eman b’isurin (“one witness is sufficient in matters of prohibition”). Kashrus provides a classic example of this principle. One may rely on the assurance of one witness concerning the kosher status of a piece of food. The ne’emunus, or trustworthiness, of that witness is normally a matter of his personal level of religious observance. In some cases, ne’emunus may also be based on personal knowledge of the witness’s integrity.62 In the world of industrial kashrus, ne’emunus has come to encompass a broader array of considerations, including status, interpersonal relations, family history, and religious outlook. A term frequently used within the industry to describe a person with ne’emunus is the Yiddish term ehrlich, meaning “honest.”

A Kosher Trade Association The Association of Kashrus Organizations (AKO) has facilitated discussion among the Big Five about industry standards and enlarged the discussion to include input from rabbinic administrators at smaller agencies

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around the country. AKO meetings have fostered greater ne’emunus among members while, at the same time, more clearly demarcating the boundary between industry insiders and outliers. Although AKO has no formal power to make or enforce policy, its committees and conferences have hosted discussions that have shaped the American Standard of Kashrus. In September 1985, CRC rabbinic administrator Rabbi Benjamin Shandalov sent a letter to the OU and about a dozen va’adei kashrus in major cities around the country, inviting them to send representatives to a meeting in Chicago. “For a long time I have felt that there exists a need for the various community-based Vaadim for Kashruth to establish better communications among ourselves,” wrote Shandalov.63 At a November meeting, participants discussed how to promote more effective interagency communication, develop a closer working relationship between local va’adei kashrus and the OU, define the division of labor between national and local certification agencies, establish common industry standards, agree on criteria for assessing the reliability of private certification agencies, and coordinate information published in local kashrus bulletins.64 Participation in this first meeting was limited to “community-based, non-profit” kashrus organizations—that is, va’adei kashrus, including Star-K (as the va’ad kashrus of Baltimore) and the OU but not the privately owned OK, Kof-K, or Triangle K.65 Following the meeting, Shandalov circulated a “Proposed Outline for Organization,” in which he stated, “I feel we should encourage maximum participation, and yet at the same time we want to maintain this organization as a conference of community-based agencies.”66 At a subsequent meeting hosted by the OU in New York City in February 1986, representatives from fifteen va’adei kashrus and the OU founded the Association of Communal Kashrus Organizations (ACKO). In his address at the conference, Genack described a vision of the industry with the OU at the center of a national network that left no place for private certification: “The Orthodox Union and local vaadim are essential to one another in accomplishing the general task of maintaining kashruth standards. On a national scope, the Orthodox Union supervises national companies and their individual distributors. Locally, vaadim are needed to supervise butcher shops, bakeries, restaurants, caterers and other retail facilities.”67 The exclusion of private agencies from ACKO reflected a belief that kosher certification should be a community service, not a profit-making business. In rejecting an invitation to a kosher food industry exposition, Shandalov wrote that he considered the mere suggestion that a kosher

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certification agency would market its services as “in poor taste” and “offensive”: This suggestion gives the impression that the “Hechsher” [kosher certification] is a commodity to be promoted in the market place like packages of cookies. Such thinking actually degrades and undermines Kashruth in America by telling the consumer that the only difference between hechsherim [kosher certifications] is based on which group is the best salesman. As a non-profit agency and as a charter member of ACKO (Association of Community Kashruth Organizations) we do not ever solicit companies for endorsement, and we deplore those private individuals who do so and, thereby, cheapen the concept of Kashruth.68

Shandalov’s disdain for marketing, however, seems somewhat naïve in light of the fact that the OU pioneered the use of modern marketing techniques to lay the foundations of the industrial kosher certification system. Indeed, some members of ACKO were fearful that the OU was using ACKO as a means to push both its private competitors and local va’adim out of industrial kashrus. Following the New York City ACKO meeting, at which Genack outlined his vision of the industry, the chairman of the Va’ad Hakashruth of Flatbush, Brooklyn, Rabbi Sydney Applbaum, proposed that at its next meeting the association discuss decentralization of kashrus certification, limits on how large any one agency should be, rules to prevent the poaching of clients, and grievance procedures to settle interagency disputes. He also advocated ACKO membership for the larger private agencies such as OK, Kof-K, and Triangle K.69 Star-K hosted ACKO’s next meeting in Baltimore in August 1986, by which time the membership had grown to twenty-four local va’adei kashrus and the OU.70 The association resolved to establish a peer-review system to ensure minimum standards among ACKO members. Participants at the meeting also raised the possibility that “some form of associate membership” would be available to private kashrus organizations.71 But when an invitation to the fourth ACKO gathering in St. Louis in May 1987 was extended to Berel Levy of OK, Genack threatened not to attend, and the invitation was withdrawn.72 At the fifth ACKO conference, in New York City in November 1987, participants sought to define the restrictions on membership more precisely. These included a requirement that member agencies be nonprofit organizations, meaning that any profits were the property of the organization and not of any individual. There was also a requirement that the director of the agency be accountable to and removable by a board of directors. In addition, the director must be salaried and not compensated by commissions. Finally, membership was limited to Orthodox agencies.

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Conference participants also approved a proposal to invite the “Big Three” private agencies—OK, Kof-K, and Triangle K—as “associate members” on condition that they submitted to peer review at their own expense, paid higher annual dues, and accepted nonvoting status within the association. The proposal further stated that any organization that refused to submit to ACKO peer review would be subject to a boycott by ACKO members.73 Triangle K refused to submit to peer review for fear that other agencies would use it to convince clients to switch certifications. OK accepted peer review in principle but would not pay for it. Kof-K submitted to two initial peer reviews at its own expense but was upset by the way they were conducted. In addition, neither OK nor KofK would agree to pay higher dues or accept membership without full voting rights. In response, the ACKO steering committee wrote a letter to OK threatening a boycott by ACKO members of OK-certified products unless it submitted to peer review. OK responded that it would submit to peer review but only if ACKO paid for it.74 At the December 1989 ACKO conference hosted by Star-K in Baltimore, participants discussed reprisals against the private agencies for their refusal to submit to peer review on ACKO’s terms, which they felt were essential to the association’s efforts to set minimum standards for kosher certification. According to the minutes of the meeting, participants worried that “if we do not accept for-profit organizations, we are left with a very large problem. There are a large number of products, many of them key ingredients that are used by all companies, that are certified by the for-profit organizations.” Participants were especially concerned about the implications of not including OK and Kof-K, “whose standards are no better or worse than [those of] our own A.C.K.O. members.” Participants believed that peer review was part of professionalizing kosher certification: “Peer review simply means that, like other professional organizations, . . . if you’re a member, your peers, who are most knowledgeable about what you are doing, will be able to come and see if you’re meeting their expectations or if you conform to minimum standards.” They authorized the steering committee to send OK and Kof-K letters requesting access to facilities under their supervision for ACKO inspectors, with an initial round of inspections to be paid for by ACKO. If the agencies accepted, ACKO would again extend them invitations to join the association and open discussions on having them pay the cost of further peer review. Should the agencies refuse to allow ACKO inspection, the steering committee was authorized to organize a boycott of selected products certified by the agen-

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cies. According to the minutes, the meeting participants agreed that “we will not say that the product is not kosher, but we will say that peer review is of major importance to kashrus,” so that companies that rely on the product “can use it if you have no choice—but if possible, you should try to use an alternative product.”75 After an extended period of skirmishing over the terms of inspection, both OK and Kof-K submitted to peer review, and ACKO agreed to accept private agencies as full members, changing its name in March 1992 to the Association of Kashrus Organizations (AKO).76 With all of the Big Five as members of the association, AKO gained greater credibility as a standard setter for the kosher certification industry. From its inception, the association improved personal relationships among its members and encouraged discussion about industry standards. At the May 1987 ACKO conference in St. Louis, Shandalov declared that “[t]here is no doubt in my mind that we have broken down many of the barriers of suspicion that existed between agencies. This has been accomplished just by meeting face-to-face and getting to know each other. This, in turn, has created an atmosphere in which, I believe, we all feel comfortable calling each other, sharing information, and understanding each other.”77 At the association’s semiannual meetings, presentations and discussions on a wide variety of topics helped to shape consensus on matters of kashrus policy and administrative practices. Topics from the early conferences included methods of cleaning industrial food-processing equipment, the kosher status of different enzymes employed in industrial food production, issues specific to flavor production, concern about the use of nonkosher oils to coat steel barrels used for ingredient storage in order to prevent corrosion, design of a tamper-proof plombe for kosher poultry, removal of blood vessels in kosher beef preparation, insect infestation of produce, production of kosher and nonkosher products in the same manufacturing facility, supervision of local butchers, bakeries, and catering establishments, methods of securing storage areas to prevent the introduction of nonkosher ingredients, interagency information sharing, professionalism in management and customer relations, documentation in kosher certification agencies, unauthorized use of certification symbols by food companies, analysis of recent kashrus scandals, state kosher fraud laws, and open question-and-answer sessions with kashrus experts from the OU, Star-K, and CRC.78 A computer bulletin-board system for members, which took a few years to get up and running, increased information sharing among agencies.79 As the membership of ACKO expanded,

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eventually including private agencies, the personal networks linking member agencies developed, and the association became increasingly representative of the industry. Although AKO has played a significant role in fostering deliberation, information sharing, and interagency trust among its members, it has never set specific, enforceable standards for the industry. In 1993, the association formally abandoned its initial ambitions to set industry standards, institute an industry-wide peer-review system, and adjudicate interagency disputes. At a November 1993 AKO conference, an overwhelming majority of member agencies favored limiting the association’s role to providing a forum for information sharing and nonbinding policy deliberation.80 In addition, AKO’s role is further limited by a perception among nonmembers that the association is a clique dominated by the Big Five. “We’re not a member of AKO because I don’t think they’re ehrlich,” complains Ralbag. “I go into the first meeting, and they said they’re only— what do you call it—public hashgochas [certification agencies]. I said, ‘What does public hashgochas mean?’ I said, ‘You can call it whatever you want. I don’t call the OK public; I don’t call the Kof-K public. What’s public here?’ Hashgochas are hashgochas. I was in the first meeting, and I never went there again. I said, ‘You just want to talk loshon hara [slander] . . . not to work together.’ . . . I call it a private boys’ club.”81 Today, AKO has more than seventy members, including the Big Five, local va’adei kashrus, private agencies, individuals, kosher magazines, and kosher marketing agencies.82 In 2007, the eight largest AKO members—the Big Five, plus the va’adei kashrus of Los Angeles, Toronto, and Montreal—adopted a set of minimum standards that established general administrative guidelines for oversight, information management, mashgiach qualifications, and frequency of supervisory visits to production facilities.83 Current AKO executive director Rabbi Sholem Fishbane of the CRC suggests that these now constitute membership criteria.84 The association sponsors two annual conferences, one dedicated to industrial kosher certification and the other to local va’adei kashrus, which includes many programs on food-service supervision.85 It also organizes committees to discuss specific issues as they arise, such as cleaning methods for tanker trucks that transport food ingredients and kashrus problems in liquor production.86 “Whenever there’s a real problem going on in kashrus . . . the relevant committee will put together a conference call . . . then we’ll have a big meeting,” explains Fishbane. He is quick to add, however, that AKO’s role is limited to promoting discussion and disseminating information, “but ultimately, we never, ever require an agency to follow what everybody else does . . . the leading agen-

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cies are very careful that AKO should not become a deciding body—they want to keep their independence.”87

Leaders of the Package: Big Five Governance of the Kosher Certification Industry The Big Five enforce the American Standard of Kashrus in four distinct ways. First, they sponsor educational activities that promote industry standards. As we have seen, the Big Five agencies offer a wide variety of training programs, conferences, and publications promoting professional skills and ethics. Many kashrus professionals started their careers or otherwise received training at Big Five agencies. In addition, Big Five agencies mentor smaller agencies. For example, the OU regularly advises local va’adei kashrus on kashrus standards, administration, and organizational structure.88 Local va’adei kashrus regularly call Big Five agencies for advice.89 This type of frequent contact constantly reinforces industry standards throughout the kosher certification industry. Second, the Big Five exert influence through subcontracting. They hire va’adei kashrus to provide local supervision at industrial plants according to industry standards. For the large national agencies, it is much more efficient to hire a local person than to fly a mashgiach to periodically inspect a facility, and va’adei kashrus are eager to oblige. The typical va’ad kashrus provides labor-intensive local food-service certification that is much less profitable than industrial certification. Va’adei kashrus also tend to view kosher certification as a community service and therefore charge fees that often leave them struggling to cover their operating costs. Moreover, local industrial clients often switch from the local va’ad kashrus to a national kosher certification agency when they grow sufficiently large to have national ambitions or are acquired by bigger companies already under Big Five certification. For these reasons, va’adei kashrus are happy to serve as subcontractors to provide local industrial supervision for Big Five agencies as a way to supplement their incomes. “There’s a real symbiosis between the locals and the larger agencies, like the OU,” explains industrial kashrus expert Rabbi Zushe Blech.90 Third, the Big Five use supply-chain power to enforce industry standards.91 Agencies that certify ingredients are careful to adhere to industry standards for fear that, if they do not, the ingredients they certify will not be accepted by Big Five agencies that certify products downstream in the production process. “If you want to be accepted by the large agencies, then you basically have to follow their standards,” explains Rabbi Zecharia Tzvi Goldman, CEO of Earth Kosher, a midsize agency with more

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than one hundred industrial clients. Moreover, the disapproval of a Big Five agency is like a communicable disease: once a Big Five agency rejects ingredients certified by another agency, other agencies will not accept those ingredients for fear that products they certify will be similarly rejected. “We follow large-agency policy,” says Goldman, “If the large agencies do not accept a kosher certifier, we are not going to accept them.”92 Supply-chain power need not even be exercised to be effective. The mere possibility of rejection constitutes a kind of peer pressure that promotes conformity with industry standards.93 Fourth, the Big Five promote industry standards by means of their influence over consumers through publications and websites. Magazines such as the OU’s Behind the Union Symbol, OK’s Kosher Spirit, Star-K’s Kashrus Kurrents, Kof-K’s Kashrus Newsletter, and the CRC’s Kosher Consumer are distributed to tens of thousands of postal and email subscribers and are available for free on agency websites.94 In addition, each day the Big Five agencies field hundreds of consumer hotline calls and receive thousands of visitors to their websites.95 Disapproval of agencies that fail to meet industry standards is also communicated to consumers indirectly. For example, agencies deemed unreliable are simply omitted from lists of “recommended agencies” or consumers are advised to avoid particular products.96 Local congregational rabbis regularly call Big Five agencies to obtain advice about the reliability of certification on specific products, and they relay this information to their congregants.97 Rabbis also frequently post a list of accepted kosher certifications in their synagogues and advise congregants about which certifications to rely on.98 The reputational damage that Big Five disapproval can cause motivates agencies to adhere to the industry standards.

Avoiding a Kosher Food Fight: Constraints on Big Five Power There is a danger that Big Five agencies could use all this power to harm competitors in order to improve their own standing. The Big Five are the guardians of industry standards. Is there anyone guarding the guardians? One thing that prevents Big Five agencies from using their power merely to improve their own standing is fear of retaliation. Even the largest agencies are dependent on other agencies, and interaction among them is frequent. Agencies tend to respond to other agencies in kind. If one treats another with respect, the other is likely to reciprocate. An agency that believes it has been unfairly treated by another agency is likely to retaliate. Indeed, retaliation is a matter of principle within the industry.99 Ralbag explains that he will accept clients seeking to drop

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their current certification by another agency only “if it’s an agency that has done that to us . . . but an agency with a hashgocha [kosher certification] which I do not know or which we have a good relationship with, I would never do it.”100 This principle of retaliation leads most agencies to exercise self-restraint in competition for clients. “You always want to get along because whatever you do will come back to haunt you because somebody will do the same to you,” explains Blech.101 Levy explains that escalating retaliation is “no good for kashrus, you know, you can’t control it. What you’re doing to someone else they’re doing back to you, so it works both directions. If you want to protect everything, you have to work together. What goes around comes around.”102 In addition to fear of retaliation, concern for the overall reputation of kosher certification restrains Big Five power. As Chapter 1 explains, public feuding between rabbis in kosher meat production in the late nineteenth and early twentieth centuries undermined consumer confidence in kosher certification generally. Today, rabbis running kosher certification agencies are concerned about how interagency rivalry threatens to undermine the image of kosher certification as a valuable marketing tool for industrial food companies. “It’s to the detriment of kashrus that there’s such cutthroat competition,” laments Ralbag, “the way rabbis bad-mouth one another, the way rabbis speak with disrespect one on the other. . . . I find in the industry . . . when they think they went so much out to have this rabbi certify them and then you tell them . . . ‘it’s a fraud,’ then they think all Judaism is a fraud.”103 Agencies are also eager to avoid competitive behavior that could fuel a race to the bottom that would undermine the integrity of kosher supervision generally. “It would be inappropriate for another certifying agency to come in and offer certification to a company under our certification at a different standard,” explains Rabbi Ari Senter of Kof-K, “because you simply don’t want manufacturers shopping. . . . If a manufacturer wants to switch certification because of finances or because of service, that’s fine. But if it’s done because . . . this organization requires less, that just basically would force all kashrus organizations to the least common denominator.”104 A third source of restraint on Big Five power is a sense of religious mission. Shortly after Genack took the helm of the OU Kosher Division, a conflict arose between Genack and his former boss at Kof-K, Rabbi Harvey Senter. A leading spice manufacturer informed both agencies that it intended to switch certifications from Kof-K to the OU. Senter accused Genack of poaching his client. Jewish law prohibits third-party interference with established business relationships, and there is a shared

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understanding among kashrus agencies that it is wrong to actively solicit companies currently under the supervision of another agency.105 Genack insisted that the OU had done nothing to solicit the company. He went to consult his mentor, Rabbi Joseph B. Soloveitchik, who advised him that even though “companies have a right to choose whomever they want . . . I do not want the outcome to be that the OU controls the entire market because I do not think it would be healthy to have that kind of monopoly.” This advice made a deep impression on Genack, who argues that the overall vitality of kashrus is enhanced by having more than one kosher certification agency. “The OU has not used its leverage, which it could, to squeeze everybody out. . . . We want to make it as easy as possible— assuming that halachic [Jewish law] standards are in place—for companies to [obtain kosher certification]. . . . We feel [that we have] a mission in terms of trying to promote kosher and make it easier for people to have it.”106 While kosher certification is a business, it is not only a business. Rabbi Don Yoel Levy of OK echoes this sentiment when he describes kosher certification as a shlichus—a religious mission. “The purpose is to give people kosher food and to give people kosher food all over the world as much as possible.”107 These sources of self-restraint—fear of retaliation, concern for the overall reputation of kosher certification, and a sense of religious mission—led AKO members to adopt an informal code of competition. At a November 1992 meeting, they approved a policy prohibiting solicitation of clients currently being certified by another agency. In cases where clients wish to switch certification from one agency to another, the policy requires the new agency to verify that the company is not in violation of any kashrus policy of the previous agency and that it has paid all fees owed to the previous agency. Disputes are to be referred to a rabbinic arbitration panel.108 While the policy reflects growing cooperation among agencies, it has never been enforced. A mere three months after the policy was adopted, a dispute broke out between OK and Star-K over the decision of a major flavor company to switch certification, and the parties failed to agree even on appointing members to a rabbinic arbitration panel, leaving the matter unresolved.109 AKO has, however, occasionally relied on the policy to mediate disputes between smaller agencies.110

Accepting a Certain Amount of Nonconformity: The Limits of Big Five Control The Big Five set standards for industrial kashrus regarding acceptable ingredients, equipment cleaning, frequency of visitation, and documenta-

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tion. These standards are dynamic. They are the product of ongoing rabbinic discussion and deliberation, and they define a range of accepted practice that allows for variation and change over time. The standards are also informal. They are not legally enforceable. Instead, the Big Five use education, subcontracts with local va’adei kashrus, supply-chain power, and influence among consumers to encourage each other and smaller agencies to comply with them. While these industry standards are widely accepted, some agencies and individuals nonetheless refuse to conform. In response, the Big Five tolerate a certain amount of nonconformity within kashrus. Perhaps mindful of the damage to the overall reputation of kosher certification that would result from public rabbinic disputes, they have refrained from openly condemning outliers or trying to drive them out of business. Moreover, while the Big Five have sufficient supply-chain power to restrict nonconforming agencies’ access to ingredient markets, Big Five influence over retail markets is limited to kosher consumers who are informed and concerned about different levels of stringency. These are typically religiously observant Jews, who constitute only 8 percent of kosher consumers. Most kosher consumers are not as discriminating and will purchase products with any kosher certification. Thus, for example, while Big Five agencies accept few Triangle K–certified ingredients in the products that they certify, Triangle K has a relatively large presence on retail supermarket shelves. Surveys of five large supermarkets belonging to major regional chains in Albany, New York; White Plains, New York; Evanston, Illinois; and Los Angeles found that between 2 and 10 percent of kosher-certified products surveyed carried Triangle K certification, generally more than Star-K or the CRC and sometimes more than OK and Kof-K. (For the actual data, see Appendix E.) Moreover, a nonconforming va’ad kashrus may enjoy a good local reputation among religiously observant kosher consumers. For example, the Vaad Harabonim of New England (KVH) is not a member of AKO and does not appear on the CRC’s list of recommended certifications. KVH has more than two hundred clients and provides certification to companies all over the country. Despite Big Five disapproval, it is highly regarded within the Boston Orthodox community, where it is based. In some cases, agencies simply refuse on principle to accept standards set by the Big Five. Ralbag explains that he adheres to “the regular standard of kashrus” in certifying many products for the average kosher consumer. He insists that his certification is widely accepted by rabbinic authorities in Israel and Europe, where “the Ralbag name is very, very

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highly esteemed and respected in the old rabbinical circles.” While he does certify some products according to more stringent standards for the ultra-Orthodox consumer market, he believes that standards set by what he calls “the Triumvirate—the OK, the Kof-K, and the OU”— are unnecessarily strict in theory and not followed in practice. “On the  outside, you say one thing and you want to appear that you’re machmir [strict] on every chumrah [legal stringency], and when I’m in the company, I see it’s not true, it’s simply not true.” Ralbag is flatly opposed to Big Five governance of industrial kashrus. “I think it’s undermining yiddishkeit [Judaism] in America,” he laments, “desecrating our family’s name and causing goyim [gentiles] to hate Jews” when they see rabbis feuding among themselves for what they perceive to be petty self-interest.111 In other cases, nonconformity is the product of insufficient resources. For example, KVH’s recently retired, longtime director, Rabbi Abraham Halbfinger, is not apologetic that the agency does not conform to all of the Big Five’s standards, explaining that “we don’t have that kind of income as they have.” As far as he is concerned, “each kashrus agency makes its own determination in terms of standards. Some people may accept it; some may not accept it. That happens all the time.”112 The line between agencies deemed reliable and those deemed unreliable is neither sharp nor static. In addition to “recommended” and “nonrecommended,” the CRC website has a category for what it calls “detail” agencies. These are agencies whose “products are accepted on conditions, and they are investigated on a case-by-case basis to determine if each final product is acceptable.”113 Thus, reliability may vary with regard to a particular company depending upon the ingredient or product in question. Moreover, agencies move in and out of compliance. Rabbi Yoseph Wikler advises the readers of his 2010 Kosher Supervision Guide to check the reliability of kosher certification agencies every six months. “Life changes. Rabbis get older. A weakness in an agency can come to light. The ‘American Standard of Kashrus’ itself can take a sharp turn to the right [i.e., toward greater stringency], and this rabbi is left back. Or, the other way around, agencies attempt to upgrade and may now be considered in the acceptable range. As observers of kashrus for the past three decades, we know that the only constant in kashrus is that everything is constantly changing.”114 In the end, the American Standard of Kashrus may simply be another name for Big Five governance of industrial kosher certification. Through internal and interagency deliberation, the Big Five have developed a loose and evolving set of industry norms that they use to govern the in-

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dustry. Allowing for the continued operation of nonconforming agencies is part of this governance, as it avoids the kind of bitter rivalry that undermined kosher meat certification in the late nineteenth and early twentieth centuries and maintains what Jewish law calls shalom bayit—domestic tranquility—within American industrial kashrus.

CHAPTER FOUR

Taking Stock The Effectiveness and Integrity of the American Industrial Kashrus System

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harges of fraud and corruption in kosher certification are commonplace. For example, in January 2008, the Winnipeg Free Press reported derelict supervision throughout the 1990s by the OU mashgiach at Freshwater Fish Marketing Corporation, the largest North American supplier of fish minced to produce gefilte fish. According to the article, a government audit of the company revealed that the mashgiach spent much of his time on an office computer instead of observing the production line to prevent nonkosher species of fish from accidentally making their way into the mix. Moreover, for the last five years of his employment, the mashgiach lived 120 miles away and commuted to Winnipeg once every couple of weeks merely to pick up his paycheck.1 The story was picked up by a number of blogs that are regularly critical of the kosher certification industry. “Honestly, as I read about this latest transgression—I felt anything but shocked,” opined a writer for The Jew and the Carrot, a popular Jewish food and culture blog. “These days, it seems that the kosher food industry is fighting the American meat industry for the ‘most scandals per year’ award. A little E. coli here, some inhumane treatment of animals there—is it really such a surprise to find out that the OU isn’t as consistent or rigorous in their supervision as they claim?”2 In addition to accusations of lax supervision, there are also allegations of excessive stringency. In some cases, critics argue that agencies are unnecessarily strict in order to hoodwink companies and consumers into paying for certification of products that do not require it, such as inherently kosher foods like bottled water or nonfood items like aluminum foil.3 “For crying out loud, is there anything they won’t take their cut on?” exclaimed

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one outraged kosher consumer in a comment posted on a popular Jewish blog discussing kosher certification of these products.4 In other cases, agencies accuse each other of raising standards solely to gain competitive advantage. For example, Rabbi Don Yoel Levy alleges that for years the OU attempted to keep OK out of kosher wine certification—an area largely controlled by the OU—by advising local va’adei kashrus and food-service establishments under OU supervision that OK certification of wine was unreliable. According to Levy, this had nothing to do with the kosher status of the wine and everything to do with the OU’s desire to monopolize kosher wine certification. He claims that a member of the OU’s top management team told him, “I will drink your wine, but I will not let it into my places.”5 Of course, there is another side to all of these stories. Agencies do not condone sloppy supervision. The Big Five dedicate significant resources to professional training and management oversight in order to promote increasingly vigilant industry standards. Agencies also reject the charge that certification of products like bottled water or aluminum foil is dishonest. The OU’s website includes articles on why agencies certify these items, explaining that some companies pasteurize their bottled water on equipment used to pasteurize milk and that there are legitimate questions about the use of nonkosher oils in the production of aluminum foil.6 Rabbi Yaakov Luban, an OU executive rabbinic coordinator, explains that in these cases, companies believe that kosher certification offers them a competitive advantage, and, since there is some legitimate basis for concern, the OU provides certification even if the agency does not consider it necessary.7 As for allegations of unfair competition, what one agency views as a pretense for gaining economic advantage, the other normally defends as a legitimate concern about kashrus standards. Regardless of which side one takes in these controversies, they raise two important sets of questions about industrial kashrus certification. First, how effective is industrial kashrus certification in protecting consumers? How well does it perform its central tasks of ensuring that only approved ingredients and processing methods are used to produce koshercertified foods and that only properly certified foods are labeled kosher? In other words, is industrial kashrus certification an effective regulatory strategy for preventing adulteration and mislabeling of kosher food? Second, does the kosher certification industry do an adequate job of regulating itself in order to ensure the integrity of kosher certification? How well does the certification industry police itself to prevent agency misconduct? Does industrial kosher certification provide a successful example of industry self-regulation?

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In assessing the effectiveness and integrity of any institution, it is important to ask: compared to what? Since all regulatory institutions have strengths and weaknesses, virtues and vices, the question is not whether private kosher certification is an ideal system but rather how it compares to the available alternatives.8 This kind of comparative institutional analysis reveals that the industrial kashrus certification system, while admittedly flawed in many respects, has significant advantages over government regulation in protecting consumers from adulteration and mislabeling of kosher food. Moreover, although there is undoubtedly some truth in allegations of mistakes and misconduct in the industry, the industrial kashrus system does a relatively good job of policing itself compared to self-regulation in other certification industries. Of course, regulatory alternatives are not mutually exclusive, and institutions normally do not operate in isolation.9 Accordingly, this chapter also examines the relationship between private kosher certification and government regulation. While government regulation for the most part complements the efforts of kosher certification agencies, it plays a minor role in industrial kashrus. In many places, kosher certification agencies operate effectively without any direct government regulation of kashrus. The claims presented in this chapter about the effectiveness and integrity of kosher certification apply specifically to industrial kashrus. They are less true of kosher certification in meat production and food service. This is not to suggest that kosher certification in these other fields is unreliable. The point is simply that focusing on industrial kashrus more clearly highlights the comparative institutional advantages of private kashrus certification. The discussion does not, however, exclude meat production and food service altogether. Most agencies engage in more than one field of kosher certification, and to analyze industrial kashrus in isolation would be an oversimplification of the way the industry works.

Kosher Certification Agencies’ Effectiveness in Providing Consumer Protection Kosher certification agencies endeavor to protect consumers from two distinct problems: adulteration and mislabeling. In some states, government agencies are also involved in protecting consumers from these problems. Adulteration means the use of unapproved ingredients and processing methods in kosher-certified foods. In a typical example, an OU-certified manufacturer substituted a nonkosher shortening in a product previously approved for kosher production, thereby rendering the product nonkosher. Mislabeling means the use of unauthorized kosher

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symbols on uncertified foods. For example, a beverage manufacturer’s application for kosher certification was denied because the equipment used to pasteurize its product was also used to pasteurize nonkosher grape drinks, but company executives used the OU kosher symbol anyway, without authorization. In another case, a major supermarket chain introduced a new line of store-brand canned meat and pasta. The supermarket graphics department created a label for the new product based on an existing label for OU-certified canned peas and carrots. The graphics designer mistakenly copied the kosher symbol for use on the new product, which was not certified.10 Any evaluation of kosher certification agencies’ effectiveness in protecting consumers from these problems faces significant challenges. Comprehensive data on the rates of adulteration and mislabeling in the kosher food industry do not exist. Moreover, any assessment of the deterrent effects of kosher certification is necessarily speculative. Nevertheless, available evidence suggests that kosher certification reduces adulteration and mislabeling and that agencies consistently alert consumers when these problems occur. The analysis presented here relies on self-reported data from Big Five agencies and data from New York State kosher law enforcement. These sources indicate that adulteration and mislabeling in the kosher food industry are rare. In addition, structural analysis of industrial kosher certification reveals powerful disincentives against fraud, which is consistent with the data suggesting a low rate of adulteration and mislabeling. Kosher certification agency records and interviews with agency personnel indicate that adulteration and mislabeling are rare and almost always unintentional. According to Rabbi Howard Katzenstein, who heads the OU Kosher Division’s legal department, among the half-million products that the OU certifies, the agency investigates about five hundred cases of questionable use of the OU symbol each year and takes corrective action in approximately fifty.11 Katzenstein estimates that his office sees cases of intentional adulteration or misbranding “not more than a handful of times a year.”12 OK reports about two dozen cases of unauthorized use of its symbol each year among the 300,000 products that it certifies.13 Rabbi Don Yoel Levy can recall only “a few cases” of intentional misconduct by companies during his more than two decades as rabbinic administrator of OK.14 Star-K reports that out of the 74,000 products it certifies, the agency deals with ten to twenty cases of adulteration or mislabeling each year, most of which involve innocent mistakes that are easily corrected and that companies are eager to remedy.15 Kof-K reports that out of the 193,000 products it certifies, the agency

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encounters only two or three cases of adulteration or mislabeling each year.16 The CRC’s business manager, Rabbi Abe Sharp, could not recall any intentional violations and reported at most a few dozen unintentional violations among the 68,000 products that the agency certifies.17 Agencies’ willingness to voluntarily disclose problems through consumer alerts and product recalls—at significant cost to the agencies and their food-company clients—bolsters the credibility of self-reported agency data. Each of the Big Five agencies posts on its website several alerts each month warning consumers about problems with products that it certifies— for example, products that mistakenly contain nonkosher ingredients or products incorrectly labeled pareve that contain dairy ingredients. Alerts also inform consumers about products that bear unauthorized agency symbols. Each alert is based on detailed documentation of the problem in agency files. Alerts are frequently accompanied by product recalls. The most dramatic example is the vinegar scandal of 1986, which involved the recall and destruction of millions of dollars of items that agencies feared contained erroneously certified nonkosher vinegar.18 In another notorious case, the OU received a tip in 1987 from an employee at Shelat Kosher Foods of Chicago—one of the nation’s largest suppliers of kosher chicken—that the company was placing kosher labels on nonkosher poultry products at one of its processing plants under OU supervision. The following day, an OU surprise inspection revealed that the company was smuggling nonkosher poultry into the plant at night, after the mashgiach had gone home, and packaging it for sale as kosher. The OU immediately alerted other agencies, food-service providers, consumers, and the Illinois attorney general’s office. The OU subsequently assisted the attorney general in a lawsuit against the company, alleging consumer fraud and deceptive trade practices. By the end of the week a judge had ordered the company to recall 376,000 pounds of poultry, refund customers’ money, and stop selling its products as kosher. The judge subsequently imposed an additional $250,000 fine on the company and issued a consent decree permanently prohibiting the company or its owners from producing or distributing kosher products. The scandal, which affected tens of thousands of consumers and businesses in twenty-two states, was described as “the largest case of fraud involving mislabeling of kosher foods.”19 Agencies routinely publish alerts and order recalls when they discover problems. “They don’t look so great when they do this, but they are doing it on a regular basis,” asserts industrial kashrus expert Rabbi Zushe Blech. “No day goes by without a consumer alert issued by one of the major kashrus organizations saying ‘this has been mislabeled,’ or ‘this is

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not kosher.’ . . . There is a constant stream of ’fessing up, if you will. They are not cases as egregious as Shelat, but they are constantly happening.” Regular disclosure of problems to consumers is essential to maintaining agency brand value. “It enhances their credibility when they are honest,” explains Blech. Consumers “know that mistakes happen, and, as long as they see that you are actually telling people when you make a mistake, it gives greater credibility to the hoshgocha [kosher supervision].”20 Data on New York kosher law enforcement also indicate that adulteration and mislabeling are rare. New York State Department of Agriculture and Markets Kosher Law Enforcement Division records reflect that between 2005 and 2010, the agency conducted more than thirty-seven hundred inspections of nearly nine hundred industrial kosher foodproduction facilities but found only four violations of the kosher fraud law and issued only sixteen warnings.21 Several structural features of industrial kosher certification create powerful disincentives against fraud. Although fraud was widespread in kosher meat production in the early decades of the twentieth century, industrial kosher certification today is “a different world,” according to OU executive rabbinic coordinator Rabbi Moshe Elefant. To begin with, there is simply less incentive to cheat. The intensity of supervision required for kosher meat production significantly raises production costs, creating a financial incentive to defraud consumers. By contrast, most industrially prepared foods require less intense supervision, and the high rate of production allows for the cost of that supervision to be spread across tens or hundreds of thousands of product units. The small added per-unit cost is easily absorbed by increased sales to kosher consumers. Thus, in industrial kashrus, food companies have little economic incentive to cut corners. Moreover, AKO guidelines that discourage members from certifying companies found to have violated the terms of previous certification contracts have made the consequences of getting caught more onerous. A company discovered committing fraud can find itself shut out of the kosher market altogether.22 In addition, the scale of modern food production makes industrial kosher fraud difficult to conceal. “If you are going to cheat, you are really putting yourself into danger because you have so many people that would have to be part of any collusion,” says Elefant. Moreover, the network of relationships among kashrus professionals makes it difficult to conceal problems. “There are no secrets in this industry,” explains Blech, “because the cadre of mashgichim that is out there—their services are not unique to any given hashgocha [certification agency]. They are private contractors that contract with many hashgochas. So they are going to be privy to

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information across the hashgocha spectrum, and they are not necessarily those with the greatest discretion in what they say. So, if somebody finds something out, they are going to spread it.”23 Brand competition among agencies and religious concern to prevent consumers from mistakenly eating nonkosher food give agencies incentive to police each other. Agencies have occasion to discover problems with products certified by other agencies when investigating ingredients those agencies have certified, certifying products in facilities that also produce products certified by other agencies, or certifying products that carry more than one certification. For the most part, agency efforts to police each other are collegial. “There is an unwritten agreement,” explains Blech, “that any time someone goes into another hashgocha [facility under the supervision of another agency] and sees a violation, they will call the hashgocha [certifying agency] and tell them.”24 Sometimes, however, the zeal with which agencies police each other generates resentment. The vinegar scandal of 1986 illustrates just how proactive and aggressive agencies can be in policing each other. It began when a Star-K rabbi noticed that a popular brand of kosher chopped herring being sold for Passover in a Baltimore supermarket was not certified for Passover use. Since the herring was shelved in a special kosher-for-Passover section of the store, Star-K was concerned that consumers might have mistakenly purchased it for use on Passover. Before issuing a consumer alert, however, Star-K initiated an investigation to determine whether the product contained any impermissible ingredients. Concern centered on the vinegar used to pickle the herring. Vinegar contains alcohol, which, if derived from wheat or corn (as opposed to a synthetic source), would run afoul of special Passover restrictions on consumption of certain types of grain products. The herring company led the investigator to the vinegar supplier, who led him to the alcohol manufacturer. When asked whether the alcohol was derived from wheat or corn, the alcohol manufacturer shocked the investigator by informing him that it was derived from grapes— meaning that it was nonkosher not under special Passover restrictions but under the general prohibition against consumption of nonkosher wine. Star-K immediately contacted OK, the certifier of the alcohol. StarK also issued an alert to other agencies and consumers. The other agencies responded by publishing alerts and ordering recalls—at great expense to themselves and their industrial clients. The OU, Kof-K, and Star-K all issued warnings to consumers not to purchase products containing OK-certified vinegar. These three agencies’ aggressive response to the crisis was fueled by a mix of religious concern and brand competition. The OU in particular, a longtime rival of OK, “went to town,”

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recalls one agency official involved in responding to the scandal. OK rabbinic administrator Rabbi Berel Levy, who himself had a reputation for being highly critical of his rivals’ kosher standards, believed that the other agencies were motivated primarily by brand competition and accused them of using the incident “for personal benefit and vendetta.”25 Before moving on, it is important to acknowledge that this assessment of kosher certification agencies’ effectiveness in protecting consumers from adulteration and mislabeling of kosher food relies heavily on selfreported data and interviews with agency personnel—which raises legitimate concerns about bias. Are kosher certification agencies a reliable source of information about their own performance? Even if this is the best evidence available, is it good enough? The answer to both of these questions is yes. To begin with, the routine practice among agencies of alerting consumers to instances of adulteration and mislabeling—at significant cost to themselves and their industrial clients—lends credibility to self-reported data and interviews. In addition, data on New York State kosher law enforcement are consistent with certification agency information indicating that adulteration and mislabeling are rare. Moreover, structural analysis of industrial kosher certification reveals that fraud does not pay, it is difficult to conceal, and agencies have incentive to police each other. Finally, reliance on self-reported data and personnel interviews is considered an adequate basis for evaluating government agencies’ regulatory performance. For example, a 2011 audit of food-safety inspection by the federal Food and Drug Administration (FDA), conducted by the Office of the Inspector General, U.S. Department of Health and Human Services, relied exclusively on FDA inspection records, which were not independently verified, and interviews with agency personnel. According to the audit, such reliance on self-reported data and interviews with agency personnel comports with the Quality Standards for Inspection and Evaluation issued by the Council of Inspectors General on Integrity and Efficiency.26 Although the evidence may not be dispositive, it offers reason to believe that industrial kosher certification has overcome the widespread fraud and corruption that characterized kosher meat production in the early decades of the twentieth century. Moreover, the evidence of industrial kosher certification’s effectiveness in protecting consumers is substantial enough to merit a closer look at how and why it works. As will become clear in the next chapter, a better understanding of kosher certification offers lessons that can improve the performance of private thirdparty certification in other areas of food regulation.

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The Limits of State Kashrus Regulation Twenty-two states have kosher fraud laws that prohibit the sale of any food product falsely represented as kosher. State regulation of kosher food, however, suffers from several significant limitations. One problem is lax enforcement. Most states with kosher fraud laws do not conduct regular inspections of industrial facilities or food-service establishments. Instead, officials initiate enforcement only in response to consumer complaints. In many states, it can be hard to know precisely where to lodge a complaint. For example, in response to an inquiry about state regulation of kosher food, an attorney in the Arkansas attorney general’s office stated that there are “absolutely no state statutes in Arkansas dealing with kosher products.” When the caller—a student research assistant—informed the attorney that he had located the Arkansas kosher fraud statute on Westlaw and had it in front of him, the attorney looked up the statute himself and expressed astonishment that “the state would try to regulate such a thing.” The attorney explained that he had neither any knowledge of the law nor any idea who might know about it or how it was enforced. He suggested that the student try the state department of health, but a subsequent inquiry there was met with a similar response.27 Where there are state officials specifically charged with enforcing kosher fraud statutes, they are typically responsible for food safety or consumer protection generally, and they receive little or no training in kashrus.28 The few states that do employ trained kosher inspectors lack enough of them to provide adequate coverage. For example, New Jersey’s Bureau of Kosher Enforcement, a unit of the state’s Division of Consumer Affairs, employs one full-time kosher inspector who makes about five hundred inspections each year, covering almost all of the supermarkets in the state. “The Bureau tries to circle the state at least once a year,” says former bureau director Rabbi Yakov Dombroff. The bureau does not, however, inspect more than a small sampling of industrial facilities or food-service establishments in the state.29 The Kosher Law Enforcement Division of the New York State Department of Agriculture and Markets was, until recently, a notable exception. The division’s team of experienced kashrus professionals conducted three to four unannounced inspections annually at more than three thousand industrial facilities and food-service establishments selling kosher food throughout New York State and followed up with 300 to 775 detailed investigations, depending upon the year.30 In 2011, however, budget cuts led the state to dismiss all ten of the division’s kosher inspectors, leaving only the division’s director, Rabbi Luzer Weiss, who has been charged

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with training Division of Food Safety inspectors—who lack any previous knowledge of or experience in kashrus—to enforce the state’s kosher fraud law. He estimates that this new arrangement will reduce the frequency of routine kosher inspections to one per year, which will now be part of a general food-safety inspection.31 The First Amendment also limits state regulation of kosher food. In 1989, the New Jersey Bureau of Kosher Enforcement filed consumer fraud charges against Ran-Dav’s County Kosher store for several violations of the state’s kosher fraud regulations. State inspectors had discovered various meats that had not been bled and deveined according to detailed regulations for kosher meat processing. In addition, inspectors found six boxes of nonkosher chicken breasts in the bottom of a storage freezer, in violation of a regulation that prohibited storing kosher and nonkosher food together. Ran-Dav’s challenged the charges by arguing that the state’s kosher fraud regulations—which defined kosher as “prepared and maintained in strict compliance with the laws and customs of the Orthodox Jewish religion”—violated the First Amendment’s Establishment Clause, which prohibits excessive government entanglement in religious matters.32 The New Jersey Supreme Court agreed and struck down the regulations in 1992. In its opinion, the court emphasized that the regulations authorized the state to monitor adherence to strictly religious kosher standards, and it concluded that “[a]s a result, Jewish law prescribing religious ritual and practice is inextricably intertwined with the secular law of the State.” It worried that “disputes that would arise under the kosher laws would call inescapably on the State to assume a religious role . . . seeking to impose and enforce its own interpretation of Orthodox Jewish doctrine, and any adjudication by a court of such disputes inevitably would entail the application and interpretation of Jewish law.” The court recognized, however, that “[t]he State unquestionably has a valid interest in preventing fraud in the sale of any foods, including kosher foods,” and it suggested that New Jersey could avoid constitutional problems by replacing its enforcement of particular kashrus standards with a disclosure requirement that would “require those who advertise food products as ‘kosher’ to disclose the basis on which the use of that characterization rests.”33 Following Ran-Dav’s successful challenge, New Jersey adopted disclosure requirements in place of specific kashrus standards. The new regulations require kosher food dealers—including manufacturers, foodservice establishments, and retail stores—to post a disclosure form that provides information about the kosher standards that they employ. The

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regulations further require that kosher food dealers file with the Bureau of Kosher Enforcement documentation identifying the individual or agency providing rabbinic supervision or stating that the dealer is not under rabbinic supervision. Those claiming to be under rabbinic supervision must also maintain a logbook documenting each visit and must keep detailed records of kosher meat and poultry purchases. The regulations also require individuals and agencies that provide rabbinic supervision in New Jersey to file a list of all the kosher food dealers that they supervise.34 Most state kosher fraud laws are modeled on New York State’s 1915 statute, which defines “kosher” as in accordance with “orthodox Hebrew religious requirements,” leaving them vulnerable to constitutional challenge.35 Following the Ran-Dav case, successful constitutional challenges have been brought against kosher laws in New York, Maryland, and Georgia. In response, each of these states has adopted a version of New Jersey’s disclosure approach.36 In order to avoid a court challenge, Minnesota amended its kosher fraud statute in 2004 to remove reference to “orthodox Hebrew religious requirements” and to require instead disclosure of the supervising rabbinic authority.37 The shift from specific standards to disclosure has changed the nature of state regulation of kashrus. States that have adopted the disclosure approach no longer provide assurance that food is kosher. They merely demand that food sellers be transparent and that their representations be truthful. So, for example, a food manufacturer that states that it provides its own kosher certification and that it accepts a particular ingredient as kosher is in compliance with the law. From the state’s perspective, “pork could be kosher,” says Dombroff. “The state has no interest in what you call kosher, as long as you’re in compliance with the disclosure. The place can be under your German shepherd’s supervision, as long it’s disclosed.”38 Weiss explains that “We have nothing to do with kashrus; the state has nothing to do with religion.”39 Another limitation of state regulation of kosher food is that legal penalties do not sufficiently deter large industrial food manufacturers. For example, the Missouri kosher fraud statute imposes fines between $25 and $500 for violations. Some states, such as New York and New Jersey, authorize fines up to $15,000.40 Although a fine this size is a significant penalty for local restaurants and butcher shops, it is unlikely to deter large industrial food companies and retail chains with revenues in the billions of dollars. And while many statutes also provide for imprisonment, states have not jailed perpetrators of kosher fraud even in the most egregious cases.41

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These limitations—inadequate enforcement resources, First Amendment restrictions on government regulation, and inconsequential legal penalties—raise questions about the effectiveness of state regulation of kosher food. Attorney Nathan Lewin, who represented New Jersey and New York against constitutional challenges to their kosher laws, views increasing adoption of the disclosure approach as “a great disaster” for consumer protection. For less knowledgeable kosher consumers, “the substitute laws are toothless and meaningless,” he claims. But Dombroff insists that the change in law did not affect his bureau’s regulatory practice. While the old law required that kosher food sellers adhere to Orthodox standards, the bureau allowed the sale of foods as kosher under a different standard so long as the merchant provided explicit notice of the standard. Dombroff recalls that he declined to fine a store that sold sturgeon and swordfish, which are kosher according to Conservative but not Orthodox religious standards. “I got in touch with the owner, and I said, ‘look, you can do whatever you want, but you have to put up a sign that says that this is kosher—not kosher under Orthodox laws but kosher under Conservative laws’—because the state’s role was never to enforce religion.”42 At the same time, Dombroff admits that, even in New Jersey, state regulators lack adequate enforcement resources to provide comprehensive consumer protection. “Did you ever do more than fifty-five on the highway? Were you stopped every time by a trooper? Of course not. . . . Caveat emptor [buyer beware] still has to be there,” he explains. “Anybody who is sincere about keeping kosher cannot rely on the disclosure because you can’t rely on the state.” This is especially true in industrial kashrus since the Bureau of Kosher Enforcement has dedicated most of its limited enforcement efforts to inspecting supermarkets.43 Some observers believe that state regulation of kashrus is unnecessary since consumers rely on certification agencies. “Orthodox people here don’t care what the state does,” explains Rabbi Meier Brueckheimer, executive director of the Rabbinical Council of Bergen County, New Jersey. According to Rabbi Yosef Wikler, the editor and publisher of Kashrus magazine, “the bulk of what the state is doing is not helpful.”44

The Advantages of Private Kashrus Regulation Kosher food certification provides an especially compelling example of private regulation. Kosher certification agencies offer a number of institutional advantages that make them comparatively well suited to protect consumers from adulteration and mislabeling in the kosher food industry.

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To begin with, kosher certification agencies have greater expertise in determining how the traditional laws of kashrus apply to modern industrial food production. The Big Five agencies are advised by the nation’s leading rabbinic kashrus authorities and run by managers with extensive training in kashrus coupled with practical experience in areas such as food chemistry, food technology, marketing, information technology, and law. By contrast, most state officials charged with enforcing kosher fraud laws have little or no training in kashrus.45 Kosher certification agencies are more responsive and accountable to consumers. While government regulation is often considered more democratically accountable than private regulation, the reverse is true in kosher food regulation. State legislators and state agency officials—for whom adulteration and mislabeling of kosher food is a relatively low priority—are not likely to vigorously pursue complaints about kosher food regulation, especially in states where religiously observant Jews are a small minority with little electoral influence. Moreover, legislative and administrative rule-making processes are very slow, frequently taking years to produce results. Buck passing is also common: legislators deflect blame onto state agency officials for failing to properly implement legislative mandates, while agency officials point fingers at legislators for failing to equip them adequately to do the job. This is hardly a recipe for democratic accountability. By contrast, kosher certification agencies owe the brand value of their services to their reputation among consumers, and they are motivated by a sense of religious mission. They solicit consumer feedback and respond to concerns through their public presentations, telephone hotlines, websites, newsletters, and magazines. Furthermore, kosher certification agencies can respond to consumer concerns more quickly by instituting kashrus policy changes without the procedural hurdles faced by government regulators. Jewish historian David Kraemer complains that kosher certification agencies have ratcheted up their level of stringency over the past several decades as part of a more general campaign among Orthodox Jews to drive a wedge between themselves and Jews affiliated with the rival Conservative, Reform, and Reconstructionist movements. This steady move toward greater stringency— while it may be bad for Jewish unity—nevertheless reflects kosher certification agency responsiveness to consumer demand among the most active and vocal kosher consumers. Similarly, the refusal of most kosher certification agencies to adopt the even stricter standards advocated by ultra-Orthodox Hasidic communities illustrates their responsiveness to a broader array of kosher consumers.46

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Kosher certification agencies provide better inspection and monitoring coverage of the kosher food industry. For government, kosher inspection and monitoring are a financial burden. By contrast, for kosher certification agencies, inspection and monitoring generate fees. Thus, unlike government regulators, kosher certification agencies have a strong economic incentive to expand their coverage.47 Moreover, kosher certification agencies are not limited by state or national boundaries, making it possible for them to provide on-site inspection around the world. In addition, kosher certification agencies are also motivated by a religious mission that, according to former head of the OU Trademark Compliance Department Rabbi Baruch Cywiak, “has zero tolerance” for adulteration and mislabeling of kosher food.48 The reach of kosher certification agencies is extended by an active national network of religiously observant Jewish consumers who are vigilant in checking retail-product labels and reporting irregularities to local rabbinic authorities and Big Five agencies through their telephone hotlines and websites.49 The role of active consumers in helping agencies monitor food companies is illustrated by the story of an OU-certified company that made cookies-and-cream ice cream with cookie pieces in it. One day, the company notified OU executive rabbinic coordinator Rabbi Yaakov Luban that it had received a new account from a client who wanted cookiesand-cream ice cream made with real Oreos, which at the time were made with lard and were therefore not kosher. The company promised to keep the Oreo cookies-and-cream production separate from the kosher production, and the OU, after much deliberation, allowed the arrangement. Several months later, a kosher consumer called the OU and reported that while eating OU-certified cookies-and-cream ice cream she discovered Oreo cookie pieces in it. As a kosher consumer, she knew that Oreos were not kosher certified. Luban went to the company and requested ten boxes of cookies-and-cream ice cream, took them back to the OU offices, and put them under the faucet to melt off the ice cream, whereupon he discovered Oreo cookie pieces in all ten boxes.50 Consumers also frequently alert agencies to unauthorized use of their symbols. For example, consumers call agency hotlines to report that products labeled pareve list dairy ingredients on the package or that the kosher symbol appears strange in some respect.51 Kosher certification agencies are more proactive and prospective than government agencies. Whereas most state kosher regulators are merely reactive to complaints, kosher certifiers actively seek out problems before they affect consumers and set new policies to avoid trouble later. State

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law-enforcement agencies typically wait to intervene until a major scandal attracts widespread public attention and achieves agenda priority within the agency. By contrast, kosher certification agencies are more likely to act as soon as a problem arises and to be involved in an ongoing basis to correct it. For example, concerns about the use of nonkosher enzymes in producing butter from whey left over from cheese production were first raised by kosher agencies that promptly set new policies regarding butter certification before consumers were widely affected.52 Kosher certification agencies are more willing and able to engage in problem solving. Eager to preserve lucrative agency-client relationships and to expand the variety and availability of kosher food, kosher certification agencies frequently work with food companies to bring their production operations into compliance. In training sessions, OU executive rabbinic coordinator Rabbi Yaakov Luban explains to mashgichim that their role is not to be “inspectors or detectives who comb the facility with a large magnifying glass . . . to catch infractions, but to assist company personnel to comply with kosher requirements.”53 Regulation by kosher certification agencies facilitates cooperation by companies. Within the ongoing agency-client relationship, food companies are eager to satisfy the demands of agencies, upon whom they rely for access to the kosher market. Companies come to see agencies as marketing partners rather than police. Agency efforts to educate industry also help compliance. As Luban explains, “People buy into requirements that they understand, and we therefore consider education to be an integral part of our certification process.”54 Kosher certification agencies have greater flexibility in enforcement. Government regulators limit themselves to imposing fines. Although some kosher fraud laws empower state officials to imprison violators, in practice they never do. By contrast, kosher certification agencies have the power to deprive companies of kosher certification and, therefore, access to the kosher market. When an agency withdraws certification from a company for serious kashrus violations, other agencies will typically steer clear of the company, and kosher consumers will no longer purchase the company’s products. Even inadvertent violations can do serious damage to a company’s reputation for trustworthiness among kosher certification agencies and kosher consumers. “Companies that lose their certification— no one’s going to touch them with a ten-foot pole,” explains Rabbi Benjamin Shandalov, former director of the CRC and AKO founder.55 The ability of kosher certification agencies to influence a company’s reputation provides a powerful incentive to comply with their demands. Armed with the ultimate power to deprive companies of access to the kosher

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market, kosher certification agencies have available a wide variety of less drastic enforcement options, which they can calibrate and escalate to most effectively promote compliance. Agencies issue warnings and reprimands to companies and order specific corrective action. They retroactively decertify products and instruct companies to recall them when there is a risk that consumers might mistakenly eat nonkosher food or might mix meat and dairy foods. An agency need only notify supermarkets in order to effect a “lockdown,” whereby the supermarkets program their checkout scanners to reject the purchase of particular products. Since supermarkets are typically indemnified against recall losses, they are willing to cooperate. Agencies can also quickly alert consumers through their newsletters, magazines, websites, and extensive social networks. Sometimes an agency will sue a company for breach of the supervision agreement in order to obtain a temporary restraining order that prevents the company from marketing a product that is adulterated or mislabeled. An agency might also file a trademark infringement action to stop a company’s unauthorized use of the agency’s symbol. Interestingly, fines are the one sanction that kosher certification agencies refrain from using for fear that they will be interpreted as bribes.56 Kosher certification agencies can impose more powerful sanctions. While large companies might easily absorb a $10,000 government fine, the prospect of losing access to the kosher market for a product is serious business for even the largest food manufacturers. Leading kosher marketing analyst Menachem Lubinsky estimates that typically 2 to 20 percent of a product’s sales are attributable to kosher certification. He cites the example of Dannon yogurt, whose marketing director claims that, following OU kosher certification in the early 1990s, the company’s sales increased $2.2 million in two months. Coors Brewing Company reported that, following kosher certification of its beer, the company’s market share increased between 2 and 18 percent in different markets nationwide. For larger companies with multiple product lines under supervision, withdrawal of certification could cost tens of millions of dollars in sales.57 Kosher certification agencies are more efficient. Competition among agencies provides incentives for them to cut costs in order to keep their fees as low as possible while at the same time maintaining high standards in order to protect their brand value. By relying primarily on informal sanctions, kosher certification agencies do not incur the costs associated with passing legislation, making administrative rules, filing enforcement actions, establishing guilt in legal proceedings, and defending appeals. Moreover, kosher certification agencies generally have a more cooperative relationship with the companies that they regulate,

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and they receive help from social networks that provide information and market pressure.58 Kosher certification agencies enjoy a high level of community support. Private agencies are part of a larger community network within which they provide education and information about kashrus. These efforts equip kosher consumers to help agencies carry out their regulatory mission. Kosher consumers complement the enforcement efforts of agencies by independently investigating and reporting problems. They also enhance the power of reputational sanctions by monitoring agency publications for alerts and passing along information to other consumers.59 Finally, kosher food certification provides a compelling example of private regulation because government regulation in this area is especially weak. Outside of New York, New Jersey, and Maryland, the political constituency for kosher regulation is small and not sufficiently powerful to demand effective government regulation. Moreover, within crowded state regulatory agendas, kosher food regulation must compete with many other areas of food regulation and consumer protection. In addition, government regulation of kosher food suffers from resource constraints as states trim their budgets. Furthermore, constitutional constraints on government involvement in religion have increasingly limited government regulation of kosher food merely to insisting that food sellers disclose their kashrus standards—without any regard for what those standards are. By contrast, private kosher food regulation is not limited by these factors. Private regulation of kosher food does not require a political constituency, legislative approval, or influence with government officials. So long as there is sufficient consumer demand, kosher certification agencies are likely to provide private regulation, motivated by a mix of profitability and a sense of religious mission. In addition, private certification agencies’ number-one priority is protecting consumers from adulteration and mislabeling of kosher food. Moreover, regulatory activity does not tax private agencies’ resources. Instead, it generates income. Finally, the Constitution’s constraints on government involvement in religion do not restrict the right of private agencies to promote particular standards of kashrus; they protect it. It is important, however, not to overstate the case for private regulation of kosher food. While kosher certification agencies play a leading role in regulating kosher food, government provides essential support. Government provides the laws and court systems that make it possible for kosher certification agencies to pursue contract and trademark claims. In this way, private regulation operates in the “shadow of the law.” In rare cases of intentional misconduct by uncooperative companies, state

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regulators can subpoena information, order the seizure of goods, and impose criminal sanctions. In addition, courts can award compensation to consumers who fall victim to kosher fraud.60

Maintaining the Integrity of Kosher Certification Agencies The early history of kosher certification in the United States is rife with examples of corruption—consumer fraud, price-fixing, and racketeering— in which certifiers were frequently complicit. While organized crime in kashrus is a thing of the past, there remain concerns about the integrity of the kosher certification system. Assessing the system’s integrity, however, is not easy. Beyond isolated anecdotes, there exist no data on corrupt practices among kosher certification agencies. More fundamentally, there is disagreement about whether certain forms of conduct constitute corrupt practices in the first place. While insufficient data and definitional ambiguities make a comprehensive assessment of corruption among kosher certification agencies difficult, it is nevertheless possible to broadly characterize controversial practices, offer a sense of the scale on which they occur, and identify institutional rules, structures, and practices designed to discourage them. These rules, structures, and practices constitute a highly developed system of selfregulation designed to ensure the integrity of kosher certification.

Corruption among Kosher Certification Agencies Industry insiders claim that intentional fraud by agencies that knowingly certify nonkosher products no longer happens, and there are no reports of substantiated allegations.61 There remain, however, allegations that agencies engage in other forms of corruption. These allegations can be divided into three broad categories: unnecessary certification, lax supervision, and unfair competition. Allegations of unnecessary certification are typically contested due to disagreement over whether the products in question require certification. For example, since bottled water and aluminum foil could be manufactured in ways that would render them nonkosher, some agencies certify them. It is unclear at what point the risk of adulteration is so remote that certification becomes misleading. Another example is the OU’s certification of whole, unprocessed fresh plums despite the fact that—by all accounts—fresh fruit does not require kosher certification. In response to a consumer inquiry, the OU explained that it certified the plums to assure consumers that they were not coated with wax from a nonkosher source.

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The OU further clarified that its own policy was that such certification was not necessary since it is permissible to eat fresh fruit coated with wax from a nonkosher source even without peeling. The grower, however, was eager to appease consumers with stricter kashrus standards and contracted with the OU to certify that the plums were not coated with wax from a nonkosher source.62 One might argue that this practice misleads the majority of kosher consumers, for whom certification is unnecessary, to conclude that it is required. Alternatively, one might view this practice as protecting consumers with especially stringent kashrus standards. Critics also point to kosher certification of bleach or floor cleaner, neither of which is a food product or likely to come into contact with food—which means that they are not subject to the laws of kashrus. In their defense, agencies that certify household cleaners explain that companies want certification on products that they know do not require certification under Jewish law because certification serves as an endorsement that increases sales among kosher consumers.63 Allegations of lax supervision charge agencies with inadequate oversight of food production. Derelict supervision throughout the 1990s by the OU mashgiach at Freshwater Fish Marketing Corporation provides a recent example of this kind of corruption. Rabbi Moshe Heisler, the kashrus administrator of the Scroll-K Vaad Hakashrus of Denver and former executive director of AKO, recalls another example. He served as an OU mashgiach for twelve years at a food company that had dual certification, but during that time no one from the other agency ever showed up.64 Not all cases are so egregious, and allegations of lax supervision are frequently contested. Industry standards for adequate supervision are set by the Big Five and AKO, and not all agencies accept them. Nonconforming agencies often argue that Big Five industry standards are unnecessarily stringent and that they require resources beyond the reach of smaller agencies. Moreover, as discussed in the previous chapter, judgments about the reliability of other agencies are informed by political considerations such as rabbinic status, market power, and personal networks. Those accused of lax supervision often dismiss allegations against them as based on politics rather than specific industry standards uniformly applied to all agencies. Allegations of unfair competition are also a source of controversy among kosher certification agencies. The term “unfair competition” is used loosely in the world of kosher certification, where it often refers to an undefined mix of overlapping concepts in civil law, Jewish law, and professional ethics.65 In a typical case, Agency A will refuse to accept the certification of a certain product by rival Agency B. Agency A may also

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alert consumers that the product is “not recommended.” As a result, the company that makes the product terminates its contract with Agency B, and it may even switch its certification to Agency A. Agency B accuses Agency A of using kashrus standards as a cover for poaching clients, while Agency A insists that it is merely upholding industry standards and protecting consumers. OU dominance of kosher beef certification illustrates this dynamic. Almost all kosher beef production in the United States is supervised by the OU, normally in conjunction with another agency, frequently a smaller Hasidic slaughtering operation that employs stringent standards required by certain ultra-Orthodox communities. The OU maintains its dominance, in part, by impugning the reliability of beef certified by its rivals. According to a prominent industry expert, “there have been attempts where people try to break out, and they fall flat on their face . . . because the OU has the clout to tell all the local va’adim it’s not under the OU . . . and if the local va’ad finds that it is not under the OU, they’ll tell everybody ‘don’t buy the meat.’ ”66 The OU also has a policy requiring that food-service operations and retail stores under its certification accept only OU-certified beef.67 The OU maintains that it got into kosher beef certification in order to raise standards and protect consumers. For more than a century, from the mid-1800s to the mid-1900s, kosher beef production was rife with fraud and corruption. In the early 1970s, the OU was eager to address this problem. Consistent with the OU’s efforts to centralize kashrus certification more generally, Rabbi Berel Wein, who succeeded Rabbi Alexander Rosenberg as director of the Kosher Division in 1972, extended the agency’s reach into kosher meat certification. As the individual rabbis providing certification for major beef producers began dying off, the OU successfully obtained their clients. According to Wein, OU beef and poultry certification during his tenure operated at a loss and was subsidized by revenues from more profitable industrial certifications. The goal was simply to improve the reliability and availability of kosher meat.68 The OU’s efforts to eliminate corruption in kosher beef production have paid off, according to kosher industry analyst Menachem Lubinsky. “The policing by kashrus agencies—particularly of the meat industry— has become extremely, extremely tight and effective. Here and there something will slip through . . . but they continue to tighten up the supervision . . . so the type of fraud that was inherent when the butcher was responsible for also certifying the kashrus does not exist today.”69 According to OU rabbinic coordinator Rabbi Seth Mandel, other agencies lack the technical expertise and the institutional resources to

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reliably supervise modern industrial slaughtering and meatpacking operations.70 The OU’s dominance of kosher meat certification has generated resentment among its rivals and charges of corruption. “There is a mafia that controls the kashrus in the meat in America, and they don’t let any other organizations get in . . . so we have never been able to get in there,” says Rabbi Don Yoel Levy, who directs OK. Referring to the OU’s practice of requiring the OU as a secondary certification, Levy complains that “you have to pay an extortion racket in order to get your meat into places. You have to have a certain certification in order to get into meat. . . . In order to get into their places, you must take the OU. You can have the best certification, but if you don’t have the OU, they will not let you in.”71 (Further details of the controversy over OU dominance of kosher beef certification are discussed in Appendix A.) Other agencies are also subject to allegations of unfair competition, especially when they acquire industrial clients previously certified by a different agency. In some cases, agencies accuse their rivals of poaching clients through aggressive solicitation. While every agency insists that it does not solicit clients certified by other agencies, they all accuse rival agencies of doing so. “Kashrus today is about power and money,” laments Levy, “and unfortunately, it’s extremely competitive. Instead of people working together to improve kashrus, everyone tries to get business away from the other one.” “Over the years, people have solicited our accounts, but if somebody [in my organization] solicits an account, I will frown upon it and will not let them do it. Okay? That’s the policy here.”72 Rabbi Aryeh Ralbag of Triangle K asserts that “I will not take a hashgocha [certification account] . . . of another organization without their permission, and if they don’t want to give permission, I don’t take the hashgocha,” but the other agencies “send their mashgichim and local rabbis [into Triangle K–certified facilities] to change hashgocha—they go in and they solicit.”73 “The CRC is proud to be the only agency left that doesn’t solicit,” declares CRC rabbinic administrator Rabbi Sholem Fishbane, who, as AKO’s executive director, fields calls from other agencies complaining about poaching by other AKO members.74 Agencies also accuse their rivals of poaching clients by exerting supplychain power to pressure suppliers to switch certifications. “Sometimes organizations will try to encourage a customer of theirs that is using an ingredient in large quantities to try and influence the supplier of that ingredient to come under their supervision. That’s a practice that’s highly frowned upon. It’s not considered an ethical practice,” explains Star-K president Dr. Avrom Pollak.75 “Now Levy does that sometimes,” asserts

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the head of a major agency, referring to Rabbi Don Yoel Levy of OK. “He did that to the Kof-K. For example, IFF [International Flavors & Fragrances] was a major flavor company [certified by Kof-K] . . . and he used his leverage with Kraft [which was under OK certification]. If you wanted to sell to Kraft . . . you would have to have OK on the flavor company also.”76 Levy vigorously denies the charge, claiming that Kraft insisted that it would accept IFF ingredients only if they remained under OK certification.77 Finally, subcontracting and consolidation within the food industry also give rise to allegations of poaching. In a typical case, a small food manufacturer under the supervision of a local va’ad kashrus enters into a contract to make a product for a larger company to be sold under the larger company’s label—for example, as a supermarket store brand. The larger company insists on certification by the same Big Five agency that certifies its other products, and this causes the small food manufacturer to switch its certification from the local va’ad to the Big Five agency. A similar dynamic occurs when a larger company certified by one agency acquires a smaller company certified by another agency, and the larger company desires to have all of its products certified by a single agency. In these cases, the agency that loses the client frequently accuses the agency that acquires the client of poaching. The agency acquiring the client responds that the change is simply the natural result of company growth or consolidation. What exactly is going on in all of these cases and whether it constitutes unfair competition is open to interpretation and is a matter of considerable disagreement within the industry. Moreover, unlike in other industries, many of these disputes cannot be settled by courts insofar as the First Amendment prohibits judges from evaluating the legitimacy of the religious standards offered to justify the conduct in question. In the absence of government oversight or recourse to courts, the kosher certification industry must regulate itself. And it does.

Efforts to Reduce Unnecessary Certification, Lax Supervision, and Unfair Competition The kosher certification industry regulates itself. AKO has provided a forum for the development of industry standards for supervision and competition. These standards are enforced informally through a mix of reputational sanctions, industry culture, and structural features of kosher certification.78 In 1992, AKO announced a set of fair-competition guidelines providing that no agency shall certify a product previously certified by another

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agency before first obtaining assurance from the previous agency that the company making the product was not in violation of any kashrus policy of the previous agency and that it had paid all fees owed to the previous agency. Although AKO lacks any enforcement power, the policy has, at least, articulated a shared set of expectations.79 In 2007, the Big Five and several other large agencies adopted a set of minimum standards for supervision developed by AKO that specify frequency of visitation for different types of food-production facilities, administrative procedures, documentation, information systems, and mashgiach qualifications.80 Although the AKO’s plans for a system of mandatory, regular peer review to enforce these standards never matured, its efforts have fostered a general expectation in the industry that agencies should be transparent about their supervision standards and practices.81 These industry standards are backed by reputational sanctions. Reputation is extremely important to agencies. An agency’s brand value depends on its reputation among consumers. Its capacity to attract clients depends on its reputation among food producers. And both of these depend on its reputation among other agencies, especially Big Five agencies with significant influence over consumer opinion and supply chains. Each agency, thus, has a powerful incentive to avoid mistakes and misconduct that could damage its reputation.82 The industrial kosher certification system produces a constant flow of reputational information, which is central to doing business since each agency needs accurate reputational information about other agencies on which it relies. Mistakes and misdeeds by an agency certifying ingredients can damage the reputation of agencies that rely on the kosher status of those ingredients later on in the production process. Moreover, scandal caused by one agency damages the image of kashrus certification as a whole. Competition for clients provides agencies incentive to uncover and publicize information about sloppy supervision or other questionable conduct by rival agencies.83 In addition, a core of vigilant kosher consumers motivated by personal religious commitment to kashrus uncovers agency mistakes and wrongdoing and reports them to independent kashrus watchdog groups, such as Kashrus magazine and kashrut .org, to local rabbinic authorities, or to Big Five agencies.84 A highly developed kashrus media network disseminates all of this reputational information rapidly and widely, and social networks then spread it even further.85 Industry standards are also supported by industry culture, which refers to a set of shared assumptions, interests, and values that shape the way kosher certification agency personnel think and act.86 Professionalism is

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one aspect of industry culture that promotes adherence to industry standards. Kashrus professionals rely on industry standards to define what it means to be a professional and to distinguish themselves from the local pulpit rabbis whom they have replaced.87 A sense of religious mission is another aspect of industry culture that promotes adherence to industry standards. Agencies aspire to increase the availability and variety of reliably certified kosher food as a way to facilitate kashrus observance among Jews, and they seek to protect kashrus-observant Jews from even inadvertent consumption of nonkosher food. Professionalism and this sense of religious mission also produce peer pressure to conform to industry standards.88 In addition to reputational sanctions and industry culture, structural features of kosher certification promote adherence to industry standards. Within agencies, multilevel management oversight increases vigilance and reduces mistakes, and the separation of kashrus policy and business decisions reduces conflicts of interest that might erode adherence to standards.89 In addition, agencies’ relationships with their food-company clients are heavily influenced by consumer perceptions—a triangulation of the agency-client relationship that reduces conflicts of interest that might harm consumers. Although agencies receive their fees from food-company clients, their brand value depends upon their reputation among consumers. And from the perspective of food companies, certification is a worthwhile cost only if the company pays sufficient fees to obtain certification that is considered reliable among kosher consumers. An agency and a food-company client that colluded to cut corners or provide unnecessary certification would risk damage to the agency’s brand value and the company’s access to the kosher market.90 Supply-chain interdependence among agencies also promotes adherence to industry standards by increasing the value of each agency’s certification the more it adheres to common standards.91 Finally, barriers to entry screen out individuals and agencies less likely to be committed to industry standards. Only religiously observant Jews with sufficient ne’emunus—whose certification will be accepted by other agencies—can make it in the kosher certification industry.92 The precise extent of fraud and corruption in kashrus may never be known. The evidence and analysis presented in this chapter suggest that it still occurs but not on anything like the scale that it did prior to the rise of private kosher certification agencies. It seems safe to say that these private kosher certification agencies have made significant advances in regulating kosher food production and self-regulating kosher food certification since the early decades of the twentieth century, when widespread fraud and corruption were rampant in kosher meat production.

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Today, the industrial kosher certification system is a successful model of private regulation, operating without any direct government involvement in the enforcement of kashrus standards. This chapter has identified the comparative institutional advantages that private kosher certification agencies have over government regulation of kashrus and that account for their success in protecting consumers from adulteration and mislabeling of kosher food. The chapter has also identified the means by which the kosher certification industry polices its members to prevent agencies from cutting corners, defrauding consumers, and engaging in unfair competition. The analysis turns next to how this understanding of industrial kosher certification can be used to enhance the performance of private certification in other areas of food regulation.

Conclusion Industrial Kashrus as a Model of Private Third-Party Certification

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abbi Zushe Blech recalls being introduced as a speaker on biotechnology and religion at an annual convention of the Institute of Food Technologists. The moderator of the session described him as a leading expert in industrial kosher certification and teased him that he should consider returning to school for a formal degree in food sciences. “So I got up,” remembers Blech, “and said, ‘Thank you very much for your kind words, but you should know that I already have a university degree. It is in political science—which is far more useful in kosher certification than a food sciences degree.”1 Blech’s remark reflects the importance of interpersonal relationships in the world of kosher certification. While “there is still a lot of rivalry,” he explains, “everybody talks to each other; everybody communicates on an ongoing basis; everybody is concerned with what the other organizations are doing because you can’t operate without relying on everybody else.” As Kof-K founder Rabbi Harvey Senter puts it, “Kashrus is based on ne’emunus [trustworthiness].” Says Rabbi Zecharia Tzvi Goldman, CEO of Earth Kosher: “Your reputation is everything in this business.”2 The American industrial kashrus system includes private certification agencies, industrial food manufacturers, and kosher consumers, who engage in market exchanges with each other and are joined by bonds of trust that, in conjunction with reputational sanctions, maintain reliable kosher certification standards. This chapter identifies key features of the industrial kosher certification system that account for its success. One set of features is related to the structure of the market for kosher certification services. These features include the profitability of kosher certification,

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brand competition among certifiers based on reliability, and a high degree of interdependence among certifiers. A second set of features is related to social relations among participants in the kosher certification system. These features are a sense of common purpose and a complex network of interpersonal relationships. While it is helpful to distinguish these two sets of features, it is also important to appreciate that they are closely intertwined—the market for kosher certification services relies heavily on trust and reputation, which are embedded in social relations.3 The industrial kosher certification system’s success provides a model that can be used to improve the reliability of private third-party certification in food safety and labeling. The example of kosher certification suggests ways in which private food-safety audits, nutritional-labeling systems, and ecolabeling can be developed in order to overcome the conflict of interest that arises when a certifier is paid by the company it certifies. Private third-party certification emerges when there is market demand for it. Unfortunately, competition among certifiers frequently leads them to lower their standards in order to reduce the costs of their services and ease the requirements they place on the companies they certify. The success of kosher certification demonstrates how market structure and social context can prevent this race to the bottom. Under certain conditions, it is possible to sustain a market for reliable private certification.4 Moreover, reliable private certification can complement government regulation in the areas of food safety and labeling in order to improve regulatory outcomes. While federal and state agencies have accomplished much in these areas, regulatory outcomes have fallen short of public expectations.5 Efforts to achieve marginal improvements through legislation and administrative rule making are frustrated by limited agency resources and industry resistance to paying the costs of additional regulation, which are endemic features of our regulatory system.6 The success of industrial kosher certification suggests that a well-developed system of private third-party certification—which produces high standards, robust enforcement, and industry compliance—can be an effective strategy for achieving these marginal improvements. I am not claiming that private certification is always superior to government command-and-control regulation or that private certification is well suited to address every regulatory challenge. Nor am I suggesting that private certification and government regulation are mutually exclusive. I am also not arguing that kosher certification ensures food safety or nutritional value.7 Rather, my claim is that, under specifiable market and social conditions, private third-party certification offers comparative

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institutional advantages that would make it more effective than government command-and-control regulation in achieving marginal improvements in the regulation of food safety and labeling.

Distinguishing Industrial Kosher Certification from other Forms of Private Regulation The industrial kosher certification system has done a comparatively good job of overcoming the familiar problems of inadequate resources and industry resistance, which frequently limit government regulation. It has also greatly reduced the financial conflict of interest that undermines the effectiveness of private-sector alternatives. To understand the features of industrial kosher certification that account for its success, it may be helpful to distinguish it from two other common forms of private regulation. Kosher certification of industrial food products is not a form of selfregulation, which typically involves a company, or a group of companies acting through a trade association, that develops and adopts regulatory standards. By contrast, in industrial kosher certification, regulatory standards are developed and enforced by independent third-party agencies that are not members of the regulated industry. Kosher certification is also not a form of coregulation, in which government encourages private regulation while monitoring it to assess its performance and stepping in to assert regulatory jurisdiction when private regulators fail to produce acceptable regulatory outcomes. While state regulators in New York and New Jersey play a limited role in ensuring the accuracy of representations of kosher certification, government plays no role in the development or enforcement of kosher standards. Thus, insofar as kosher certification agencies are independent of the industry that they regulate and not subject to government oversight, kosher food certification is neither a form of self-regulation nor coregulation but rather third-party regulation.8 In many contexts, private third-party regulation has a number of advantages over government regulation. Neil Gunningham, a leading scholar on environmental regulation, points out that private auditors are often more knowledgeable and diligent than government inspectors and that the regulated industry rather than government bears the costs of private third-party regulation. Gunningham cautions, however, that it can be difficult to ensure the professional integrity and independence of third-party auditors who are paid by the companies seeking certification. This problem is exacerbated, he explains, by the frequent absence of professional qualifications and auditing standards agreed upon by all private auditors.

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Moreover, regulated companies may exert pressure on auditors not to reveal any negative results of a private audit.9 In the case of kosher certification, the market structure and the social context in which the market operates combine to promote integrity and independence. Kosher certification is, thus, a self-regulating system of third-party certification.

The Market Structure of Industrial Kosher Certification There are five features of the market for industrial kosher certification that account for its success in providing reliable private third-party certification. First, there is sufficient consumer demand for kosher certification that food manufacturers are willing to open production facilities to certifiers and pay for their services. The low unit cost of industrial certification and the added sales to kosher consumers make certification a good deal for companies. Substantial inspection fees and low start-up costs have attracted a growing number of certifiers—currently more than three hundred in the United States and more than one thousand worldwide—and generated robust competition among them.10 Second, brand competition among certifiers based on reliability has led to increasing professional expertise, institutional integrity, transparency, and conformity with industry standards. Efforts to build brand value have led agencies, especially the Big Five, to provide extensive training to their inspectors in kosher law, food chemistry, and food technology. Agencies have also enhanced brand value by developing middlemanagement oversight, ethical codes of conduct, and institutional separation of decisions related to kashrus standards from those related to business development to avoid conflicts of interest. A number of agencies have boosted their brand value based on their willingness to respond openly to consumer questions and concerns. Fear of damage to an agency’s brand accounts for widespread adherence to industry standards among large and small firms alike.11 Third, kosher certification agencies are highly interdependent, which gives them incentive to conform to industry standards and to make sure that other agencies do so as well. The value of an agency’s certification of a food ingredient depends on its acceptability to other agencies certifying products that include the ingredient downstream in the production process. This means that upstream certifiers must meet standards set by downstream certifiers. In turn, downstream certifiers are vulnerable to mistakes by upstream ingredient certifiers, which have the potential to render nonkosher all products made with improperly certified ingredients.

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Downstream certifiers carefully monitor upstream certifiers to ensure that their standards are acceptable and their inspection routines reliable. Since agencies typically certify different products at different stages of the production process, they operate both upstream and downstream relative to other agencies, creating a network of interagency oversight. Agencies are also interdependent in the sense that public scandal caused by one agency tends to undermine public confidence in kosher certification more generally, which gives agencies additional incentive to monitor each other and exclude those who fail to meet industry standards.12 Fourth, the concentration of market power in the hands of a few large certifiers—the Big Five, who control 80 percent of the certification market—makes it easier to coordinate the development and enforcement of industry standards. Informal and AKO discussions allow input on standards from a wide range of agencies. In the end, however, the views of Big Five agencies dominate, typically producing consensus. The concentration of market power in the hands of Big Five agencies allows them to exercise supply-chain pressure on upstream ingredient certifiers to conform to industry standards. Big Five agencies themselves are kept in line through this supply-chain pressure, as well as peer pressure and concern for their reputations as brand leaders. Competition for industrial clients is such that Big Five agencies that falter are likely to rapidly lose clients to rivals.13 Finally, a core of active and vigilant consumers produces, monitors, and disseminates reputational information. Of the twelve million kosher consumers, 8 percent are religiously observant Jews who eat only kosher food. This group is highly motivated to monitor the reliability of certifications upon which they depend, and they are a source of information to Big Five agencies concerning mistakes and misconduct in the industry.14 Many of these consumers also closely monitor agency publications for alerts concerning improperly labeled products or unreliable certifications, and they disseminate this information through social networks. Agencies’ relationships with their food-company clients are influenced heavily by this consumer vigilance, a triangulation of the agency-client relationship that reduces conflicts of interest that might harm consumers. While agencies receive fees from their food-company clients, their brand value depends upon their reputation among consumers, which makes them careful not to lower standards or cut corners. From the perspective of food companies, certification is a worthwhile cost only if the company obtains a certification that is considered reliable among kosher consumers. Companies that cut corners risk a loss of credibility

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among kosher consumers that would undermine their access to the kosher market.15

The Social Context of Industrial Kosher Certification There is no denying that kosher certification is a business. But it is not just a business. For the rabbis who manage certification agencies and their mashgichim, it is also a way to serve God and the Jewish people—a sacred trust. Agency personnel are bound by a set of cultural norms that define a shared mission that transcends interagency rivalries. Gunningham and Rees refer to this kind of common ethos as an industrial morality.16 The industrial morality of industrial kosher certification is rooted in ancient Jewish theology, ethics, and religious practice, and it has been cultivated through contemporary efforts to professionalize kosher certification. Industrial morality reinforces economic incentives to avoid misconduct and mistakes, and it fosters trustworthiness and cooperation among agencies, which are essential to self-regulation of the kosher certification industry.17 In addition to industrial morality, personal interaction is an important feature of the social context of kosher certification. At AKO meetings, participants from different agencies socialize and pray together. The rabbis who manage certification agencies also frequently hold positions of authority in their local Jewish communities, many as congregational rabbis or respected teachers, interacting closely with community members who are also kosher consumers. Agency personnel form personal bonds with their food-industry clients, many of whom they have been working with for decades. Personal ties also exist among religiously observant kosher consumers, ranging from close connections between congregants to more extended Internet exchanges carried on through postings on kosher-food websites. These various relationships constitute a complex network that enhances the regulatory performance of the kosher certification system. Interpersonal networks within agencies, food companies, and consumer communities are overlapping and interconnected, with individuals simultaneously belonging to different networks, often in multiple capacities that serve a variety of interests.18 For example, rabbinic administrators direct operations within their own agencies, are in frequent contact with peers at other agencies, have extensive personal contacts within the food industry, and frequently serve as pulpit rabbis or teachers in local Jewish communities. They perform many different functions within these

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networks: they render legal rulings, make business decisions, negotiate contracts, develop industry norms, train industry personnel, deliver public lectures, give sermons, and provide pastoral counseling. Several features of this complex network enhance its regulatory performance. The extent to which rabbinic administrators and managers all know each other increases social pressure to conform to industry standards. Network theory refers to this as “network density” and defines it as the proportion of links between individuals to the total number of possible links within the network. High network density among rabbinic administrators and managers constitutes a “small world” that strengthens industrial morality and increases social cohesion within the group.19 Extensive interpersonal links within and between agency, food company, and consumer networks facilitate the diffusion of consumer alerts and reputational information. Relationships between acquaintances are especially useful in passing information between tight-knit groups that otherwise might be too insular to receive information from outside the group or to disseminate it beyond the group. Sociologist Mark Granovetter refers to this as “the strength of weak ties” and explains that “[m]ore novel information flows to individuals through weak than through strong ties. Because our close friends tend to move in the same circles that we do, the information they receive overlaps considerably with what we already know. Acquaintances, by contrast, . . . [m]oving in different circles from ours . . . connect us to a wider world.” Weak ties, concludes Granovetter, “are much more likely than strong ones to play the role of transmitting unique and nonredundant information across otherwise largely disconnected segments of social networks.”20 Viewed from this perspective, hits on kosher websites and Internet exchanges constitute weak ties that greatly enhance the effectiveness of consumer alerts and reputational sanctions. To summarize, the industrial kashrus system offers a model of private third-party certification that provides reliable consumer protection from adulteration and mislabeling of kosher food. The structure of the market for certification services creates economic incentives for certifiers and food companies to maintain standards that satisfy consumers. A highly developed industrial morality among certifiers provides social norms that reinforce these economic incentives, and a complex network of interpersonal relationships puts social pressure on certifiers to adhere to these norms. This complex network also widely and rapidly disseminates consumer alerts about adulteration and mislabeling as well as reputational information about certifiers and food companies.

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Addressing Objections about the Legitimacy of Private Regulation and the Replicability of Kosher Certification’s Success Two potential concerns about kosher certification as a regulatory model deserve careful consideration. The analysis so far has focused on kosher certification’s effectiveness. One might still question the legitimacy of regulation by private entities or the replicability of the kosher certification model in other areas of regulation. Some scholars have questioned the democratic legitimacy of private regulation. One study by Doris Fuchs, Agni Kalfagianni, and Tetty Havinga evaluated the democratic legitimacy of private standard setting in the retail food industry aimed at promoting consumer protection, fair labor practices, and sustainable farming. Fuchs et al. defined democratic legitimacy in terms of participation, transparency, and accountability. They found that “decision-making bodies frequently do not allow participation by all groups affected by these standards” and that resource disparities “prevent equal participation.” Moreover, they observed that many standard-setting bodies are not open about their processes and publish limited information about the issues they address. Finally, they discerned a lack of accountability in terms of external audits and performance reviews available to consumers and the general public. “[I]t should not come as a surprise,” they concluded, “that most private food standards primarily reflect the interest of retailers in minimizing the risk of scandals and marketing their products. . . . The result of our analysis of the democratic legitimacy of private retail food governance, then, is not an optimistic one.”21 Before accepting this bleak appraisal of the democratic legitimacy of private regulation, one ought to ask how private regulation compares to other options. A fair evaluation of any regulatory approach requires the recognition that it is always one among a number of imperfect alternatives.22 Government regulation also sometimes falls short of Fuchs et al.’s high standards of democratic legitimacy. For example, notice-andcomment rule making by administrative agencies is designed to afford open and equal opportunities to different stakeholders to participate in the formation of regulations. Notice-and-comment rule making also aims to create a public record of the basis for decision that can support oversight by elected officials and court challenges by private parties. In practice, however, the rule-making process can be heavily influenced behind the scenes by industry stakeholders. A recent study by Wendy Wagner, Katherine Barnes, and Lisa Peters examined rulemaking by the U.S. Environmental Protection Agency involving standards for the release of air tox-

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ins from major sources. They found that, prior to publication of proposed rules for public comment, agency contacts with affected parties were “extensive” and were “dominated by regulated parties.” During the noticeand-comment period, formal comments came “predominantly from regulated industry,” and changes to the proposed rules reflected this imbalance and generally favored industry. After rules were promulgated as final, regulated parties frequently brought legal challenges and obtained additional revisions in nonpublic settlement negotiations.23 In terms of Fuchs et al.’s criteria of democratic legitimacy, the industrial kosher certification system compares favorably with notice-andcomment rule making as described by Wagner et al. Admittedly, kosher certification agencies do not allow stakeholder participation in setting standards, which are developed in private conversations among agency managers and in closed AKO meetings. At the same time, agency magazines, books, websites, hotlines, and social networks promote considerable transparency aimed at informing food companies and kosher consumers. Agencies explain in great detail the reasoning behind their latest kashrus policy decisions in a steady flow of articles published in magazines and posted on websites. For example, the OU has posted on its website explanations of the basis for certifying aluminum foil and bottled water.24 It has also published a series of books detailing its certification standards and policies in the oil, baking, fish, and produce industries.25 Agency hotlines field questions about standards and policies, and agency personnel regularly make presentations, conduct panel discussions, and hold question-and-answer sessions at trade association conferences and in Jewish communities around the country. Kashrus Magazine publishes a directory of more than one thousand agencies with the names of senior management and updates the contact information annually. In addition, kosher certification agencies’ constant concern about the brand value of their services makes them accountable to consumers. An agency that lags too far behind the kashrus standards of religiously observant kosher consumers risks developing a reputation for being too lenient, which damages its brand value. Religiously observant consumers will not purchase products (or products containing ingredients) certified by an agency that does not meet what they consider to be minimal standards of kashrus. As a result, other agencies downstream in the production process will not accept ingredients certified by the agency. This means that the agency’s certification cannot provide food companies full access to the kosher market, and it is unlikely to attract new clients or retain existing ones.26

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Price competition also makes kosher certification agencies accountable to consumers. An agency that exceeds the kashrus standards of most religiously observant kosher consumers risks developing a reputation for being too stringent, which reduces its competitiveness. If the agency’s food-company clients perceive that the agency is imposing production costs—for equipment cleaning or frequent onsite inspection—beyond what is necessary to satisfy most religiously observant kosher consumers, the clients are likely to switch to a less expensive certification that will grant them the same level of access to the kosher market. Excessive stringency may also generate accusations of profiteering—charging for unnecessary procedures or certifying goods that do not require certification—which can damage an agency’s brand value. Religious commitment and social pressure reinforce accountability to consumers. Certifiers who do not adhere to minimum community standards are viewed as committing a grievous sin by leading Jews to eat nonkosher food, and they face condemnation in their local communities and infamy in the larger Jewish community, sanctions that are likely be considered far worse than any loss of business. This mix of market incentives and social norms makes industrial kosher certification resistant to food-industry influence. Lowering standards to accommodate the demands of food companies was a practical necessity in the early years of industrial kosher certification. However, a kosher certification agency that compromises its standards today risks damage to its reputation that could diminish its brand value. Furthermore, aside from the potential financial implications, agencies are concerned about their religious responsibility to kashrus-observant consumers. Rabbi Baruch Cywiak, formerly of the OU Trademark Compliance Department, recounts how the OU demanded that a major industrial client recall within two days a new flavor of sour cream and onion potato chips that was incorrectly labeled pareve. “Although it’s putting our relationship at stress, our prime responsibility is to the consumer.”27 Thus, the example of industrial kosher certification suggests that some forms of private regulation possess a measure of democratic legitimacy in terms of participation, transparency, and accountability that may, depending upon the alternatives, justify their use.28 Aside from the issue of democratic legitimacy, one might question whether the success of industrial kosher certification is generalizable since it relies heavily on an industrial morality and an active consumer culture motivated by a level of religious faith not replicable in other areas of regulation. To be sure, religious faith plays a significant role in deterring misconduct and mistakes by kosher certification agency personnel, and it

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promotes consumer vigilance. One should be careful, however, not to romanticize the power of religious faith or overestimate its distinctiveness from other forms of moral commitment. As Chapter 1 demonstrates, religious faith alone has historically not been sufficient to eliminate fraud and corruption among rabbis and mashgichim. Successive efforts by congregational coalitions, charismatic rabbis, and Jewish communal organizations throughout the late nineteenth and early twentieth centuries to clean up the kosher trade were thwarted by rabbinic rivalry and conflicts of interest. Reform did not succeed until the rise of industrial kosher certification by private agencies. Religious faith has been an effective check on fraud and corruption in kosher certification only when it serves as a complement to market incentives and only when it is embedded in a social context that fosters trustworthiness and imposes effective reputational sanctions. Moreover, other forms of moral commitment have facilitated the formation of powerful industrial moralities, such as the commitment to nuclear safety among U.S. nuclear-power plant operators following the partial meltdown of a reactor in 1979 at the Three Mile Island nuclear plant.29 Nonreligious forms of moral commitment can also fuel an active consumer culture. For example, many vegetarians have an aversion to meat consumption that is no less firm than religious fears of ritual impurity from consuming nonkosher food. For many ethical vegetarians, eating meat is “simply immoral” and “absolutely unforgivable.”30 People for the Ethical Treatment of Animals (PETA) activists hardly seem less zealous about their dietary restrictions and ethical principles than most religiously observant Jews. The organization and its members have a welldeserved reputation for “uncompromising stands on Animal Rights,” and PETA activists have long worn buttons and T-shirts proclaiming that “Meat Is Murder.” A recent PETA ad campaign declares that “Eating Meat Is a Sin.”31 Efforts by the Center for Science in the Public Interest (CSPI) to reduce sugar, fat, salt, and other additives in processed foods are similarly fueled by moral passion reflected in slogans like “Salt: The Forgotten Killer.”32 Benjamin Gutman compares the commitment of organic consumers to kosher consumers by pointing out that the USDA received a record 270,000 written comments in response to proposed organic standards in 1999, more than half as form letters distributed by membership organizations. “These number show,” asserts Gutman, “that organic consumers read organic magazines, belong to organic food cooperatives, shop at organic markets, and even share long-distance and creditcard companies.” A core of committed organic consumers “see themselves as sharing a common identity with others who make the same

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choices.”33 Replicating the features of kosher certification that account for its success requires that private certifiers be committed to being reliable and that consumers demand it. Religious faith is one way to develop industrial morality and consumer vigilance, but it is not the only way.

Private Third-Party Certification beyond Kosher Food Rabbi Harvey Senter likes to tell the story of a little old Jewish woman who rushes with a large pot of chicken soup to help a man suffering from severe injuries after falling from a third-story window. A police officer at the scene says to the woman, “Lady, look up at that window. It’s three stories from the ground. This poor guy fell out of that window. Chicken soup is not going to help him,” to which the woman replied, “It ain’t gonna hurt him!”34 The industrial kosher certification system offers a model that can help improve the reliability of private third-party certification in food safety and labeling. Private third-party certification is not, however, a new wonder drug that can completely cure the complex maladies that ail our food system. Instead, like chicken soup, it can promote marginal improvements in conjunction with other remedies.

Food Safety The Centers for Disease Control and Prevention estimated in 2011 that each year roughly one in six Americans—48 million people—gets sick from foodborne illness. Of these, 128,000 are hospitalized, and 3,000 die.35 Anxiety over food safety has been a perennial theme in American popular and political culture since the beginning of the industrial food revolution more than a century ago. Upton Sinclair’s 1906 novel, The Jungle, which describes in graphic detail working and sanitary conditions in the meatpacking industry, sparked widespread concern about food safety and added momentum to passage of the Federal Meat Inspection Act and the Pure Food and Drugs Act.36 Today, federal food-safety regulation is carried out by a dozen different agencies tasked with inspection, monitoring, enforcement, outbreak management, research, and education. The U.S. Department of Agriculture (USDA) is charged with on-site factory inspection of all meat and poultry sold in interstate commerce. USDA inspectors examine every carcass using sight, smell, and touch to detect problems. The agency currently employs approximately eight thousand inspectors at approximately 6,200 production plants.37 In the late 1990s, the USDA added to its traditional “poke-and-sniff” inspection practices a requirement that

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each plant identify places in its production process that involve a hazard of contamination and institute specific controls to reduce risk at those critical points. For example, a company that produces a cooked-meat product might take the temperature of the meat at critical points such as cooking, chilling, and packaging and maintain records to be reviewed regularly by USDA inspectors.38 This approach to food safety—known as the hazard analysis critical control point (HACCP) system—aims to prevent contamination before it occurs. The Food and Drug Administration (FDA) is also responsible for food safety. Its expansive jurisdiction covers almost all foods sold in interstate commerce in the United States. The FDA’s roughly three thousand inspectors are tasked with oversight of more than sixty-seven thousand facilities that manufacture, process, pack, store, prepare, and vend food. Unlike the USDA’s regime of continual on-site inspection and approval of each product, the FDA relies on periodic visits and administrative sanctions such as warnings, seizures, injunctions, fines, and criminal prosecution. In the late 1990s, the FDA mandated the HACCP approach for seafood and juice production, but HACCP remained voluntary for other foods. In addition to federal efforts, more than three thousand state and local agencies are responsible for regulating foods produced and sold within the same state and in retail food establishments. The FDA frequently relies on states to conduct some of its food-safety inspections under contracts and partnership agreements.39 In response to public outcry over the salmonella outbreak at the Peanut Corporation of America, as well as other outbreaks of foodborne illness involving spinach, tomatoes, peppers, lettuce, alfalfa sprouts, and cantaloupe, Congress instructed the Department of Health and Human Services Office of Inspector General (OIG) in 2009 to conduct a review of FDA food-safety inspection. The resulting report revealed that the FDA inspected less than a quarter of the food facilities that it was charged with overseeing and that more than half of these facilities had gone at least five years without an FDA inspection. Only one-fifth had been inspected three or more times in a five-year period. The report also found that nearly three-quarters of the facilities that were classified by the agency as “official action indicated” (OAI)—owing most commonly to food-safety concerns—had a history of violations. Half of these facilities had been previously cited for the same violation. According to the report, the FDA took regulatory action against only 46 percent of facilities classified as OAI. For the remainder, the agency either revised the classification or took no regulatory action despite agency policy that “when inspectors uncover violations that are significant enough to warrant

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OAI classifications, some type of regulatory action should be recommended.” A subsequent 2011 OIG report found that the FDA had increasingly relied upon states to inspect food facilities but had failed to properly oversee these inspections.40 The Food Safety Modernization Act (FSMA) of 2011 aims to address these shortcomings. The act requires all food manufacturers, processors, and packers to institute HACCP systems and to update them every three years or when making significant production changes. Companies must maintain detailed records and make them available to FDA inspectors. The FDA is required to inspect domestic facilities designated as high risk once every three years and all other facilities once every five years. The act permits the FDA to rely on other federal, state, and local agencies to conduct inspections and mandates that the agency increase the number of its own inspectors to five thousand by 2014. The act directs the FDA to provide professional training programs for state and local food-safety inspectors and to fund educational programming for small and mediumsized food producers. The FDA’s enforcement powers under the act include expanded authority to inspect company documents, order product recalls, and prohibit companies from selling food. Proponents of the FSMA have called it “a historic victory for consumers, who can now look forward to a future of safer food.”41 Not everyone is so optimistic. Skeptics point out that the legislation offers only a broad framework for improving food safety and defers key issues such as specific HACCP standards and inspection benchmarks to notice-and-comment rule-making and guidance documents, which can take years and demand a major commitment of scarce agency resources. Moreover, as Wagner et al. have demonstrated, regulated industry can wield significant influence over the administrative rule-making process. Skeptics also question whether Congress will appropriate the estimated $1.4 billion cost over five years of the act’s numerous mandates. The FSMA was passed in the final days of a lame-duck, Democrat-controlled Congress in late 2010, which was replaced by a Republican majority in the House of Representatives elected on a platform emphasizing fiscal conservatism and small government. Shortly after passage of the act, the incoming Republican chair of the House subcommittee that oversees the FDA’s budget told the Washington Post that “the case for a $1.4 billion expenditure isn’t there.” In addition, FDA commissioner Dr. Margaret Hamburg warned that “[w]ithout more funding, we will be challenged to implement the law fully.” A year after passage of the law, agency officials lamented that “[w]hile Congress greatly expanded the FDA’s regulatory authority, the money to exercise that power has not been forthcoming.”

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In a particularly pessimistic appraisal, former director of the Canadian Food Inspection Agency Ronald Doering asserted that the FSMA “is a model of how not to make food safety law.” Far from “a historic victory for consumers,” Doering opined, “[t]he Americans have laboured long and hard and delivered a mouse.”42 To be fair, even without full funding, passage of the FSMA has given the FDA new legal authority in the areas of inspection and enforcement, and the act’s mandates have placed food-safety reform higher up on the agency’s rule-making agenda.43 At the same time, even with full funding, the FSMA mandates merely one inspection every three years for high-risk facilities and one inspection every five years for all others. It appears likely that limited agency resources and industry resistance to paying the costs of additional regulation will constrain the FDA’s efforts to improve food safety.44 If properly developed, private third-party food-safety audits could complement government regulation and achieve marginal improvements in food safety. Unfortunately, as the Peanut Corporation of America scandal illustrates, economic conflicts of interest undermine the reliability of such audits. Doug Powell, a professor of food safety at Kansas State University, has been highly critical of private third-party foodsafety audits. According to Powell, there are currently about 130 private third-party food-safety auditing firms. Typically, food producers require their suppliers to obtain and pay for their own audits. Powell’s popular blog on foodborne illness—barfblog.com—documents how the Peanut Corporation of America received a “superior” rating from a private auditor during the time that it was knowingly producing peanut products contaminated with salmonella, resulting in nine deaths and thousands of cases of illness. In another case, two Iowa farms produced eggs responsible for a salmonella outbreak that sickened thousands in 2010. There, FDA inspectors found “filthy conditions, from overflowing manure to maggot infestations,” and more than half a billion eggs were recalled. Nonetheless, both farms received “Record of Achievement” audit certificates just before the salmonella outbreak. According to Powell, “almost all outbreaks involve firms that received glowing endorsements from food safety auditors.” Mansour Samadpour, president of IEH Laboratories & Consulting Group, which specializes in food contamination, asserts that “I have not seen a single company that has had an outbreak or recall that didn’t have a series of audits with really high scores.” “ ‘Superior’ clearly doesn’t mean much,” quipped one congressman, “How many dead mice do you have to find in your food before you get an ‘Excellent’ rating?”45

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Irwin Pronk, a private food-safety consultant and barfblog contributor, points to a number of specific problems with private food-safety audits. First, many auditors lack sufficient technical training, industry experience, and people skills to evaluate HACCP systems and perform thorough inspections. According to Pronk, “there is a shortage of knowledgeable, experienced auditors.” Reliable audits require “a deep understanding of the technical issues in each industry.” The auditor who gave one of the Iowa egg farms high marks for food safety received merely two one-week training courses and went out on a few audits with other auditors before being sent out to do audits on his own. Second, some auditors are simply lazy. “It is not in the auditor’s best interest to point out non-conformances since they result in volumes of paperwork and perhaps even return visits to resolve Major non-conformances,” explains Pronk. “As a result, an auditor may choose to downgrade Major nonconformances to Minor, and Minors to Observations.” Moreover, Pronk asserts, many auditors spend too much time reviewing paperwork and too little time in the plant inspecting production operations. Third, both auditors and companies have economic incentives to cut corners. Eager to win competitive accounts, auditors will reduce the cost of their services by lowering their standards. To keep their industry clients happy, auditors will also inflate the ratings they assign to clients. “The pressure on the auditor to ‘improve’ the score can be considerable,” according to Pronk. “[M]oney is changing hands, and this can lead to undue emphasis on competing for business rather than ensuring quality.”46 Powell and Pronk are not entirely dismissive of private food-safety audits. Given the limitations of government regulation and the increasing complexity of supply chains, Powell recognizes that private food-safety audits “are an integral part of the food safety system, and their use will expand in the future.”47 To make audits more reliable, Pronk asserts that auditors “need to combine integrity with excellence.”48 According to Powell, companies should supplement audits with “microbial testing, second-party audits of suppliers and the in-house capacity to meaningfully assess the results of audits and inspections,” which is possible only if companies develop “a strong food safety culture, farm-to-fork.” He also advocates “marketing food safety directly to consumers . . . [as] a way to further reinforce the food safety culture.”49 Thus, Powell and Pronk offer an agenda for reform of private food-safety audits that focuses on raising professional standards, building an industrial culture that makes food safety a top priority, and marketing food safety to consumers.

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Some reform advocates have emphasized the need for greater government oversight of private food-safety audits. In response, the FDA has published a nonbinding guidance document suggesting standards for private food-safety audits, and the FSMA requires the FDA to establish an accreditation system and model auditing standards for private audits of imported foods. But inadequate agency resources and industry resistance are likely to limit government oversight. The example of kosher food certification suggests that reform advocates should also invest energy in building a market structure and social context that will promote effective self-regulation among private third-party food auditors. The reforms proposed by Powell and Pronk, if properly developed and integrated, are a good place to start.50 The example of kosher food certification supports Powell’s assertion that tapping into consumer demand for food safety is essential to reforming private audits. Promoting consumer demand will give food companies an economic incentive to pay for rigorous audits and will thereby make private auditing profitable and competitive. Regulatory scholars Thomas Bernauer and Ladina Caduff suggest that many brand-name food companies already view improving food safety as a way to increase the value of their brands.51 Consumer demand for food safety appears to be growing. Widespread consumer awareness of food-safety issues is reflected in the popularity of best-selling books such as Eric Schlosser’s Fast Food Nation and Michael Pollan’s The Omnivore’s Dilemma, mainstream movies such as Food, Inc., and hundreds of popular food blogs.52 A recent study by researchers at Michigan State University finds that “[c]onsumers are not only aware of food safety issues, they are actually changing their shopping habits due to food safety concerns” and that consumers have “a high recognition of third-party certification as an effective signal of food safety assurance.”53 While Powell cautions that such studies may overestimate current consumer demand since “people overestimate their own food safety behaviors,” he does believe that there is untapped consumer demand for reliable assurances of food safety. “[F]ood safety can be used as a selling point. The food businesses that use the best science to promote microbiological food safety, and couple that with employee commitment, will capture the imagination of a hungry public.” As a consumer, he has more faith in improved private certification than in additional government regulation: “I spend a lot of money at the grocery store . . . why can’t someone give me microbiological data on which to make a purchasing decision? Having more government inspectors does nothing to assuage my food safety doubts.”54

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Growing consumer demand for reliable assurances of food safety is likely to increase brand competition among private auditors. The example of kosher food certification suggests that if this brand competition can be focused on reliability, then it is likely to raise standards. Some sectors of the food industry are already promoting higher food-safety standards. For example, the Grocery Manufacturers Association (GMA), an industry association representing more than three hundred food companies, supported the FSMA and sponsors training programs with titles like “Building Blocks to an Effective Food Safety Plan” to educate its members on practical implementation of the act’s requirements.55 The Global Food Safety Initiative (GFSI) is a nonprofit organization managed by the Consumer Goods Forum, an industry association of more than four hundred food manufacturers that promulgates benchmarks for food-safety systems in order to promote high standards and uniformity. Currently, four food-safety programs meet the GFSI criteria for reliability, and major retailers such as Wal-Mart, Delhaize, Carrefour, Tesco, Metro, Migros, and Ahold require some or all of their suppliers to adopt a foodsafety system that satisfies GFSI benchmarks. These industry standards are designed to improve the reliability of self-regulation and private third-party audits.56 GFSI benchmarks for food-safety systems are a good start insofar as they provide a competitive advantage to auditing firms that adopt higher standards. Pronk cautions, however, that many food companies still put cost considerations ahead of quality in choosing an auditor, leading some auditors to lower their standards in order to obtain accounts, thereby providing what he calls “GFSI-light.”57 Kosher certification illustrates how this kind of industry pressure to cut costs by lowering standards could be counterbalanced by a core of vigilant consumers who generate, monitor, and disseminate reputational information that would discourage brand-sensitive private auditors from cutting corners. Here, too, there are encouraging signs. Food activism is on the rise in America. “One of the most interesting social movements to emerge in the last few years,” writes Michael Pollan, “is the ‘food movement’ . . . unified . . . by . . . the recognition that industrial food production is in need of reform because its social/environmental/public health/ animal welfare/gastronomic costs are too high.”58 Food activists publish popular newspapers and blogs dedicated specifically to food safety and consumer protection.59 The key role played by the 8 percent of kosher consumers who are religiously observant in kosher certification suggests that food-safety activists need not be more than a small percentage of the consumer market in order to effectively exert pressure on private auditing firms to maintain high standards.

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Supply-chain interdependence among food-safety auditors is likely to enhance the power of reputational sanctions that deter auditors from cutting corners. As is the case among kosher certification agencies, private food-safety auditors downstream in the production process depend on the reliability of auditors upstream, and upstream auditors rely on the approval of downstream auditors. This interdependence encourages downstream auditors to police upstream auditors and upstream auditors to conform to the standards of downstream auditors. The example of kosher certification suggests that concentrated market power among a few private auditing firms can facilitate the development and enforcement of improved industry standards. In the field of food safety, the GMA and the GFSI, backed by major retail giants like WalMart and Delhaize, have started to play this role. These organizations, however, are not as independent of food companies as are the Big Five kosher certifiers. The GMA is a food-industry trade association, and the GFSI governing board is composed of food-industry executives.60 Bernauer and Caduff point out that leading brand-name retailers support the GFSI’s uniform standards as a way to limit food-safety competition, which they worry could drive up costs and cause them to lose market share to less brand-sensitive discount competitors.61 The food-safety system would benefit from greater market power in the hands of leading auditing firms whose market shares rest on brands that are based on reliability rather than cost and are highly sensitive to consumer opinion. The example of kosher food certification also supports Powell’s emphasis on industry culture as key to the success of private food-safety audits. An industry culture in which “operators and staff know the risks associated with the products or meals they produce, know why managing the risks is important, and effectively manage those risks in a demonstrable way” provides a social context that reinforces economic incentives to do a good job. In turn, economic incentives can strengthen industry culture. As Powell explains, “Marketing food safety at retail has the additional benefit of enhancing a food safety culture within an organization—if we’re boasting about this stuff, I guess we really better wash our hands” in order to prevent contamination.62 Finally, kosher certification validates Pronk’s advocacy of long-term relationships between companies and auditors. “Some food processors have wisely established a relationship with one certification body, selecting a specific group of auditors, and requiring their suppliers use the approved certification body. These firms are finding more consistent and rigorous audits.”63 Powell lauds the use of new media—webcams, blogs, and social networking sites—that make reputational information widely

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available.64 Developing interpersonal relationships among auditors, food companies, and consumers forges bonds of trust and amplifies reputational sanctions. In a 2011 article titled “Enhancing Food Safety Culture to Reduce Rates of Foodborne Illness,” Powell and academic coauthors Casey Jacob and Benjamin Chapman suggest that “[t]he best food producers, processors, retailers and restaurants should . . . sell food safety solutions directly to the public . . . [and] demand ingredients from the best suppliers [and] . . . use a mixture of encouragement and enforcement to foster a food safety culture.”65 They offer here a proposal for improving food safety by promoting brand competition based on reliability, supply-chain influence, reputational sanctions, and industrial morality—key elements of effective private third-party certification. The success of kosher certification suggests that this approach to food safety holds great promise.

Front-of-Package Nutrition Labeling Food companies have in the past ten years increasingly adopted dozens of front-of-package (FOP) symbols and ratings to indicate that their products have high nutritional value. Some of these symbols and ratings are generated by manufacturers, while others are sponsored by third parties such as trade associations or independent organizations. Ostensibly, the aim of these symbols and ratings is to encourage healthy dietary choices. Frequently, however, FOP nutrition labels promote foods such as highly sweetened cereals, ice cream, and soda. Today, FOP symbols and ratings appear on tens of thousands of products, and they present a significant regulatory challenge.66 Extensive federal regulations govern food labeling. The Federal Food, Drug, and Cosmetic Act of 1938 conferred on the FDA power to regulate packaged-food labels. The act mandates the listing of ingredients and nutritional information on all food packages, and agency regulations provide precise definitions that restrict the use of phrases such as “low fat” and “high fiber” as well as health claims such as “Diets low in sodium may reduce the risk of high blood pressure.”67 The applicability of existing regulations to FOP nutrition labels is not entirely clear. To date, the FDA’s regulatory response to FOP labeling has been to issue warning letters to companies that it believes are violating existing regulations restricting nutrient content and health claims.68 In this way, the agency has played an important role in enforcing minimum standards to prevent consumer fraud. A recent study by the Institutes of Medicine (IOM) proposes a mandatory government FOP scheme for all

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packaged foods that displays calories per serving and rates overall healthfulness based on saturated and trans fats, sodium, and added sugars.69 Although a mandatory government scheme would certainly promote uniformity, there is reason to be wary of adopting a command-and-control approach to regulating FOP nutrition labeling. First, allowing for experimentation and competition among private-sector groups is likely to advance knowledge in the areas of dietary guidance and food labeling more effectively than the imposition of a single, centralized government system. Disagreement among experts in industry and academia about the best approach to nutrition is significant and ongoing. The most effective role for government in this area is not to supplant private-sector experimentation and competition but rather to police them.70 Second, even many commentators who favor more government regulation in this area lament that administrative rule making has historically been subject to considerable industry influence and that agencies have lacked adequate enforcement resources.71 These concerns are reason at least to consider the alternative approach of developing a more reliable system of private third-party certification. The example of kosher certification sheds light on the failure to date of private FOP nutritional labeling and points the way toward reform. Most private FOP nutritional labeling schemes suffer from a familiar conflict of interest: the certifier is paid by the company being certified. The combination of market structure and social context that mitigates this conflict of interest in industrial kosher certification is lacking in FOP nutrition labeling. To begin with, there is little brand competition between FOP labeling schemes to produce more reliable dietary advice. To the contrary, companies and trade associations have increasingly favored cooperative efforts to establish uniform systems in order to prevent consumer confusion. Most recently, in early 2011, the Grocery Manufacturers Association and the Food Marketing Institute, two leading industry associations, teamed up to launch an FOP nutrition labeling scheme called “Facts Up Front,” which has been adopted by member companies representing 70 percent of food and beverage products.72 Consumer vigilance, on the scale and intensity of the kosher certification system, is also lacking. In addition, even though many food companies are concerned with nutrition and health, there is not an industrial morality that makes these top priorities that can compete with profits. There are, however, a few FOP schemes that more closely resemble kosher certification. For example, the American Heart Association, which certifies “heart-healthy” foods with its “Heart-Check” mark, has thirdparty independence, a vigilant consumer base, a strong sense of mission,

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and an interpersonal network that links food companies, health advocates, and consumers.73 Supermarket-shelf nutrition-labeling systems, a variation on FOP schemes, also have many of the features that promote reliable private third-party certification. For example, the Guiding Stars program was developed by the Hannaford supermarket chain as a service to its customers. The program uses shelf labels to rate the overall nutritional value of supermarket products, including produce and packaged goods, from zero to three stars. The Guiding Stars Licensing Company is today an independent organization with a full-time, nine-member professional staff and a board of scientific advisors that rates more than seventy thousand foods in more than sixteen hundred grocery stores in the United States.74 Supermarket-shelf labeling systems are less subject to the conflict of interest inherent in FOP labeling schemes because food producers do not design the certification criteria, nor do they pay for certification. Instead, supermarket chains pay to use a particular system. For a supermarket chain, getting consumers to shop in its stores is much more important than which brands or types of food consumers purchase once inside, and providing reliable dietary advice is an effective way to distinguish the chain from its competitors. Moreover, there is rivalry among supermarket-shelf labeling systems, which promotes brand competition based on reliability.75 Competition is also emerging from smartphone apps that provide nutrition ratings for food products and dietary advice.76 In addition, certification at the supermarket level exerts supplychain pressure on manufacturers and their ingredient suppliers to improve the nutritional value of their products. On its website, Guiding Stars publishes dietary advice, product information, recipes, and health policy news as a way to build its reputation among a growing network that includes consumers and food producers. To be sure, a few independent third-party FOP and supermarket-shelf labeling agencies do not constitute a robust private regulatory network. But it is a start, and the success of the more-developed industrial kosher certification system offers a vision of what such a network would look like.

Ecolabeling Consumers increasingly want information about the conditions under which the foods they purchase were produced. Currently, more than 145 ecolabeling programs administered by governments, food companies, and independent private organizations around the world address concerns such as organic production, animal welfare, sustainable fishing, environmental impact, fair labor standards, and equitable trade prac-

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tices.77 With the growing popularity of ecolabeling, consumer advocates have voiced concerns about lax certification standards and false claims, practices commonly referred to as “greenwashing.” In the 1990s, the International Standards Organization (ISO)—the leading European private standard-setting organization—promulgated guiding principles for ecolabeling programs that require them to be voluntary, transparent, independent, open to stakeholder input, free from conflicts of interest, affordable, equitably applied, and consistent with government regulation. The ISO guiding principles also require that certification criteria be scientifically based and verifiable.78 In addition, governments have set standards for ecolabeling, as have private membership organizations, such as the Global Ecolabelling Network (GEN) and the International Social and Environmental Accreditation and Labelling Alliance (ISEAL), which are composed of ecolabel certifiers.79 The Ecolabel Index is a private organization that tracks more than 424 ecolabels on all sorts of products, including food, and provides detailed profiles on certification systems. It also offers consulting services for businesses on how to incorporate ecolabeling into marketing.80 The success of industrial kosher certification should encourage ecolabeling advocates who are building market structures and developing social contexts that facilitate reliable private third-party certification. Ecolabeling efforts are already focused on developing all of the key elements that account for the success of kosher certification: consumer demand, brand competition based on reliability, interdependence, concentration of market power, consumer vigilance, industrial morality, and a complex social network that links certifiers, industry, and consumers. Since the 1970s, growing awareness of the environmental, animal welfare, labor, and trade implications of industrial food production has fueled increasing consumer demand for ecolabeling. Advocates have encouraged this demand through education, organizing, publicity, and marketing. Increasingly, food companies perceive ecolabeling as an effective marketing strategy.81 The proliferation of ecolabeling programs has stimulated brand competition that emphasizes professional standards and bureaucratic controls. Many ecolabeling organizations emphasize the scientific basis of their standards, professional qualifications of their staff, internal management oversight, stakeholder input, and independence from funding sources. They typically provide information about these aspects of their brand in detailed annual reports and in regular updates on their websites.82 Ecolabeling of products with complex supply chains increasingly fosters interdependence and provides incentives for ecolabeling organizations to

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police each other. In addition, membership organizations such as GEN and ISEAL, by concentrating market power in coalitions of leading organizations and promoting peer review, are facilitating the development and enforcement of ecolabeling-industry standards.83 Social activists within the environmental, food, animal rights, labor, and other movements provide consumer vigilance.84 Regular conferences and training programs are dedicated to building an industrial morality that emphasizes goals such as “environmental sustainability” and “social justice,” in addition to institutional commitments to “transparency” and “credibility.” These conferences and training programs as well as new media have been effective tools in building complex interpersonal networks linking certifiers, industry, consumers, and activists.85 The ecolabeling movement is thus well on its way to developing the features of a reliable system of private third-party certification. (There is growing interest among kosher consumers in ecolabeling. Recent efforts to incorporate broader ethical and environmental concerns into kosher certification are discussed in Appendix C.)

Conclusion According to rabbinic tradition, at the time of creation, God fashioned a giant ox known as the Behemoth and a great sea monster known as the Leviathan. To prevent them from breeding and taking over the world, God killed the female partner of each creature and preserved the males to serve at a banquet for the righteous in the time of the Messiah.86 A popular joke tells the story of a rabbi who was teaching his students about the messianic era. “At that time,” explained the rabbi, “the Holy One, blessed be He, will slaughter the Behemoth, and the meat from this enormous beast will be enough to feed the entire world. He will then slaughter the Leviathan, and the flesh from this creature will also be enough to feed the entire world.” Upon hearing this, a student inquired of the rabbi, “If the Behemoth provides enough food for the entire world, why will He also serve the Leviathan?” Explained the rabbi, “Because there will inevitably be those at the banquet who don’t trust the kashrus—so, to be safe, they’ll just have the fish.”87 This joke suggests that the kosher certification system will never be perfect. Fraud still occurs on rare occasions, and there are cases of lax supervision. But there is no denying that the kosher food industry no longer suffers from the widespread dishonesty and corruption of a century ago. Although it is admittedly imperfect, today’s kosher certification system reliably ensures that food labeled “kosher” is kosher. The system

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has accomplished this by developing a market structure that aligns the financial incentives of certifiers and companies with the interests of kosher consumers. It also relies heavily on certifiers’ moral commitment to making kosher food widely available and affordable to religiously observant Jews. A highly developed network of personal relationships between certifiers, companies, and consumers based on trust enhances the production and dissemination of reputational information, which is essential to the system’s market incentives and moral culture. The industrial food system poses increasingly large and complex regulatory challenges. Unfortunately, government efforts to improve foodsafety and labeling regulation are frustrated by limited agency resources and industry resistance to paying the costs of additional regulation. Credible efforts to promote more effective food regulation require more than wishful calls for bigger budgets and more compliant companies. One alternative to government regulation is industry self-regulation, but selfregulation is all too often a means used by industry to avoid meaningful oversight. Frequently overlooked, especially in popular political discourse, are other regulatory approaches such as private third-party certification. Of course, this approach is no panacea either. Private food-safety audits and FOP labeling schemes have frequently proven unreliable. But these regulatory strategies, if properly implemented, can improve food regulation. The history of industrial kosher food certification in the United States offers a model of how to make private third-party certification work. This success was not achieved overnight. The development of kosher certification from an era of rampant deception and organized crime to today’s American Standard of Kashrus has taken more than a century, and many challenges still remain. Private third-party certification has long been applied in diverse areas such as credit rating, fire safety, and professional accreditation, and it has proven highly successful in many of them. What makes kosher certification especially worthy of study is its transformation from a notorious example of regulatory failure to a model of reliable private third-party certification. This book has attempted to explain how that transformation occurred and what lessons it holds for regulatory reform in the areas of food safety and labeling. While kosher certification may not be the only successful example of private third-party certification, it is surely one of the most remarkable.

APPENDIX A

Controversy over OU Dominance of Kosher Meat Certification

Although not central to my analysis of industrial kashrus, contemporary kosher meat certification is a subject of widespread interest among kosher consumers, especially observant Jews. Indeed, controversy over kosher meat certification colors perceptions about kosher food certification more generally. This appendix elaborates on the brief discussion of kosher meat certification in Chapter 4. Today, the OU certifies almost all kosher meat and poultry sold in the United States. The agency maintains that its oversight of kosher meat and poultry production is necessary to prevent a return to the widespread fraud and corruption that plagued the industry from the mid-1800s to the 1970s. Critics, however, allege that the OU is motivated simply by greed. Widespread fraud and corruption in kosher meat production can be traced back to the rise of the independent shochet. Prior to the mid-1800s, kosher meat slaughter was a local affair. A community shochet would slaughter a cow under the supervision of the local rabbi (in smaller communities, this was the same person) and sell the meat locally. The growth of urban Jewish communities in the late 1800s, especially in New York City, gave rise to large, centralized kosher slaughterhouse operations, and the advent of the refrigerator car made it possible to ship meat from these centers to smaller communities. The centralization of beef slaughter was driven by the high demand for kosher meat in these urban centers and by economies of scale. Centralization meant that kosher slaughter was no longer carried out by local shochtim under the supervision of community rabbis. Instead, independent shochtim and rabbis were paid by slaughterhouses. In the 1920s and 1930s, shochtim, like many industrial workers, joined national unions that were infiltrated by organized crime.1 Although industrial kosher certification developed management oversight and professional standards to overcome the problems of fraud and corruption, problems in kosher meat certification persisted. The kosher meat industry underwent further consolidation in the decades following

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World War II, as leading national meatpacking firms bought smaller, independent kosher meat businesses. Further advances in refrigeration and transportation made it possible to locate slaughtering operations in the rural Midwest and South, closer to where cattle were raised.2 This reduced the distance that live cattle needed to be shipped for slaughter, and it eliminated the cost of shipping live cattle to Eastern markets, a considerable savings for kosher meat sellers since kosher cuts constitute less than a quarter of the total weight of the animal. (The back half of the animal and the bones make up most of the weight.) The operation of slaughterhouses in rural areas far from Jewish population centers further removed shochtim and their rabbinic supervisors from community oversight.3 “The rabbi that was certifying the meat from such plants basically became a law unto himself,” explains OU rabbinic coordinator Rabbi Seth Mandel: There was nobody looking over his shoulder. He could do, and did, what he wanted to. . . . There is a lot of money involved in certification. . . . I’m talking about fifty thousand, sixty thousand dollars a year, a very comfortable salary for a rabbi. . . . You’ve got rabbis who were involved in certifying meat who were not up to what the community expected. . . . And he could do this because nobody knew. Nobody even knew the shochtim. If the shochet is going to come and complain, who is he going to complain to? He’s living there in Oshkosh, and there’s no Jewish community around. And who is he going to complain to? . . . There were rabbis involved in kosher production in the 1920s, ’30s, and ’40s, and ’50s, and ’60s, and ’70s who, even though to all outward appearances they were ehrlich rabbis, the shochtim who worked at their plant could tell you things are not so aye, aye, aye there.4

In the early 1970s, the OU Kosher Division, under the direction of Rabbi Berel Wein, moved into beef certification. As the individual rabbis providing certification for major meat producers began to die off, the OU successfully obtained their clients.5 As it did in industrial kashrus, the OU has raised standards in kosher meat production by instituting management oversight and professionalism. Today, the OU dominates kosher meat certification. Mandel argues that the OU is uniquely equipped to deal with the pressures and complexity of industrial kosher meat production. Postslaughter inspection of a cow in order to determine its kosher status requires physical examination of the lungs for lesions or perforations that indicate serious illness, which would render the animal treyf. The bodek peels off any lesions to determine whether they are significant enough to

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make the animal treyf and inflates the lungs to test for punctures. Borderline cases require close analysis of the lesions and consultation with the rabbi supervising production. All of this takes time and, in a large industrial plant, stops work along the entire production line. “If somebody has to stop the assembly line, then suddenly you’ve got four hundred other workers who didn’t need it to be stopped who are just standing there twiddling their thumbs, and you have to pay them for the twiddlingthumb time,” explains Mandel. “You don’t want to stop the line, which means the rabbi should work as expeditiously as possible in checking the lungs.” Plant-management pressure to avoid line delays and keep production moving raises the risk that the supervising rabbis will not take the time to properly inspect the lungs in borderline cases and will certify animals as kosher that are, in fact, treyf.6 To reduce this pressure on the supervising rabbi, says Mandel, the OU has insisted that the kosher meat it certifies meet a higher standard of kashrus, called glatt kosher. Glatt kosher refers to the condition of the lungs and requires that there be no more than a few minor lesions, none of which is significant enough to place the kosher status of the animal in doubt. (Glatt is from the German for “smooth,” referring to the smoothness of the surface of the lungs, and there is, among rabbinic authorities, a range of opinions as to what the standard requires in terms of the number and size of permitted lesions.) If there are any questions, the animal is simply not certified as kosher. According to Mandel, by adopting the higher glatt standard, the OU has eliminated pressure on rabbis to cut corners in order to avoid production delays and has provided an additional margin of protection for kosher consumers against the risk of consuming treyf meat.7 This glatt standard, which has become the industry standard for kosher beef in America, originated as a stringency practiced exclusively by a subset of Hungarian Jews, many of whom immigrated to the United States following World War II. Concerns among postwar Jewish immigrants—many of whom clung more tightly to traditional religious practice than did their predecessors who immigrated to America in the late nineteenth and early twentieth centuries—about the reliability of “plain” kosher meat, led to an increasing demand for glatt kosher meat. This consumer demand was further amplified by the postwar generation of American-born Jews educated in Orthodox schools, who also mistrusted “plain” kosher standards employed by anonymous rabbis in remote slaughterhouses in an industry with a long history of fraud and corruption.8 Mandel also attributes the rise of the glatt standard to a

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desire among supervising rabbis to eliminate corrupt union control over kosher meat production, which compromised its reliability. According to Mandel, supervising rabbis asserted that glatt production required the use of specially trained shochtim and bodkim who were not members of the meat cutters’ union. Since glatt was initially produced as a specialty item in small production runs, the unions ceded oversight to the supervising rabbis.9 Some critics, like kashrus historian David Kraemer, allege that the shift to the more stringent glatt standard is primarily a weapon with which to wage an ultra-Orthodox culture war against more liberal streams of Judaism.10 Other critics argue that the move to glatt is simply a ploy to raise prices by limiting the supply of kosher meat to those animals that satisfy the higher standard. Glatt, says one Houston delicatessen owner who serves plain kosher meat, is a conspiracy among kosher certification agencies and kosher beef producers that “they cooked up to make money.”11 But Mandel insists otherwise. He rejects what he calls the “misimpression which is being spread that the whole glatt business is just a right-wing chumrah [stringency] perpetrated on the Jewish community. That is simply not true.”12 Mandel also asserts that most other agencies cannot be trusted to properly supervise kosher meat production. He describes how rabbis at other agencies initiate their “unannounced” inspections of meat plants by calling ahead to schedule visits and to request transportation to the facility. Upon arriving, the rabbi requests boots and a helmet and waits while they are brought, thereby providing notice that he is on-site. By contrast, OU inspectors arrive unannounced at production facilities and are already equipped with proper clothing and enter through a back door directly onto the kill floor before plant managers or workers are apprised of their presence. Moreover, says Mandel, rabbis at other agencies typically do not visit plants with sufficient frequency to know the shochtim and bodkim personally. He tells of one rabbi at another agency that did not like to get his hands dirty, so he refrained from personally conducting internal lung inspections to check the work of the bodkim. He relates that another rabbi overseeing a slaughterhouse never bothered to inspect the meat-packing room, where the carcasses were cut up for packaging. Lax oversight is never acceptable, explains Mandel, but it is a problem especially in industrial meat production, where, of necessity, kosher and nonkosher production are carried out in the same facility since all treyf animals and the hindquarters of even kosher animals are processed for the nonkosher market. In some cases, the problem is not personal carelessness, says Mandel, but rather that smaller agencies sim-

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ply lack the trained personnel and administrative capacity to provide reliable oversight.13 According to one prominent kashrus expert, the OU’s dominance over kosher meat certification “has nothing to do with trust.” Instead, he argues, it is based on an expansive interpretation of a rabbinic legal doctrine designed to protect local kosher meat production from outside competition. Historically, local rabbinic authorities permitted only meat products produced locally under their supervision. Known as shechutei chutz, Hebrew for “outside shechitah,” this doctrine was designed to protect the economic viability of local kosher meat production and to provide a measure of consumer protection. “What the OU did,” explains this expert, “is that they said, ‘We are the national va’ad for everybody, and therefore everything has to be under our hashgocha [kosher supervision].’ And certainly they couldn’t force people to buy only OU meat, but they could say that every place that was an OU facility could only use meat that was certified by the OU. . . . The OU said, ‘If we are giving hashgocha, any meat that is sold at an OU facility—be it manufacturing or restaurant or anything else—has to be certified by the OU.’”14 The OU maintains its dominance of kosher meat certification by means of a policy requiring that food service operations and retail stores under its certification accept only OU-certified meat.15 In addition, OK rabbinic administrator Rabbi Don Yoel Levy alleges that the OU discourages consumers and other agencies from purchasing meat that is not certified by the OU. Levy recounts that “we started a chicken shechitah, this was about eight years ago, and we had a nice product. They went around and told people they should not buy it and talked to other agencies and convinced them not to buy it. The man lost because of that millions of dollars. It didn’t bother them. They simply put him out of business.” While some are hesitant to criticize the OU openly, Levy declares, “you could quote me on this, you could put me in all the newspapers on this, I am not ashamed to say it.”16 Critics also allege that, in many cases, OU certification is little more than a protection racket. In most cases the OU provides a secondary certification by overseeing the work of other agencies. “The OU really doesn’t do anything,” says one industry expert. “The OU is a rubber stamp. The OU says: ‘If you want to sell meat in America, it’s like the Mafia, you have to have an OU.’ ”17 The rivalry and recriminations that surround kosher meat production have not poisoned relations between agencies in the much larger field of industrial certification. For the most part, the OU believes that competition

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among agencies has been good for industrial kashrus, and it has been at the forefront of efforts to promote dialogue and cooperation among larger agencies and to mentor smaller ones. Other agencies, in turn, are careful most of the time not to let any resentment they may feel toward the OU for its size and influence get in the way of doing business and promoting kashrus.

APPENDIX B

An Overview of Antitrust Concerns

The Big Five control 80 percent of the market for kosher certification services in the United States.1 They set industry standards related to the kosher status of food ingredients and production techniques, inspection practices, and interagency competition for clients, and they refuse to deal with certifiers who do not conform to these standards. This characterization is likely to raise questions about whether the industrial kashrus system runs afoul of antitrust laws that prohibit rival firms from engaging in concerted refusals to deal with competitors in ways that reduce competition. This appendix, without going into detailed analysis, suggests that antitrust law allows for most of the cooperative practices of the Big Five. (OU dominance in kosher beef certification also has antitrust implications, but the analysis offered here is limited to industrial kosher certification and the coordination that supports reliable private third-party certification.) Antitrust law forbids cooperation among rival firms that reduces competition, and it subjects to particular scrutiny coordinated practices such as price-fixing, market division, and joint refusals to deal.2 While these practices are more easily deemed illegal if they are secured by explicit agreements among competitors, even assorted communications that do not codify an agreement—such as signals or frequent meetings that facilitate tacit coordination—can be illegal.3 For example, concerted efforts among rivals to restrict competitors’ access to a market, such as inducing suppliers or customers not to deal with competitors (known as a classic boycott), are illegal.4 Antitrust law often does allow, however, rival firms to set common industry standards for products and services. Although setting industry standards frequently advantages certain competitors over others and might even exclude some noncompliant firms, such coordinated agreements can produce pro-competitive effects and thus amount to permitted collaboration. Standard-setting agreements are more likely to survive antitrust scrutiny if the industry standards are objectively related to relevant quality characteristics and administered objectively and fairly.5 In the case of industrial kashrus, industry standards are necessary to meet consumer demand for reliable kosher certification. Without certification agencies, consumers would not be able to judge the kosher status

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of most products since normally it cannot be discerned from appearance or taste. Big Five agencies collaborate in the development of kosher standards, and they publicize noncompliance through information networks that include consumers, food companies, and other agencies. Reputational information signals to consumers the level of vigilance behind kosher certification symbols, and it deters fraud at both the production and the retail level. In more technical terms, Big Five industry standards prevent market failure due to asymmetric information. Moreover, reputational damage suffered by nonconforming agencies does not exclude them from the market altogether, nor does it interfere with price competition. Agencies such as Triangle K and KVH, which refuse or are unable to conform to industry standards, are still able to attract food-company clients and consumers who are willing to settle for a lower standard of kashrus. Rabbi Aryeh Ralbag of Triangle K explains that his agency employs different levels of stringency depending upon the product and the target market. According to Rabbi Abraham Halbfinger, former rabbinic administrator of KVH, there is ample room in the market for agencies with different standards to appeal to a wide range of kosher consumers. As for price competition, Ralbag asserts that his fees are “much more reasonable than any of the so-called national kashrus organizations.” Halbfinger describes aggressive price competition among agencies for new accounts. “There’s terrible competition in this. . . . There’s competition on every deal. . . . When a company wants to have kosher certification, it will call four or five agencies and say, ‘Look, give me a proposal.’ ”6 The First Amendment’s religion clauses may also shield Big Five standard setting from antitrust challenges. Standards for the kosher status of food ingredients and production techniques as well as for inspection practices are based on rabbinic rulings regarding the application of Jewish law to modern industrial food production. Even though there is frequently room for principled disagreement concerning these matters, the First Amendment prohibits both state and federal courts from rendering decisions about the proper interpretation of religious doctrine.7 Thus, courts might be precluded from determining whether Big Five standards are objectively related to relevant quality characteristics. The acceptability of current standard-setting practices by the Big Five does not, however, mean that the kosher certification industry is immune from antitrust law. AKO’s aborted policy to require its members to boycott agencies that refused to submit to peer review would most certainly have violated antitrust law. Similarly, any attempt by AKO to enforce its rules of fair competition in a way that discouraged food companies from

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price shopping would raise serious concerns. Legitimate questions might also be raised about agency pressure on upstream ingredient suppliers to avoid certification by nonconforming agencies.8 On the one hand, this could be characterized as concerted action to exclude competing certifiers from the market, which would constitute an impermissible horizontal restraint. On the other hand, this could be viewed as simply a refusal to certify products not composed exclusively of ingredients that meet industry standards, thereby providing quality information to consumers that is necessary to avoid market failure. In addition, agreement among AKO members not to solicit company clients currently under the certification of another agency raises antitrust questions about market division.9 These questions are complicated because agencies allege that, despite AKO guidelines, such solicitation occurs with great frequency, and AKO does not enforce the policy. Moreover, agreement, at least in principle, to refrain from poaching clients is based on Jewish laws concerning tortious interference with the livelihood of another, which may raise First Amendment issues. The question of antitrust limits on industry self-regulation is at the frontier of antitrust law and scholarship. Given the complexity of the matter, a detailed analysis or definitive conclusion is beyond the scope of this book. The issue certainly deserves further scrutiny. It is safe to say, however, that antitrust law does not prohibit all forms of self-regulating standard setting by industry. Interagency discussion of nonbinding religious standards and the promulgation of reputational information useful to consumers are unlikely to run afoul of antitrust law.10

APPENDIX C

The Iowa Slaughterhouse Scandal and the Movement for Ethical Kashrus

Some kosher consumers are concerned about more than just the kosher status of their food. They are behind a movement to broaden kashrus to include not merely dietary laws but also Jewish ethical values. Efforts to expand the purview of kosher certification in this way have met with mixed reactions. Kosher certification agencies have responded positively to consumer demand for kosher-certified organic food. Many products now carry both kosher and organic certification, and some smaller agencies, such as Kosher Organics and Earth Kosher, specialize in the kosher certification of organic foods.1 Star-K has developed a partnership with Quality Assurance International (QAI), a leading international organic certifier, under which Star-K mashgichim are trained to conduct both kosher and organic inspections. In addition to sharing inspection costs, the two organizations often share exhibition booths at trade shows.2 But ethical kashrus advocates desire more than merely kosher organic food. They want kosher certification to include environmental, animalwelfare, labor, and fair-trade concerns. This vision of kashrus dates back to the 1970s, when Rabbi Zalman Schachter-Shalomi, founder of the Jewish Renewal movement, advocated what he called “eco-kosher.” More recently, a series of highly publicized scandals beginning in 2004 at the Agriprocessors meatpacking plant in Postville, Iowa, sparked renewed interest in the relationship between ethical standards and kosher certification. At the time, Agriprocessors was the largest kosher meatproduction facility in the United States. Revelations of animal cruelty, labor exploitation, environmental degradation, and financial irregularities resulted in the 2009 criminal conviction of CEO Rabbi Sholom Rubashkin. In response to the ongoing scandal, the Conservative movement’s Rabbinical Assembly founded Magen Tzedek (Hebrew for “Shield of Justice”), an organization that provides kosher certification that includes specific animal-welfare, labor, and environmental standards. Rabbinical Assembly executive director Rabbi Julie Schonfeld explained that “[t]he ethical values of Judaism and the ritual practices of Judaism refine

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us as human beings and help us develop the kind of communities we want to live in. The life and well-being of the person who prepares and handles our food is as central to its holiness as the rituals involved in its preparation.” Also responding to the Agriprocessors scandal, the modern Orthodox movement’s Rabbinical Council of America issued its own set of “Jewish Principles and Ethical Guidelines for the Kosher Food Industry.”3 For the most part, kosher certification agencies have been dismissive of efforts to incorporate ethical concerns into kashrus. OU rabbinic administrator Rabbi Menachem Genack argues that enforcement of environmental and labor standards should be left to the government: “We at the OU do not have the expertise to develop standards in those areas. If the company is found to be criminally liable, we will withdraw our certification.”4 Critics also believe that mixing kashrus and ethics is impractical. Industrial kashrus expert Rabbi Zushe Blech explains: It would undermine the relationship with the companies. The rabbis come in, they look at kosher. They don’t look at anything else. All the companies need is to worry that the rabbi comes in, and he’s going to start interviewing the workers to see if they’re happy and find out if they’re being paid minimum wage and find out what their working conditions are like. Do you really think companies are going to be so eager to open themselves up?5

Earth Kosher CEO Rabbi Zecharia Tzvi Goldman doubts whether there is sufficient market demand to sustain eco-kosher certification. “I was contacted by the people who are doing Magen Tzedek,” he recalls, “and I told them that ‘you know I empathize with where you guys are coming from, okay, but you should understand that this is not functional in any significant way unless you have a market to deliver it to the companies.’ ”6 Finally, there is also suspicion about the motives behind the ecokosher movement. According to Blech, the movement “is a disaster because it is a foil for non-frum [religiously observant] people to voice their social-conscience agenda and put it in the guise of kashrus.”7 Despite this resistance, the movement for ethical kashrus can learn a great deal from traditional kosher certifiers. To be successful, eco-kosher supporters will need to develop a market structure and social context that supports reliable third-party private certification. And the success of industrial kosher certification can show them how to do it.

APPENDIX D

Self-Reported Data from Big Five Kosher Certification Agencies

Each Big Five agency provided me with data on the number of companies, plants, and products that it certifies based on its own internal records. In requesting this information, I stipulated the following definitions of these terms. “Company” refers only to agency clients that are foodmanufacturing companies. This does not include distributors or retail companies with which the agency has only a private-label agreement, nor does it include food-service companies. “Plant” refers to manufacturing plants. “Product” refers to product categories, counting each brand and variation—but not different sizes—of a product separately. For example, Coke and Pepsi each count as separate products, as do Classic and Diet Coke. Twelve-, sixteen-, and twenty-ounce bottles of Coke, however, do not count as separate products. The same product marketed under different labels, pursuant to private-label agreements, counts as one product. “Product” includes both ingredients and retail products. Each Big Five agency also furnished me with data from its master list of Schedule A ingredients, which includes all ingredients involved in the manufacture of products that it certifies. I obtained from each Big Five agency the number of ingredients in its master list certified by each of the Big Five and other agencies, as well as those ingredients classified as Group 1, counting each ingredient only once regardless of how many times it was used. For example, if the OU master list of Schedule A ingredients included OK-certified Wesson corn oil, this was counted as one OKcertified ingredient regardless of how often it was used in the production of OU-certified products. I also obtained the number of times ingredients certified by each of the Big Five and other agencies, as well as those ingredients classified as Group 1, appeared on the approved list of ingredients for a production facility under the supervision of that agency. For example, if the OU master list of Schedule A ingredients included OK-certified Wesson corn oil approved for use in 750 different production facilities, it was counted 750 times. Some agencies also provided the number of times ingredients certified by each of the Big Five and other agencies, as well as those ingredients classified as Group 1, appeared in the formulas for in-

APPENDIX D

167

dividual products certified by that agency. For example, if the Kof-K master list of Schedule A ingredients included OK-certified Wesson corn oil approved for use in five thousand products, it was counted five thousand times. Figure 12 is based on the second of these sets of data (counting the number of times ingredients were used in different production facilities), which I aggregated to create a combined Big Five Schedule A data set. For the purposes of highlighting agencies’ relative size, Figure 12 excludes Group 1 ingredients. Some agencies requested that raw data remain unpublished. I have all of the data on file.

APPENDIX E

Supermarket Survey Data

My supermarket data are from surveys of five large supermarkets belonging to major regional chains. Table 2 provides details of each survey. I selected the two Albany supermarkets because they are large stores near where I live. The other three supermarkets are stores of comparable size in populous residential areas near or in major metropolitan centers: New York City, Chicago, and Los Angeles. Student research assistants conducted the two Albany surveys, and local mashgichim conducted the other three. Albany Law School provided all funding for the surveys. Working in pairs, the surveyors spent three hours inspecting and recording certification symbols on packaged food products in all sections of the supermarket, including applesauce, baby food, baking ingredients, beans, bread, bread crumbs, butter, candy, canned goods, cereal, chips, condiments, cookies, crackers, dairy items, drinks, frozen foods, jams and jellies, nuts, oil, olives, pasta, peanut butter, peppers, pickles, salad dressing, spices, stuffing, and syrup. (The Jewel-Osco survey was conducted by a single person working for six hours.) Surveyors counted the number of products carrying certification by the OU, OK, Kof-K, Star-K, CRC, Triangle K, and other certification agencies, as well as products bearing no kosher certification. They inspected one package of each food product by type of food, brand, and product variation (such as flavor or fat content) but did not survey different sizes of the same product. The surveys in Albany, Evanston, and Los Angeles covered 75–100 percent of the products in each section surveyed, and the White Plains survey covered 50–100 percent. The largest data set that tracks kosher certification of retail packaged food products is owned by Gladson, a marketing research firm in Lisle, Illinois. The Gladson Nutrition Database contains information, including kosher certification, on more than two hundred thousand packaged food products.1 Unfortunately, Gladson was unwilling to share any of its data with me. Although Gladson’s database would provide a large sample by which to estimate the relative sizes of the Big Five agencies based on how many retail products each certifies, it does not take into account how widely those products are carried on supermarket shelves. Super-

1,587

1,045

650

934

509

3,102

2,251

1,247

1,938

1,430

Price Chopper 911 Central Ave. Albany, NY May 18 & 19, 2012

Hannaford 900 Central Ave. Albany, NY May 20 & 28, 2012

Super Stop & Shop 154 Westchester Ave. White Plains, NY May 22 & 24, 2012

Jewel-Osco 2485 W. Howard St. Evanston, IL June 11 & 12, 2012

Ralph’s 11727 W. Olympic Blvd. Los Angeles, CA May 31, 2012

Location & Date

OU

Supermarket Surveys of Kosher Certification

No. of Products Surveyed

Table 2.

95

131

58

102

78

OK

59

66

69

85

232

Kof-K

0

19

32

20

21

Star-K

1

32

0

1

0

CRC

22

56

100

32

114

Triangle K

29

119

78

239

332

Other

715

580

260

733

741

No Cert.

170

APPENDIX E

market surveys in this sense offer a better sense of how frequently consumers are likely to encounter different certification symbols. The five surveys presented here offer modest sample sizes. Supermarkets like those included in these five surveys typically stock 15,000– 60,000 different products.2 Moreover, more careful design would be required to ensure representative sampling that could generate reliable and detailed statistical data. The primary value of these surveys is that they present a consistent finding that OU certification of retail packaged food items found in five large supermarkets belonging to major regional chains in different parts of the country is, by a wide margin, more prevalent than all other certifications combined.

Glossary of Terms and Names

bedikah checking of a slaughtered animal’s internal organs to ensure that they do not have any abnormalities that would render the animal nonkosher Big Five most influential kosher certification agencies: the OU, OK, Kof-K, Star-K, and the CRC bodek professional who conducts bedikah bodkim plural of bodek ehrlich honest Fishbane, Sholem rabbinic administrator of the CRC Kosher Division Genack, Menacham rabbinic administrator of the OU Kosher Division Haggadah book that includes rituals, prayers, and sacred readings used for celebration of the Passover feast halacha Jewish law halachic adjectival form of halacha halal dietary restrictions prescribed by Islamic law Haredi a more insular approach to Orthodoxy than modern Orthodoxy, sometimes referred to as ultra-Orthodox, literally, “trembling” [before God] hashgocha kosher supervision, sometimes used as a term for kosher certification or kosher certification agency Hasid adherent of a mystical stream of Orthodox Judaism, characterized by strong allegiance to charismatic rabbinic leaders, literally a “righteous person” heksher kosher certification karobka Polish meat tax

172

G LOSS A RY O F T E R M S A N D N A M E S

kashering extraction of blood from raw beef or poultry following kosher slaughter; also denotes ritual cleaning of food-production equipment kashrus kosher dietary restrictions kashrut alternate pronunciation of kashrus kehillah community council kehillot plural of kehillah Levy, Berel rabbinic administrator of OK, 1968–1987 Levy, Don Yoel rabbinic administrator of OK mashgiach professional who oversees kosher food production mashgichim plural of mashgiach ne’emunus trustworthiness nikur removal of blood vessels, prohibited fats, and the sciatic nerve from raw beef following kosher slaughter pareve foods categorized as neither meat nor dairy plombe tag for marking kosher meat Pollak, Avrom president of Star-K Ralbag, Aryeh rabbinic administrator of Triangle K rebbe Hasidic rabbi who commands unquestioning obedience from his followers Rosenberg, Alexander rabbinic administrator of the OU Kosher Division, 1950–1972 Senter, Harvey rabbinic administrator of Kof-K Shandalov, Benjamin rabbinic administrator of the CRC Kosher Division, 1981–1996 shechitah kosher slaughter shochet professional qualified to perform kosher slaughter shochtim plural of shochet tabach butcher

G LOSS A RY O F T E R M S A N D N A M E S

tabachim butchers Talmud ancient compendium of rabbinic law Torah the Five Books of Moses in the Hebrew Bible treyf nonkosher va’ad kashrus local kosher certifier va’adei kashrus / va’adim plural of va’ad kashrus yeshiva Talmudic seminary

173

List of Acronyms

ACKO

Association of Communal Kashrus Organizations

AKO

Association of Kashrus Organizations

CRC

Chicago Rabbinical Council

FDA

U.S. Food and Drug Administration

FSMA

Food Safety Modernization Act of 2011

GMA

Grocery Manufacturers Association

GFSI

Global Food Safety Initiative

HACCP

Hazard Analysis Critical Control Point

KCS

Kosher Certification Service of the Orthodox Union

OK

Organized for Kashruth Laboratories

OU

Orthodox Union

RCA

Rabbinical Council of America (Orthodox)

USDA

U.S. Department of Agriculture

Notes

INT RODUCT IO N

1.

This account of the Peanut Corporation of America salmonella outbreak and the subsequent investigation draws from David Schaffer, “A Heartbreaking Lawsuit: Surviving Cancer, Done in by Salmonella,” Star Tribune, January 27, 2009, 1A; Michael Moss and Andrew Martin, “Food Problems Elude Private Inspectors,” New York Times, March 6, 2009, A1; Andrew Martin, “Peanut Plant Says Audits Declared It in Top Shape,” New York Times, February 5, 2009, B10; “Peanut Corporation of America,” Wikipedia, www.en.wikipedia.org (accessed September 22, 2011).

2.

For details on the Smart Choices labeling project and the regulatory challenges of nutrition labeling, see Timothy Lytton, “Signs of Change or Clash of Symbols? FDA Regulation of Nutrient Profile Labeling,” Health Matrix 20 (2010): 93.

3.

Harold Gastwirt, Fraud, Corruption, and Holiness: The Controversy over the Supervision of Jewish Dietary Practice in New York City, 1881– 1940 (Port Washington, NY: Kennikat, 1974), chap. 8.

4.

Lubicom Marketing Consulting, “The Kosher Food Market 2011,” www.lubicom.com (accessed December 9, 2011).

5.

See, for example, Wolfgang Streeck and Philippe C. Schmitter, Private Interest Government (London: Sage, 1985); Graham Burchell, Colin Gordon, and Peter Miller, eds., The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press, 1991); Philip Selznick, The Moral Commonwealth: Social Theory and the Promise of Community (Berkeley: University of California Press, 1992); Neil Gunningham and Joseph Rees, “Industry Self-Regulation: An Institutional Perspective,” Law and Policy 19 (1997): 364; Jody Freeman, “The Private Role in Public Governance,” New York University Law Review 75 (2000): 543; Julia Black, Critical Reflections on Regulation (London: Center for Analysis of Risk and Regulation at the London School of Economics and Political Science, 2002); Daniel Diermeier, “Private Politics: A Research Agenda,” Political Economist 14 (2007): 1; David Vogel, “Taming Globalization? Civil Regulation and Corporate Capitalism,” in The Oxford Handbook of Business and Government, ed. William Coen, Wyn Grant, and Graham Wilson (New York: Oxford University Press, 2010), 472–494; Tim Buthe and Walter Mattli, The New Global Rulers: The Privatization

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of Regulation in the World Economy (Princeton, NJ: Princeton University Press, 2011); Fabrizio Cafaggi, “New Foundations of Transnational Private Regulation,” Journal of Law and Society 38 (2011): 20. For a recent collection of essays on private regulation of the food industry, see Bernd van der Meulen, ed., Private Food Law: Governing Food Chains through Contract Law, Self-Regulation, Private Standards, Audits and Certification Schemes (Wageningen, the Netherlands: Wageningen Academic Publishers, 2011). 6.

See, for example, Ross Cheit, Setting Safety Standards: Regulation in the Public and Private Sectors (Berkeley: University of California Press, 1990); Joseph Rees, Hostages of Each Other: The Transformation of Nuclear Safety since Three Mile Island (Chicago: University of Chicago Press, 1994); Timothy Sinclair, The New Masters of Capital: American Bond Rating Agencies and the Politics of Creditworthiness (Ithaca, NY: Cornell University Press, 2008); Benjamin Cashore, Graeme Auld, and Deanna Newsom, Governing through Markets: Forest Certification and the Emergence of Non-State Authority (New Haven, CT: Yale University Press, 2004). See also Lisa Bernstein, “Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry,” Journal of Legal Studies 21 (1992): 116; Barak Richman, “How Community Institutions Create Economic Advantage: Jewish Diamond Merchants in New York,” Law and Social Inquiry 31 (2006): 383; Lesley McAllister, “Regulation by Third-Party Verification,” Boston College Law Review 53 (2012): 1.

7.

See Exodus 23:19, 24:26; Leviticus 11:7, 11:10, and Deuteronomy 14:21.

8.

For more extensive discussion of the origins and practices of kashrus and justifications for it, see Irving Welfeld, Why Kosher? An Anthology of Answers (Northvale, NJ: Aronson, 1996); David Kraemer, Jewish Eating and Identity through the Ages (New York: Routledge, 2007).

1 . RIVAL RY A ND R ACKE T E E R ING

1.

These and other details of the Branfman fraud case can be found in Jonas Simon, “Thirty Years of the Kosher Law of the State of New York” (unpublished memorandum), 11–12; People v. Branfman, 263 N.Y.S. 629, 632–633 (1933).

2.

This account of the Baff incident relies on Simon, “Thirty Years of the Kosher Law,” 12–13; Harold Gastwirt, Fraud, Corruption, and Holiness: The Controversy over the Supervision of Jewish Dietary Practice in New York City, 1881–1940 (Port Washington, NY: Kennikat, 1974), 45–46; Jenna Weissman Joselit, Our Gang: Jewish Crime and the New York Jewish Community, 1900–1940 (Bloomington: Indiana University Press, 1983), 130–131. Baff’s first name appears as Bernard in some historical sources and as Barnett in others.

N OT E S TO PAG E S 1 0 – 1 5

177

3.

Moses Weinberger, People Walk on Their Heads: Moses Weinberger’s Jews and Judaism in New York, ed. and trans. Jonathan D. Sarna (New York: Holmes and Meier, 1982), 50.

4.

Simon, “Thirty Years of the Kosher Law,” 10.

5.

Gastwirt, Fraud, Corruption, and Holiness, 36, 103, 113.

6.

Daniel Elazar, Kinship & Consent: The Jewish Political Tradition and Its Contemporary Uses (Piscataway, NJ: Transaction, 1997), 268. See also Gastwirt, Fraud, Corruption, and Holiness, 189; Jenna Weissman Joselit, New York’s Jewish Jews: The Orthodox Community in the Interwar Years, (Bloomington: Indiana University Press, 1990), 61; Hasia Diner, Hungering for America: Italian, Irish, and Jewish Foodways in the Age of Migration (Cambridge, MA: Harvard University Press, 2002), 181.

7.

My account of the requirements of kosher meat production draws extensively from Zushe Blech, Kosher Food Production, 2nd ed. (Ames, IA: Wiley-Blackwell, 2008), 137–147, 363–373, and Jeremiah Berman, Shehitah: A Study in the Cultural and Social Life of the Jewish People (New York: Bloch, 1941), 5–6.

8.

While the term treyf—literally, “torn”—technically refers to animals rendered nonkosher due to anatomical abnormalities, injury, or improper slaughter, it is commonly used in reference to all kinds of foods in a more generic sense to mean nonkosher.

9.

The term “butcher” is commonly used to refer to different roles within the meat-production process. Strictly speaking, a butcher is a meat cutter— one who divides the carcass of a slaughtered animal into cuts of meat and, in the case of kosher meat, further processes the meat by removing major blood vessels, forbidden fats, and the sciatic nerve (nikur) and extracting blood by soaking and salting or broiling (kashering). Some butchers work within slaughtering operations that sell prepared cuts of meat to retail stores. Some butchers work in retail stores that receive whole (uncut) sides of beef, which the butcher prepares for retail sale. The local butcher who operates a butcher shop is, therefore, both a meat cutter and a retail meat dealer. Depending upon the context, the term “butcher” may refer to a meat cutter who is also a retail meat dealer.

10.

For a fuller explanation of the higher cost of kosher meat, see Harry Finkelstein, The Kosher Meat Industry (unpublished paper, 1926), 50, and Berman, Shehitah, 309–315.

11.

My account of regulation in the ancient world draws extensively from Berman, Shehitah, 14–29.

12.

Babylonian Talmud, Bechorot 29b (cited in Berman, Shehitah, 22).

13.

My account of the kehillah draws extensively from Elazar, Kingship & Consent, 234–255.

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N OT E S TO PAG E S 1 5 – 2 0

14.

My account of the medieval regulation of shochtim and meat dealers draws extensively from Berman, Shehitah, 43–98, 141–169; Gastwirt, Fraud, Corruption, and Holiness, 18–20.

15.

Berman, Shehitah, 145, 162–165.

16.

Ibid., 171–207, and Gastwirt, Fraud, Corruption, and Holiness, 19–21.

17.

This paragraph is drawn from Jonathan Sarna, American Judaism: A History (New Haven, CT: Yale University Press, 2004), 1–30.

18.

Sarna, American Judaism, 12–21.

19.

Berman, Shehitah, 274–287; Gastwirt, Fraud, Corruption, and Holiness, 23; Seymour Freedman, The Book of Kashruth: A Treasury of Kosher Facts & Frauds (New York: Bloch, 1970), 47–51. According to these sources, although Jews were licensed by Dutch colonial authorities to slaughter as early as 1660, little is known of the kosher meat business or its regulation in New York City prior to 1728.

20.

Sarna, American Judaism, 19, 57–61; Berman, Shehitah, 273, 348–369.

21.

Berman, Shehitah, 285–286; Gastwirt, Fraud, Corruption, and Holiness, 24; Freedman, Book of Kashruth, 49–50; Sarna, American Judaism, 53.

22.

Kosher meat supervision was an important source of income for Orthodox rabbis seeking to supplement typically meager congregational salaries. While the highest-paid New York City rabbis in the 1880s received annual salaries in the thousands of dollars, most Orthodox rabbis earned inadequate and irregular pay from their congregations. According to contemporary sources, Orthodox rabbis at the turn of the century normally earned salaries of $150 to $500 per year, often collected by congregants who went weekly door to door, begging neighbors for contributions, which frequently added up to only a fraction of the full amount. By comparison, garment workers during this same period earned between $240 and $1,000 per year. Many Orthodox rabbis supplemented their incomes through kosher supervision, which could be very lucrative: some rabbis earned thousands of dollars in annual fees. Kimmy Caplan, “In God We Trust: Salaries and Income of American Orthodox Rabbis, 1881–1924,” American Jewish History 86 (1998): 83–99. See also Abraham Karp, New York Chooses a Chief Rabbi (Philadelphia: American Jewish Historical Society, 1955), 157.

23.

This account of the independent shochet relies on Berman, Shehitah, 290–294; Freedman, Book of Kashruth, 50–51; Weinberger, People Walk on Their Heads, 46–50; Gastwirt, Fraud, Corruption, and Holiness, 24; Sarna, American Judaism, 55–61.

24.

Weinberger, People Walk on Their Heads, 46–49.

25.

Sarna, American Judaism, 15.

N OT E S TO PAG E S 2 0 – 2 3

179

26.

Ibid., 59; “History of the Jews in New York,” Wikipedia, www.en.wikipedia.com (accessed December 13, 2011).

27.

Gastwirt, Fraud, Corruption, and Holiness, 55; Sarna, American Judaism, 153.

28.

Berman, Shehitah, 303.

29.

Gastwirt, Fraud, Corruption, and Holiness, 36. Throughout the city, and in the Lower East Side in particular, many of these butcher shops were owned by Jews. An 1890 study counted 413 Jewish-owned butcher shops in three heavily Jewish wards of Manhattan. In 1899, there were 131 Jewish butchers in the Lower East Side alone. Jews also played a major role in the meat industry generally. By 1900, Jewish businesses handled 80 percent of wholesale and 50 percent of retail meat sales in New York City. See Alan Kraut, “The Butcher, the Baker, the Pushcart Peddler: Jewish Foodways and Entrepreneurial Opportunity in the East European Immigrant Community, 1880–1940,” Journal of American Culture 6 (1983): 76.

30.

Sarna, American Judaism, 19, 57–61; Berman, Shehitah, 273, 348–369.

31.

Berman, Shehitah, 291–294; Gastwirt, Fraud, Corruption, and Holiness, 25; Freedman, Book of Kashruth, 51–52. For earlier attempts to organize a coalition of congregations to oversee shechitah, see Gastwirt, Fraud, Corruption, and Holiness, 25.

32.

Berman, Shehitah, 293.

33.

Ibid., 294–301; Gastwirt, Fraud, Corruption, and Holiness, 59–90, 188.

34.

Karp, Chief Rabbi, 148–157, 195.

35.

Berman, Shehitah, 297–298; Gastwirt, Fraud, Corruption, and Holiness, 60; Karp, Chief Rabbi, 163, 175.

36.

Gastwirt, Fraud, Corruption, and Holiness, 60–62. On opposition to the poultry plombe fee see also Berman, Shehitah, 298; Gastwirt, Fraud, Corruption, and Holiness, 60–86; Karp, Chief Rabbi, 163–164.

37.

Gastwirt, Fraud, Corruption, and Holiness, 63–65, 76; Karp, Chief Rabbi, 166–167.

38.

Gastwirt, Fraud, Corruption, and Holiness, 63–65, 76; Karp, Chief Rabbi, 166–167, 174, 174n128.

39.

Berman, Shehitah, 296–298; Karp, Chief Rabbi, 168–169; Gastwirt, Fraud, Corruption, and Holiness, 66.

40.

Karp, Chief Rabbi, 167; Gastwirt, Fraud, Corruption, and Holiness, 65.

41.

Gastwirt, Fraud, Corruption, and Holiness, 65, 70; Karp, Chief Rabbi, 167, 175.

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N OT E S TO PAG E S 2 4 – 3 0

42.

Gastwirt, Fraud, Corruption, and Holiness, 68–69; Karp, Chief Rabbi, 170, 176–178.

43.

Berman, Shehitah, 300–301; Gastwirt, Fraud, Corruption, and Holiness, 72–73, 76; Karp, Chief Rabbi, 177–180.

44.

Gastwirt, Fraud, Corruption, and Holiness, 90–94.

45.

Ibid., 74–75; Finkelstein, Kosher Meat Industry, 69–71.

46.

Gastwirt, Fraud, Corruption, and Holiness, 46–52; Berman, Shehitah, 322–326; Joselit, Our Gang, 130–139; Simon, Thirty Years of the Kosher Law, 3–6; “Poultry Dealer Guilty,” New York Times, December 19, 1916.

47.

Gastwirt, Fraud, Corruption, and Holiness, 95–98.

48.

My account of the Kehillah draws on Gastwirt, Fraud, Corruption, and Holiness, 101–112; Arthur Goren, New York Jews and the Quest for Community: The Kehillah Experiment, 1908–1922 (New York: Columbia University Press, 1970), chap. 2; Sarna, American Judaism, 200–201.

49.

Berman, Shehitah, 303–305; Gastwirt, Fraud, Corruption, and Holiness, 112–123.

50.

Gastwirt, Fraud, Corruption, and Holiness, 116; “Poultry Dealer Guilty,” New York Times, December 19, 1916.

51.

Goren, Quest for Community, chap. 10; Gastwirt, Fraud, Corruption, and Holiness, 123.

52.

Berman, Shehitah, 337–338; Gastwirt, Fraud, Corruption, and Holiness, 36, 103, 124–126; Mark Berman, “Kosher Fraud Statutes and the Establishment Clause: Are They Kosher?” Columbia Journal of Law and Social Problems 26 (1992): 17–19. For the full text of the legislation, see 1915 N.Y. Laws, chap. 233.

53.

Gastwirt, Fraud, Corruption, and Holiness, 36, 47, 126–130. For the text of legislative reforms, see 1922 N.Y. Laws, chap. 580 and 1926 N.Y. Laws, chap. 287.

54.

Berman, Shehitah, 336–339; Gastwirt, Fraud, Corruption, and Holiness, 131–139, 145.

55.

Gastwirt, Fraud, Corruption, and Holiness, 132–135.

56.

Berman, Shehitah, 336–338.

57.

Gastwirt, Fraud, Corruption, and Holiness, 147–152. Federal food-labeling regulations also included guidance concerning use of the term “kosher” in food labels between 1977 and 1997. See 42 Federal Register 14318, March 15, 1977; 62 Federal Register 43072, August 12, 1997.

58.

Gastwirt, Fraud, Corruption, and Holiness, 158–159.

N OT E S TO PAG E S 3 0 – 32

181

59.

Berman, Shehitah, 339–340; Gastwirt, Fraud, Corruption, and Holiness, 158–167.

60.

Berman, Shehitah, 340–342; Gastwirt, Fraud, Corruption, and Holiness, 168–173.

61.

Berman, Shehitah, 343; Simon, Thirty Years of the Kosher Law, 20; Gastwirt, Fraud, Corruption, and Holiness, 172–176.

62.

S. S. and B. Live Poultry Corp. v. Kashruth Association, 285 N.Y.S. 879 (Sup. Ct. N.Y. City, 1936). The court held that: One who enters the field of the kosher trade assumes certain obligations, not usual in other lines; so much is admitted by the plaintiff, who concedes that supervision by rabbis is a prerequisite and is firmly established in New York law, having been enacted into our Penal Law. Kosher poultry costs more than non-kosher. It would be inequitable to permit its sale by any one as kosher unless it is in truth kosher. Whether it is so or not is a religious matter for the rabbis to determine. An overwhelming majority of them support the issur [ban]. The plaintiff cannot obtain the advantages of his business without assuming the disadvantages which necessarily accompany it. In the very nature of things, kashruth must be a monopoly in the hands of those best qualified to administer it. By definition and tradition those persons are the rabbis and their decree is final. Commenting on arguments during the proceedings that centralized supervision was not consistent with Jewish law, the court observed the following: We have heard [centralized supervision] characterized as a revolution in Jewish practice through the adoption and use of diverse means, including secular ones, to a religious end; the abandonment, at least for the occasion, of a congregational for a diocesan organization, and of an individualistic for a collective method of supervision and enforcement. Suffice it to say that this is the business of the orthodox Jews, not of the people of the State of New York. See also, Gastwirt, Fraud, Corruption, and Holiness, 176–181.

63.

People v. Gordon, 16 N.Y.S. 2d 833 (2nd Dept, 1940). The court explained its holding as follows: [I]n view of the conceded fact that poultry slaughtered outside of the city of New York according to the traditional ritual and brought into the city and sold without a “Plumba” is considered kosher, a regulation adopted by a group of orthodox rabbis of the city of New York which forbids the consumption of poultry killed in the city of New York under traditional Hebrew rites, unless there be attached thereto a “plumba,” authorized and issued by the Rabbinate, cannot

182

N OT E S TO PAG E S 32 – 39

be considered an orthodox Hebrew requirement. It is purely a local regulation which seeks to provide the evidence that a killing has been kosher. See also Gastwirt, Fraud, Corruption, and Holiness, 184–186. 64.

Simon, Thirty Years of the New York Kosher Law, 17.

65.

Berman, Shehitah, 347.

66.

Simon, Thirty Years of the New York Kosher Law, 10.

67.

Gastwirt, Fraud, Corruption, and Holiness, 189; Elazar, Kinship & Consent, 268; Joselit, New York’s Jewish Jews, 61; Sarna, American Judaism, 59–61; Weinberger, People Walk on Their Heads, 23.

68.

Weinberger, People Walk on Their Heads, 8.

69.

Sarna, American Judaism, 59–61.

70.

Weinberger, People Walk on Their Heads, 9.

71.

Ibid., 14; Sarna, American Judaism, 91–102.

72.

Weinberger, People Walk on Their Heads, 7.

73.

Gastwirt, Fraud, Corruption, and Holiness, 4; Sarna, American Judaism, 129–134, 156–159.

2 . FROM CANNED SOUP TO PACKAGED NUTS

1.

Harvey Levenstein, Paradox of Plenty: A Social History of Eating in Modern America, rev. ed. (1993; repr., Berkeley: University of California Press, 2003), 47–49; “Howard Johnson’s,” Wikipedia, www.wikipedia .com (accessed December 15, 2011).

2.

Harvey Senter, interview by the author, May 18, 2010.

3.

The 2011–2012 Kosher Supervision Guide (Brooklyn, New York: Kashrus Magazine, 2010), 46, reports a staff of 150. Data on the number of companies and products certified by Kof-K from Kof-K data specialist Esther Moeller, email to the author, May 29, 2012. These numbers are rounded. The actual numbers are 905 companies and 193,586 products as of May 29, 2012.

4.

Harvey Levenstein, Revolution at the Table: The Transformation of the American Diet (1988; repr., Berkeley: University of California Press, 2003), chap. 3.

5.

Ibid.; Nancy Koehn, “Henry Heinz and Brand Creation in the Late Nineteenth Century: Making Markets for Processed Food,” Business History Review 73 (1999): 349–393.

N OT E S TO PAG E S 39 – 4 1

183

6.

Seymour Freedman, The Book of Kashruth: A Treasury of Kosher Facts & Frauds (New York: Bloch, 1970), 81.

7.

Joan Nathan, “A Social History of Jewish Food in America,” in Food and Judaism, ed. Leonard Greenspoon, Ronald Simkins, and Gerald Shapiro (Omaha: Creighton University Press, 2005), 7. Nathan provides no citation for these figures. The same claim appears in James Donner, “The Food Revolution and Kashruth,” Jewish Affairs (November 1965): 18. Unfortunately, Donner also provides no citation. Leading food historian Harvey Levenstein states that in 1910, food processors in the United States produced three billion cans of food per year, a number that rose to thirty billion by 1970. (This does not include foods packaged in glass, cartons, and plastic containers.) Levenstein, Revolution at the Table, 37. See also “1970–2005 Food Can History,” Can Manufacturers Institute, www.cancentral.com (accessed November 15, 2011). The value of manufactured food commodities destined for domestic consumption in 1869 was $6.73 million; by 1900, this figure was $2.1 billion, and by 1919, $9.3 billion. Historical Statistics of the United States: Earliest Times to the Present, Millennial Edition, ed. Susan Carter et al. (New York: Cambridge University Press, 2006), vol. 3, 267. In 1970, the value of manufactured food commodities (for domestic and foreign consumption) reached $98.5 billion. (This figure includes “food and kindred products.”) Statistical Abstract of the United States: 1981 (Washington, DC: GPO, 1981), 778.

8.

See, for example, the following passages in the Babylonian Talmud: Chelev 9a (meat), Avodah Zarah 35b (bread), Avodah Zarah 55b (wine), Avodah Zarah 35b (oil), and Avodah Zarah 29b (cheese). I am grateful to Rabbi Zushe Blech for directing me to these sources.

9.

For a comprehensive introduction to the laws and practices of kosher food production, see Zushe Blech, Kosher Food Production, 2nd ed. (Ames, IA: Wiley-Blackwell, 2008).

10.

Harold Gastwirt, Fraud, Corruption, and Holiness: The Controversy over the Supervision of Jewish Dietary Practice in New York City, 1881–1940 (Port Washington, NY: Kennikat, 1974), 14; Harvey Senter, interview.

11.

Blech, Kosher Food Production, 27–28. Fish, while pareve, may not be mixed with meat. See Blech, Kosher Food Production, 28.

12.

Ibid., 31–47.

13.

Ibid., 47–51, 111–114, 239–242. There is disagreement among religious authorities about whether Jews involved in the production of these foods must be observant. While many authorities allow nonobservant Jews to fulfill the requirement of Jewish involvement in cooking, standard practice among kosher certification agencies today is to employ observant

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Jews. See Blech, Kosher Food Production, 49n18, and Zushe Blech, email to the author, March 23, 2012. 14.

Blech, Kosher Food Production, 89, 478–479. See also David Kraemer, Jewish Eating and Identity through the Ages (New York: Routledge, 2007), 26–28, 66–70, 130–136.

15.

Blech, Kosher Food Production, 71–72.

16.

Ibid., 8–23. See also Sue Fishkoff, Kosher Nation: Why More and More of America’s Food Answers to a Higher Authority (New York: Schocken, 2010), 52–54.

17.

Blech, Kosher Food Production, 3–4; Fishkoff, Kosher Nation, 53–54.

18.

Freedman, Book of Kashruth, 83–84; Donner, “Food Revolution,” 19. Berman, writing in 1941, attributes the higher cost of kosher meat to shipping rather than the cost of kosher slaughter and supervision. Jeremiah Berman, Shehitah: A Study in the Cultural and Social Life of the Jewish People (New York: Bloch, 1941), 309–315. See also Harry Finkelstein, The Kosher Meat Industry (unpublished paper, 1926), 50.

19.

A Hasid is an adherent of a mystical stream of Orthodox Judaism, characterized by strong allegiance to charismatic rabbinic leaders, literally a “righteous person” (Hebrew). Rebbe refers to a Hasidic rabbi who commands unquestioning obedience from his followers (Yiddish). This characterization of Rosenberg as a “guru” and a “rebbe” is from Berel Wein, “Rabbi Alexander Rosenberg—The Truly Kosher Jew,” Jerusalem Post, August 1, 2008, www.rabbiwein.com (accessed June 1, 2010), and Berel Wein, “The Kosher Pioneer” (recorded lecture, Destiny Foundation, 2001), audio download available at www.learnoutloud.com (accessed December 21, 2011); transcript on file with the author.

20.

Saul Bernstein, The Orthodox Union Story: A Centenary Portrayal (Northvale, NJ: Aronson, 1997), 53–54.

21.

Jenna Weissman Joselit, The Wonders of America (New York: Holt, 1994), 172–174.

22.

This evidence of the decline of kashrus observance is from Joselit, Wonders of America, 176–177.

23.

Gastwirt, Fraud, Corruption, and Holiness, 98–111.

24.

Joselit, Wonders of America, 187–189; Hasia Diner, Hungering for America: Italian, Irish, and Jewish Foodways in the Age of Migration (Cambridge, MA: Harvard University Press, 2002), 211–212.

25.

Joselit, Wonders of America, 177–182.

26.

The Haggadah is a book that includes rituals, prayers, and sacred readings used for celebration of the Passover feast. These examples of kosher food marketing are from Joselit, Wonders of America, 195–198.

N OT E S TO PAG E S 4 5 – 47

185

27.

Jenna Weissman Joselit, New York’s Jewish Jews: The Orthodox Community in the Interwar Years (Bloomington: Indiana University Press, 1990), 106, 110–112; Joselit, Wonders of America, 193; Fishkoff, Kosher Nation, 39.

28.

Freedman, Book of Kashruth, 79–80; Gastwirt, Fraud, Corruption, and Holiness, 11, dates the founding of the OU KCS to 1923; according to Louis Bernstein, Challenge and Mission: The Emergence of the EnglishSpeaking Orthodox Rabbinate (New York: Shengold Publishers, 1982), 93, Goldstein was hired by the OU in 1926.

29.

Bernstein, Orthodox Union Story, 92, 93n3, 133; Gastwirt, Fraud, Corruption, and Holiness, 11.

30.

Joselit, New York’s Jewish Jews, 112–113. Compare Bernstein, Orthodox Union Story, 93: “Once it became known that American Orthodox Jewry’s central arm was providing such official service, companies of high standing seeking acceptance of their products by Jewish consumers began, spontaneously, to turn to the Orthodox Union for that purpose.”

31.

Freedman, Book of Kashruth, 79; Gastwirt, Fraud, Corruption, and Holiness, 11; Bernstein, Orthodox Union Story, 132–133; Joselit, New York’s Jewish Jews, 113; Bernstein, Challenge and Mission, 11, 93.

32.

Gastwirt, Fraud, Corruption, and Holiness, 12; Freedman, Book of Kashruth, 84; Bernstein, Challenge and Mission, 11–12, 78, 80–88, 93.

33.

Bernstein, Challenge and Mission, 78–88, 94–98.

34.

Bernstein, Orthodox Union Story, 130–133; Bernstein, Challenge and Mission, 80, 102–103; Saul Framowitz, “How Kosher Is OU? Rabbi Rosenberg Answers Many Loaded Questions,” Young Israel Viewpoint (March– April 1958): 7, 10.

35.

Gastwirt, Fraud, Corruption, and Holiness, 11–12; Bernstein, Challenge and Mission, 104; Freedman, Book of Kashruth, 82, 84; Bernstein, Orthodox Union Story, 130–133; Wein, “Kosher Pioneer.” Compare Yaakov Luban, The Kosher Advantage, www.oukosher.org (accessed December 21, 2011), which has data that reflect fewer companies under OU certification in 1960 (one hundred companies) and 1970 (three hundred companies).

36.

Wein, “Kosher Pioneer.” See also Framowitz, “How Kosher Is OU?” 12.

37.

Donner, “Food Revolution,” 19; Freedman, Book of Kashruth, 83–84; Wein, “Kosher Pioneer,” 6; Ari Senter, interview by the author, May 5, 2010.

38.

Wein, “Kosher Pioneer.”

39.

Ibid.; Berel Wein, email to the author, June 6, 2011. According to Diner, Hungering for America, 212, Crisco was originally under the supervision of Rabbi Moshe Zevulun Margolies (the “Ramaz”) of New York. It is not

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N OT E S TO PAG E S 4 8 – 52

clear whether it still was at the time that Rosenberg acquired the Crisco account. Berel Wein, email to the author, May 20, 2011. 40.

Wein, “Kosher Pioneer.”

41.

Bernstein, Orthodox Union Story, 158.

42.

Ibid.; Wein, “Truly Kosher Jew.”

43.

Framowitz, “How Kosher Is OU?” 10–11.

44.

Zushe Blech, interview by the author, May 9, 2010.

45.

Berel Wein, interview by the author, June 9, 2010.

46.

Zevulun Charlop, interview by the author, May 24, 2010; Aryeh Ralbag, interview by the author, May 27, 2010. Compare Framowitz, “How Kosher Is OU?” 11.

47.

Wein, “Kosher Pioneer.”

48.

Ralbag, interview.

49.

Wein, “Kosher Pioneer.”

50.

Rosenberg eventually retired to Israel and lived comfortably off a modest pension from his congregation and the OU. He does not appear to have made a great deal of money either as a rabbi or as rabbinic administrator of the OU Kosher Division. Nancy Klein (longtime congregant of Rosenberg), telephone interview, September 6, 2011.

51.

Wein, “Kosher Pioneer.” See also Framowitz, “How Kosher Is OU?” 12.

52.

Wein, “Kosher Pioneer.”

53.

Ibid.

54.

Wein has subsequently suggested that companies requested unnecessary kosher certification for products like laundry detergent in order to appeal to kosher consumers and obtain better positioning on store shelves. Wein, interview.

55.

Bernstein, Orthodox Union Story, 131; Donner, “Food Revolution,” 19.

56.

Wein, interview. See also Bernstein, Orthodox Union Story, 252, 329.

57.

Wein, “Kosher Pioneer.”

58.

A mechitza is a partition used to separate men and women during prayer in an Orthodox synagogue. Although there are different views about the minimum height required, most partitions are high enough to prevent men and women from seeing each other during prayer. Anonymous kashrus professional, interview by the author, 2010.

59.

From Rosenberg’s perspective, reliance on RCA-affiliated rabbis and the limited oversight that the central OU office provided was a great improvement over the past. Framowitz, “How Kosher Is OU?” 8.

N OT E S TO PAG E S 52 – 5 8

187

60.

Joselit, New York’s Jewish Jews, 60, 79; Bernstein, Challenge and Mission, 10–13.

61.

Wein, “Kosher Pioneer.”

62.

Harvey Senter, interview.

63.

Ibid.

64.

Ibid.

65.

Ibid.

66.

Ibid. On the importance of trustworthiness in kosher certification, see Shana Starobin and Erika Weinthal, “The Search for Credible Information in Social and Environmental Global Governance: The Kosher Label,” Business and Politics 12 (2010): 11. See also the discussion of ne’emunus in chap. 3.

67.

Harvey Senter, interview.

68.

Don Yoel Levy, interview by the author, June 11, 2010; “OK History,” www.ok.org (accessed June 11, 2010); Gastwirt, Fraud, Corruption, and Holiness, 12; Fishkoff, Kosher Nation, 51.

69.

“OK History”; “Rabbi Berel Levy,” www.ok.org (accessed 6/11/10); Levy, interview. At the time, other agencies typically relied on labels rather than on-site inspection to verify the kosher status of ingredients. Ari Senter, interview; Berel Wein, email to the author, May 31, 2011.

70.

Avrom Pollak, interview by the author, June 2, 2010.

71.

Avrom Pollak, “A 30-Year Retrospective on Kashrus Kurrents,” www.star -k.org (accessed May 31, 2011); Pollak, interview.

72.

Benjamin Shandalov, interview by the author, May 25, 2010; Sholem Fishbane, interview by the author, May 17, 2010; Benjamin Shandalov, email to the author, June 6, 2011.

73.

According to Wein, the only significant change at the OU Kosher Division during his tenure was initiating beef certification. Wein, interview.

74.

Blech, interview.

75.

These figures represent a rough estimate. Lubicom CEO Menachem Lubinsky explains that these data are based on inspection of agency files and interviews with agency personnel at the five largest agencies—the OU, OK, Kof-K, Star-K, and CRC—conducted by Lubicom interns. Lubicom then added 15 percent to the totals to account for companies and products certified by smaller agencies. According to Lubicom, lack of standardization among agency files and intern counting may have led some interns to count not only industrial food manufacturers as companies but also retail stores. Some interns counted each plant as a separate

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N OT E S TO PAG E S 59 – 6 1

company or private label agreements as separate companies. Similarly, there was variation in how the interns counted products. Some counted each product variation within a brand as a separate product (e.g., lemon seltzer, cherry seltzer, orange seltzer), while others counted the general product category only once (e.g., flavored seltzer). Menachem Lubinsky, emails to the author, September 9, 2011, and April 2, 2012. Data prior to 2009 are from two unpublished charts provided by Lubicom. The 2009 data are from Lubicom Marketing Consulting, “The Kosher Food Market 2009” (unpublished report). Data from 2011 are from Lubicom Marketing Consulting, “The Kosher Food Market 2011” (unpublished report). Lubicom publishes current data at “Kosher Statistics,” www.lubicom .com (accessed May 15, 2012). 76.

Levenstein, Paradox of Plenty, 217–224; Fishkoff, Kosher Nation, 3.

77.

Fishkoff, Kosher Nation, chap. 1; Lubicom Marketing Consulting, “The Kosher Food Market 2011.”

78.

Luban, Kosher Advantage; Fishkoff, Kosher Nation, 54.

79.

Menachem Genack, interview by the author, May 24, 2010. On butter in particular, see Blech, Kosher Food Production, 227–229. The largest five agencies alone certify more than 1.1 million products, including both ingredients and retail items. See data concerning the relative size of the Big Five agencies in chap. 3 and the further discussion of these data in appendix D.

80.

Luban, Kosher Advantage; Yaakov Luban, interview by the author, May 27, 2010; Ari Senter, interview; Genack, interview; Fishkoff, Kosher Nation, 54, 195, 200, 206; David Cahan, “A Day in the Life of Rabbi Sholem Yehuda Fishbane of the CRC,” Hamodia, September 30, 2009, 12.

81.

Luban, Kosher Advantage; “Store Brands Achieving New Heights of Consumer Popularity and Growth,” www.plma.com (accessed December 21, 2011).

82.

Fishkoff, Kosher Nation, 55, states that “[t]he OU alone receives about seventy-five new certification requests per month.”

83.

Luban (OU), Kosher Advantage; Genack (OU), interview; Levy (OK), interview; Fishbane (CRC), interview. Compare Fishkoff, Kosher Nation, 204, discussing agency promotional efforts at food-industry trade shows.

84.

Shandalov, interview.

85.

Yaakov Luban, email to the author, June 7, 2011.

86.

Fishkoff, Kosher Nation, 52.

87.

Ibid.

88.

2010 Kosher Supervision Guide (Brooklyn, NY: Kashrus Magazine, 2010), 25–26; Fishkoff, Kosher Nation, 51; Moshe Bomzer, interview by the author, May 4, 2010.

N OT E S TO PAG E S 6 1 – 6 4

189

89.

Luban, Kosher Advantage.

90.

The 2011–2012 Kosher Supervision Guide reports a staff size of six hundred. Fishkoff, Kosher Nation, 75, asserts that “more than one thousand” mashgichim work for the OU. Data on the number of clients and products from Menachem Genack, email to the author, April 18, 2012.

91.

Shandalov, interview; Fishbane, interview; Levy, interview; Harvey Senter, interview; Genack, interview; Pollak, interview.

92.

Genack, interview. On Rosenberg’s attitude toward critics, see Wein, “Kosher Pioneer.”

93.

“OU Kosher: Bringing the Boom for Business & Consistent Quality to Consumers,” www.oukosher.org (accessed May 29, 2011); “Tracking Down the Unauthorized OU,” www.oukosher.org (accessed July 20, 2011); Blech, Kosher Food Production, 17; Genack, interview; Moshe Elefant, interview by the author, May 24, 2010; Luban, interview; Yosef Eisen, “Organizing a Local Vaad Hakashruth” (recorded lecture, OU, n.d.), audio download available at www.oukosher.org (accessed December 21, 2011).

94.

Elefant, interview; OU Kosher Staff Directory 2010, ed. Michael Morris (New York: Orthodox Union Kosher Certification Service, 2010); “The Certification Process,” www.oukosher.org (accessed December 22, 2011).

95.

OU Kosher Staff Directory.

96.

Ari Senter, interview; Pollak, interview; Levy, interview; Fishbane, interview.

97.

Fishkoff, Kosher Nation, 39–51; Genack, interview. Training and educational materials can be found on the following agency websites: “OU Kosher.org,” www.oukosher.org (accessed December 22, 2011); “Star-K Virtual Kosher University,” www.kosherclasses.org (accessed December 22, 2011); “Kashrus Kurrents Articles,” www.star-k.org (accessed December 22, 2011); “Corporate Profile,” www.ok.org (accessed June 11, 2010); “Kof-K Kosher,” www.kof-k.org (accessed December 22, 2011); “Kosher,” www.crcweb.org (accessed December 22, 2011).

98.

Fishkoff, Kosher Nation, 75–76.

99.

Shandalov, interview.

100.

Avrom Pollak, telephone conversation with the author, September 7, 2011.

101.

Luban, Kosher Advantage. See also Fishkoff, Kosher Nation, 216; Moshe Elefant “The State of the (Orthodox) Union” (recorded lecture, Orthodox Union, n.d.) audio download available at www.oukosher.org (accessed December 22, 2011).

102.

Blech, interview.

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N OT E S TO PAG E S 6 5 – 6 8

103.

Harvey Senter, interview.

104.

Yaakov Luban, “At Last, the UDB Becomes a Reality,” Behind the Union Symbol (Winter 2006): 1, 8; “Technology,” www.ok.org (accessed December 22, 2011); Ari Senter, interview; Pollak, interview; Fishbane, interview.

105.

Shandalov, interview; Harvey Senter, interview.

106.

During interviews for this book at the OU central office in New York City, Genack and OU rabbinic coordinators took calls and responded to incoming emails from other rabbinic coordinators, rabbinic field representatives, and companies every few minutes. Follow-up questions for the book frequently received instant responses, even as early as 6:00 a.m. and as late as 2:00 a.m.

107.

Fishkoff, Kosher Nation, 70. See, for example, www.oukosher.org (accessed December 22, 2011); www.star-k.org (accessed December 22, 2011); www.ok.org (accessed June 11, 2010); www.kof-k.org (accessed December 22, 2011); www.crcweb.org (accessed December 22, 2011).

108.

Fishkoff, Kosher Nation, 33.

109.

Elefant, “State of the (Orthodox) Union.”

110.

See Fishkoff, Kosher Nation, 82–84.

111.

Levy, interview.

112.

Shandalov, interview. Jenna Weissman Joselit elegantly demonstrates how the development of kosher certification was part of a more general institutionalization of Jewish life in America. The synagogue developed from the shteibel to become the “preeminent Jewish institution.” Reforms at the Rabbi Isaac Elchanan Theological Seminary of Yeshiva University produced a more professional American Orthodox Rabbinate. The Rabbinical Council of America promulgated religious rulings that standardized ritual practice. Kosher certification was an integral part of these developments. New York’s Jewish Jews, 53–54, 71–80, 130.

113.

Max Weber, The Theory of Social and Economic Organization, trans. A. Henderson and Talcott Parsons (New York: Free Press, 1947), 338; Marc Olshan, “Standards-Making Organizations and the Rationalization of American Life,” Sociological Quarterly 34 (1993): 320, 324.

114.

Of course, agencies have not only profited from the demand for kosher certification but have also helped create it. The development of industrial kosher certification is also a story about the marriage of ancient foodways and modern marketing.

115.

Marshall Dimock, “Bureaucracy Self-Examined,” in Reader in Bureaucracy, ed. Robert Merton et al. (New York: Free Press, 1952), 398; J. Donald Kingsley, “The Execution of Policy,” in Merton et al., Reader in Bureaucracy, 216.

N OT E S TO PAG E S 6 8 –7 3

191

116.

Chester Barnard, “The Functions of Status Systems,” in Merton et al., Reader in Bureaucracy, 242.

117.

James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It, new ed. (New York: Basic Books, 2000), 109–110.

118.

Anonymous kashrus professional, interview by the author, 2010.

119.

John Meyer and Brian Rowan, “Institutionalized Organizations: Formal Structure as Myth and Ceremony,” American Journal of Sociology 83 (1977): 340.

3. SOUR GR A P E S A ND S E L F- R E GU L AT IO N

1.

My account of the vinegar scandal relies on Don Yoel Levy, interview by the author, June 11, 2010; Zushe Blech, interview by the author, May 9, 2010; “Young Israel President Calls for Full Kashruth Disclosure in Wake of Scandal,” Jewish Press, June 13, 1986; Bernard (Berel) Levy, “Keeping Kosher: Alcohol, Vinegar, and a Personality Clash,” Jewish Homemaker (February–March 1987), 15–18; David Kraemer, Jewish Eating and Identity through the Ages (New York: Routledge, 2007), 149–150; Sue Fishkoff, Kosher Nation: Why More and More of America’s Food Answers to a Higher Authority (New York: Schocken, 2010), 261.

2.

“Young Israel President Calls for Full Kashruth Disclosure.”

3.

“The Credibility Crisis in Kashruth,” Young Israel Viewpoint, May 1986, 1 (discussed in Kramer, Jewish Eating, 149–150).

4.

Joseph Rees, Hostages of Each Other: The Transformation of Nuclear Safety since Three Mile Island (Chicago: University of Chicago Press, 1994), 2, 44–45. See also Mitchel Abolafia, Making Markets: Opportunism and Restraint on Wall Street (Cambridge, MA: Harvard University Press, 1996), 41, on the “paradox of dependence versus independence” among financial securities traders.

5.

Kashrus professionals commonly refer to the OU, OK, Kof-K, Star-K, and the CRC as the “Big Five.” Menachem Genack, interview by the author, May 24, 2010; Harvey Senter, interview by the author, May 18, 2010; Avrom Pollak, interview by the author, June 2, 2010; Sholem Fishbane, interview by the author, May 17, 2010; Aryeh Ralbag, interview by the author, May 27, 2010. The term “American Standard of Kashrus” appears in Yosef Wikler, “Inside the 2010 Kosher Supervision Guide,” in 2010 Kosher Supervision Guide (Brooklyn, NY: Kashrus Magazine, 2010), 7.

6.

Levy, interview.

7.

Www.crcweb.org (accessed December 29, 2011).

8.

Levy, interview; Zecharia Tzvi Goldman, interview by the author, May 10, 2010.

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N OT E S TO PAG E S 74 – 8 0

9.

This figure is cited by Fishkoff, Kosher Nation, 7, and was confirmed by Menachem Lubinsky, email to the author, September 8, 2011. It appears to be based on a rough estimate by kosher marketing analyst Menachem Lubinsky and widely accepted among those in the kosher certification industry. This figure is consistent with the supermarket survey data discussed later and in Appendix E.

10.

Earnings information for most agencies is unavailable. Among the Big Five, only Star-K publishes its earnings. In 2009, Star-K reported $6.6 million of revenue from certification fees. “Form 990 2009,” www2.guide star.org (accessed December 29, 2011).

11.

Menachem Genack, email to the author, April 18, 2012 (OU data); Levi Marmulszteyn, telephone conversation with the author, June 5, 2012 (OK data); Esther Moeller, email to the author, May 29, 2012 (Kof-K data); Dovid Heber, email to the author, May 9, 2012 (Star-K data); Sholem Fishbane, email to the author, May 16, 2012 (CRC data).

12.

The data for OU, OK, and Kof-K are from the 2011–2012 Kosher Supervision Guide (Brooklyn, NY: Kashrus Magazine, 2010). The data for Star-K are from Avrom Pollak, telephone conversation with the author, September 7, 2011 (estimating staff size of 150–200). The data for CRC are from Sholem Fishbane, interview by the author, September 12, 2011 (estimating staff size of 175–200).

13.

Harvey Senter, interview.

14.

Zev Steen, telephone conversation with Benjamin Pomerance (research assistant to the author), November 8, 2011.

15.

Pollak, interview.

16.

Fishbane, interview.

17.

Benjamin Pomerance, “Visitor Traffic on Websites of Major U.S. Kosher Certification Agencies,” unpublished memorandum to the author, November 16, 2011. According to Pomerance, Star-K reported 1,500–1,600 unique visitors to its website on an average day and approximately 34,000 unique visitors between October 7 and November 6, 2011; OK reported 14,536 unique visitors between October 10 and November 10, 2011, and Kof-K more vaguely reported visits from “thousands” of people per day. While the CRC did not provide website data, Site Analytics, www.siteanalytics.compete.com (accessed September 7, 2011) suggests that the CRC had 3,000–14,600 unique visitors per month in the first half of 2011, depending upon the month.

18.

“Checking Strawberries for Bugs,” www.youtube.com (accessed June 8, 2012).

19.

Pomerance, “Visitor Traffic.”

N OT E S TO PAG E S 8 0 – 8 6

193

20.

2011–2012 Kosher Supervision Guide (Brooklyn, NY: Kashrus Magazine, 2010), 26.

21.

Goldman, interview.

22.

Ari Senter, interview by the author, May 5, 2010.

23.

2011–2012 Kosher Supervision Guide, 23–43.

24.

Ralbag, interview; Aryeh Ralbag, telephone conversation with the author, September 7, 2011; Goldman, interview.

25.

Levy, interview; Ralbag, interview; Harvey Senter, interview; Goldman, interview.

26.

For example, in companies not owned by Orthodox Jews, the Bet Din Tzedek of Tartikov requires the constant oversight of a mashgiach temidi during production. Shmiel Teitelbaum, interview by the author, June 9, 2010; 2010 Kosher Supervision Guide, 62.

27.

Ralbag, interview; “About Us,” www.trianglek.org (accessed December 29, 2011).

28.

“Home,” www.trianglek.org (accessed December 29, 2011).

29.

“Directory of Kosher Certifying Agencies,” www.crcweb.org; Blech, interview.

30.

Anonymous kashrus professional, interview by the author, 2010.

31.

Anonymous kashrus professional, interview by the author, 2010. Rabbi Ralbag responded in emails to the author on March 25, 2012, and April 3, 2012, and in a telephone conversation with the author on April 16, 2012. The original allegation was reaffirmed by the original source in phone conversations with the author on April 2 and 3, 2012.

32.

Anonymous kashrus agency executive, interview by the author, 2010.

33.

Anonymous kashrus agency executive, interview by the author, 2010.

34.

Wikler, “Inside the 2010 Kosher Supervision Guide,” 7.

35.

Blech, interview; Berel Wein, interview by the author, June 9, 2010; Abraham Halbfinger, interview by the author, May 26, 2010.

36.

Sholem Fishbane, “Understanding the Reliability of Kosher Agencies,” www.crcweb.org (accessed December 29, 2011).

37.

Ibid.

38.

See Kraemer, Jewish Eating, 147–149.

39.

Kenneth Lasson, “Hebrew National & Kosher Politics: What’s Kosher about Answering to a Higher Authority?” Baltimore Jewish Times, July 13, 2009, www.rabbicreditor.blogspot.com (accessed May 23, 2010).

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40.

Ralbag, interview.

41.

Lasson, “Hebrew National & Kosher Politics.”

42.

Ibid.

43.

Anonymous interview, 2011. This story was confirmed by Aryeh Ralbag, telephone conversation with the author, September 7, 2011.

44.

Kraemer, Jewish Eating, 149–155.

45.

Samuel C. Heilman, Sliding to the Right: The Contest for the Future of American Jewish Orthodoxy (Berkeley: University of California Press, 2006), 2–4. See also Kraemer, Jewish Eating, 160–169; Fishkoff, Kosher Nation, 173–174.

46.

Yaakov Luban, interview by the author, May 27, 2010.

47.

Yaakov Luban, “The State of Communal Kashrus,” unpublished manuscript, 4.

48.

Wein, interview.

49.

Berel Wein, The Kosher Pioneer (recorded lecture, Destiny Foundation, 2001), audio download available at www.learnoutloud.com (accessed December 21, 2011); transcript on file with the author.

50.

Moshe Elefant, “The State of the (Orthodox) Union” (recorded lecture, Orthodox Union, n.d.), audio download available at www.oukosher.org (accessed December 22, 2011).

51.

Pollak, interview.

52.

Joe Regenstein, email to the author, February 16, 2012.

53.

See, for example, Fishkoff, Kosher Nation, 261–264; Kraemer, Jewish Eating, 153, 154, 160; Luban, “Communal Kashrus,” 6–7; Blech, interview.

54.

Anonymous kashrus industry insider, interview by the author, 2010.

55.

Genack, interview.

56.

David Cahan, “A Day in the Life of Rabbi Sholem Yehuda Fishbane of the CRC,” Hamodia, September 30, 2009, 11–12.

57.

Pollak, interview.

58.

Fishkoff, Kosher Nation, 263.

59.

Ralbag, interview. Interpersonal relationships such as these are not static. According to members of the Ralbag family, Harvey Senter and Berel Levy used to call Jehoseph Ralbag regularly for advice when they were starting Kof-K and OK, respectively. Increasing competition between the agencies led to a souring of these mentoring relationships, and today there is little cooperation between the sons. Yehudah Kronengold, inter-

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195

view by the author, June 28, 2011; Aryeh Ralbag, telephone conversation with the author, September 7, 2011. 60.

Kraemer, Jewish Eating, 168.

61.

Incident witnessed by the author.

62.

See Adin Steinsaltz, The Talmud: A Reference Guide (New York: Random House, 1989), 236–237; Moshe Feinstein, Responsa: The Letters of Moshe (Igrot Moshe), Yoreh De’ah 1:54, 2:43.

63.

Benjamin Shadalov, letter to rabbinic administrators, September 27, 1985, AKO Archives, Chicago Rabbinical Council, Chicago.

64.

Kashruth Conference, event program, November 11–12, 1985, AKO Archives, Chicago Rabbinical Council, Chicago.

65.

Ibid.

66.

Benjamin Shandalov, “Proposed Outline for Organization,” n.d., AKO Archives, Chicago Rabbinical Council, Chicago.

67.

“Kashruth Division Hosts Conference for 16 National Vaadim,” Jewish Action (Spring 1986): 44, AKO Archives, Chicago Rabbinical Council, Chicago.

68.

Benjamin Shandalov, letter to Irving Silverman, August 28, 1986, AKO Archives, Chicago Rabbinical Council, Chicago.

69.

Sidney Applbaum, “Memorandum,” May 25, 1986, AKO Archives, Chicago Rabbinical Council, Chicago.

70.

“Kashrus Computer Network Established,” press release, September 16, 1986, AKO Archives, Chicago Rabbinical Council, Chicago.

71.

Avrom Pollak, letter to ACKO members, August 20, 1986, AKO Archives, Chicago Rabbinical Council, Chicago.

72.

Hyman Flaks, letter to Benjamin Shandalov, April 3, 1987, AKO Archives, Chicago Rabbinical Council, Chicago; Vaad Hoeir of St. Louis, “Memorandum,” May 1, 1987, AKO Archives, Chicago Rabbinical Council, Chicago.

73.

“Minutes of the 5th National Conference, NYC—November 10 & 11, 1987,” AKO Archives, Chicago Rabbinical Council, Chicago.

74.

“Minutes of A.C.K.O.’s 7th Conference—December 12, 13, 14, 1989,” AKO Archives, Chicago Rabbinical Council, Chicago; “Telephone Minutes—August 31, 1988,” September 6, 1988, AKO Archives, Chicago Rabbinical Council, Chicago. According to one account, Kof-K was dissatisfied with one peer review because its client complained that the ACKO reviewer was disorganized and interfered unnecessarily with plant operations. Kof-K was dissatisfied with the second peer review because of

196

N OT E S TO PAG E S 9 5 – 9 7

long-standing personal animosity between Harvey Senter and the ACKO reviewer. Moshe Heisler, telephone conversation with the author, September 23, 2011. 75.

“Minutes of A.C.K.O.’s 7th Conference.”

76.

“Minutes of the Tenth Meeting of AKO,” March 2, 1992, AKO Archives, Chicago Rabbinical Council, Chicago.

77.

“Presentation by Rabbi Shandalov at the ACKO Conference 5/12–13/87, St. Louis,” presenter’s notes, AKO Archives, Chicago Rabbinical Council, Chicago.

78.

Kashruth Conference, event program, November 11–12, 1985, AKO Archives, Chicago Rabbinical Council, Chicago; Summer 1986 Kashrus Conference of the Association of Communal Kashrus Organizations, event program, August 5–6, 1986, AKO Archives, Chicago Rabbinical Council, Chicago; “4th National Conference of ACKO: Association of Community Kashrus Organizations,” conference agenda, May 12–13, 1987, AKO Archives, Chicago Rabbinical Council, Chicago; Mid-Winter Kashrus Conference, event program, February 18–19, 1986, AKO Archives, Chicago Rabbinical Council, Chicago; “Minutes of the 6th ACKO Conference, Woodmere—November 8 & 9, 1988,” AKO Archives, Chicago Rabbinical Council, Chicago; “Minutes of A.C.K.O.’s 7th Conference”; “AKO Conference, November 1, 1993—Agenda,” AKO Archives, Chicago Rabbinical Council, Chicago.

79.

“Minutes of the 6th ACKO Conference, Woodmere.” See also Sheldon Blech, letter to Benjamin Shandalov, November 22, 1985, AKO Archives, Chicago Rabbinical Council, Chicago.

80.

“Minutes of Meeting of November 1, 1993,” AKO Archives, Chicago Rabbinical Council, Chicago.

81.

Ralbag, interview.

82.

“AKO Members,” www.akokosher.org, (accessed December 30, 2011); Sholem Fishbane, telephone conversation with the author, April 23, 2012.

83.

“Minimum Standards,” document distributed at AKO conference in New York City, October 28, 2010, on file with the author.

84.

Fishbane, interview.

85.

Ibid.

86.

Committee list, document distributed at AKO conference in New York City, October 28, 2010, on file with the author.

87.

Fishbane, interview.

N OT E S TO PAG E S 9 7– 9 8

197

88.

Luban, “Communal Kashrus,” 6; Yaakov Luban, “Organizing a Local Vaad Hakashruth” (recorded lecture, Orthodox Union, n.d.), audio download available at www.oukosher.org (accessed December 30, 2011).

89.

Halbfinger, interview.

90.

Blech, interview.

91.

On the use of supply-chain power, see, see Neil Gunningham, Peter Grabosky, and Darren Sinclair, Smart Regulation: Designing Environmental Policy (New York: Oxford University Press, 1998), 223; Benjamin Cashore, Graeme Auld, and Deanna Newsom, Governing through Markets: Forest Certification and the Emergence of Non-State Authority (New Haven, CT: Yale University Press, 2004), 23; Fabrizio Cafaggi, “Transnational Governance by Contract: Private Regulation and Contractual Networks in Food Safety,” in Private Standards and Global Governance: Legal and Economic Perspectives, ed. Axel Marx, Miet Maertens, Johan Swinnen, and Jan Wouters (Cheltenham, UK: Elgar, 2012),195–234.

92.

Goldman, interview.

93.

On peer pressure, see Abolafia, Making Markets, 188.

94.

OK distributes more than 600,000 copies of its triannual Kosher Spirit and 8,000 copies of its quarterly newsletter, Quick Kosher, aimed at kashrus and food-industry professionals; Chaim Fogelman, telephone conversation with Benjamin Pomerance, January 8, 2012. Star-K distributes 75,000–80,000 copies of its quarterly Kashrus Kurrents; Avrom Pollak, telephone conversation with the author, September 7, 2011. The OU distributes 15,000 copies of its quarterly Behind the Union Symbol and 2,000 copies of its newsletter for kashrus professionals, Daf Hakashrus, published ten times per year; Eli Eleff, email to Michelle Mallette, November 3, 2011. Kof-K distributes 10,000 copies of its Kashrus Newsletter, published before major holidays; Harvey Senter, telephone conversation with the author, September 20, 2011. The CRC distributes 570 copies of its bimonthly Kosher Consumer newsletter; Shalva Meyers, email to the author, September 8, 2011. All figures include postal and electronic subscribers but not online viewers who are not subscribed.

95.

Steen, telephone conversation; Pomerance, “Visitor Traffic.”

96.

“Directory of Certifying Agencies,” www.crcweb.org (accessed January 2, 2012).

97.

Yaakov Luban, telephone conversation with the author, April 17, 2012; Levy, interview.

98.

Personal experience of the author.

99.

In game theory, this is known as “tit for tat.” See Robert Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge, MA: Harvard University Press, 1994), 164–166.

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100.

Ralbag, interview.

101.

Blech, interview.

102.

Levy, interview.

103.

Ralbag, interview.

104.

Ari Senter, interview. For an overview of antitrust implications, see Appendix B.

105.

For elaboration of the Jewish law concept of tortious interference with the livelihood of another (yored l’omanut chavero), see the commentary of the Rama on Shulchan Aruch, Choshen Mishpat 156:5.

106.

Genack, interview.

107.

Levy, interview.

108.

Untitled draft of AKO competition policy, presented at AKO conference on November 9, 1992, AKO Archives, Chicago Rabbinical Council, Chicago.

109.

Mayer Bendet, letter to Avrom Pollak, February 4, 1993, AKO Archives, Chicago Rabbinical Council, Chicago, Illinois; Heisler, telephone conversation.

110.

Sholem Fishbane, telephone conversation with the author, April 23, 2012.

111.

Ralbag, interview.

112.

Halbfinger, interview.

113.

Fishbane, “Understanding the Reliability.”

114.

Wikler, “Inside the 2010 Kosher Supervision Guide,” 7.

4. TAKING STO CK

1.

“Ghosts Haunting Freshwater Fish Marketing Corp.,” Winnipeg Free Press, January 20, 2008, www.winnipegfreepress.com (accessed January 3, 2012).

2.

Leah Koenig, “The Kosher Fish Scandal,” Jew and the Carrot, www.jcarrot .org (accessed January 3, 2012).

3.

Sue Fishkoff, Kosher Nation: Why More and More of America’s Food Answers to a Higher Authority (New York: Schocken, 2010), 265.

4.

A. Nuran, comment on “First there was Kosher Water and then there was Kosher Dog Food,” Frum Satire, www.frumsatire.net (accessed July 15, 2011), April 14, 2011.

5.

Don Yoel Levy, interview by the author, June 11, 2010.

N OT E S TO PAG E S 1 0 5 – 1 0 8

199

6.

“Kashrus FAQ,” www.oukosher.org (accessed July 11, 2011); “Styrofoam Cups and Aluminum Foil,” www.oukosher.org (accessed July 11, 2011).

7.

Yaakov Luban, telephone conversation with the author, April 17, 2012.

8.

On comparative institutional analysis, see Neil Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (Chicago: University of Chicago Press, 1994), 3; Peter Schuck, The Limits of Law: Essays on Democratic Governance (Boulder, CO: Westview, 2000), 424; Ross Cheit, Setting Safety Standards: Regulation in the Public and Private Sectors (Berkeley: University of California Press, 1990), 17, 193; David Vogel, “Taming Globalization? Civil Regulation and Corporate Capitalism,” in The Oxford Handbook of Business and Government, ed. David Coen, Wyn Grant, and Graham Wilson (New York: Oxford University Press, 2010), 472.

9.

Neil Gunningham and Joseph Rees, “Industry Self-Regulation: An Institutional Perspective,” Law and Policy 19 (1997): 397–398. See also Ian Ayers and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (New York: Oxford University Press, 1995); Tetty Havinga, “Private Regulation of Food Safety by Supermarkets,” Law & Policy 28 (2006): 518; Edward Balleisen and Marc Eisner, “The Promise and Pitfalls of Co-Regulation: How Governments Can Draw on Private Governance for Public Purpose,” in New Perspectives on Regulation, ed. David Moss and John Cisternino (Cambridge, MA: Tobin Project, 2009), 127; Neil Gunningham, Peter Grabosky, and Darren Sinclair, Smart Regulation: Designing Environmental Policy (New York: Oxford University Press,1998), 14–15.

10.

Baruch Cywiak, “The Unauthorized Kosher Symbol,” www.oukosher.org (accessed July 20, 2011); Baruch Cywiak, “Unauthorized OU’s [sic]” (recorded lecture, Orthodox Union, n.d.), audio download available at www.oukosher.org (accessed January 3, 2012).

11.

Howard Katzenstein, “Tracking Down the Unauthorized OU,” www.ou kosher.org (accessed January 3, 2012).

12.

Howard Katzenstein, interview by the author, May 24, 2010.

13.

“Kosher Alerts,” www.ok.org (accessed January 11, 2012).

14.

Don Yoel Levy, telephone conversation with the author, January 4, 2012.

15.

Avrom Pollak, telephone conversation with the author, September 7, 2011.

16.

Ari Senter, interview by the author, May 5, 2010.

17.

Abe Sharp, email to the author, January 24, 2012.

18.

For an account of the vinegar scandal of 1986, see chap. 3.

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19.

My account of the Shelat scandal relies on James Gordon, “ ‘Koshergate’: People v. United Poultry, Inc., et al. No. 87 Ch 10697,” Decalogue Journal (September 1988): 20; Shayna Sigman, “Kosher without Law: The Role of Nonlegal Sanctions in Overcoming Fraud within the Kosher Food Industry,” Florida State University Law Review 31 (2004): 568–571; Jerry Crimmins, “Kosher Meat Recalled in Suit over Labeling,” Chicago Tribune, November 6, 1987, C5; Zushe Blech, interview by the author, February 27, 2012.

20.

Blech, interview. Kosher alerts are posted on agency websites. See, for example, “Consumer Alerts and Advisories,” www. oukosher.org (accessed May 15, 2012).

21.

Response to Freedom of Information Law (FOIL) Request #12–63, June 6, 2012 (on file with the author). The New York State Department of Agriculture reports approximately one hundred total violations of the New York kosher fraud statute each year among the more than 340,000 kosher products sold in the state. This figure includes retail and food service as well as industrial food production. Sigman, “Kosher without Law”; New York State Department of Agriculture & Markets 2007 Annual Report, www.agriculture.ny.gov (accessed January 3, 2012), 17.

22.

Moshe Elefant, interview by the author, May 24, 2010. For more detailed discussion of the economics of industrial kosher certification, see chap. 2. For more detailed discussion of AKO guidelines, see chap. 3.

23.

Elefant, interview; Blech, interview.

24.

Zushe Blech, telephone conversation with the author, February 22, 2012.

25.

Avrom Pollak, telephone conversation with the author, May 3, 2012; anonymous agency official, telephone interview, 2012; Bernard (Berel) Levy, “Keeping Kosher: Alcohol, Vinegar, and a Personality Clash,” Jewish Homemaker (February–March 1987), 15.

26.

Department of Health and Human Services, Office of Inspector General, “Vulnerabilities in FDA’s Oversight of State Food Facility Inspections,” December 2011, oig.hhs.gov (accessed January 10, 2012), 7–9.

27.

Benjamin Pomerance, “State Kosher Fraud Laws,” unpublished memo on file with the author, August 1, 2011; Benjamin Pomerance, email to the author, July 14, 2011.

28.

Pomerance, “State Kosher Fraud Laws.”

29.

Bill Kent, “In Person: You Don’t Have to Be Jewish,” New York Times, April 4, 1999, NJ4; Yakov Dombroff, interview by the author, August 17, 2011; Pomerance, “State Kosher Fraud Laws”; Joe Rothstein, telephone conversation with the author, May 4, 2012.

N OT E S TO PAG E S 1 1 2 – 1 1 5

201

30.

Luzer Weiss, interview by the author, August 3, 2011; Sigman, “Kosher without Law,” 573; New York State Department of Agriculture & Markets 2007 Annual Report, 17.

31.

Devra Ferst, “New York State Agriculture Department Dismisses Its Kosher Law Enforcement Inspectors,” www.forward.com (accessed July 8, 2011); Weiss, interview.

32.

Kristin Morgan, “The Constitutionality of New Jersey Kosher Food Regulation under the Establishment Clause: Ran-Dav’s County Kosher v. State 608 A.2d 1353 (N.J. 1992), cert. denied, 113 S. Ct. 1366 (1993),” University of Cincinnati Law Review 62 (1993): 248; Ran-Dav’s County Kosher v. State, 608 A.2d 1353 (N.J. 1992).

33.

Ran-Dav’s County Kosher, 1364–1366.

34.

New Jersey Administrative Code §13:45A-21.1–8. While New Jersey amended the administrative regulations struck down in the Ran-Dav’s case, the state fraud statute still defines “kosher” as “prepared under and maintained in strict compliance with the laws and customs of the Orthodox Jewish religion.” New Jersey Statutes, § 2C:21–7.2 (2011). See Ran-Dav’s County Kosher, 579 A.2d 316 (N.J. Super. 1990) (provisions of New Jersey kosher fraud statute not subject to challenge by the plaintiffs).

35.

1915 New York Laws, chap. 233.

36.

See New York Agricultural & Markets Law, §201a–d (2010); Maryland Code Annotated, §14.901–907 (2010); Official Code of Georgia Annotated, §10–1–393.11 (2010).

37.

2004 Minnesota Chapter Law 232.

38.

Fishkoff, Kosher Nation, 256.

39.

Weiss, interview.

40.

Missouri Revised Statutes, §196.165 (2012); Weiss, interview.

41.

Even the largest fraud involving mislabeling of kosher foods—the Shelat kosher meat scandal in the late 1980s—did not result in prison time for the perpetrators. See William C. Hidlay, “Companies Accused in Kosher Fraud Agree to Settlement,” AP Online, February 26, 1988, www.westlaw .com at 1988 WL 3770784 (accessed June 10, 2011).

42.

Fishkoff, Kosher Nation, 258; Dombroff, interview.

43.

Fishkoff, Kosher Nation, 258–259; Dombroff, interview.

44.

Katherine Marsh, “Busting Chops,” Legal Affairs, www.legalaffairs.org (accessed May 4, 2010). Compare Tetty Havinga, “On the Borderline between State Law and Religious Law: Regulatory Arrangements Connected to Kosher and Halal Foods in the Netherlands and the United

202

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States,” in Private Food Law: Governing Food Chains through Contract Law, Self-Regulation, Private Standards, Audits, and Certification Schemes, ed. Bernd van der Meulen (Wageningen, the Netherlands: Wageningen Academic Publishers, 2011), 269, 278, finding “an important role for legislators, governmental enforcement agencies and courts in kosher labeling.” 45.

On expertise in private regulation, see Edward Balleisen, “The Prospects for Effective Coregulation in the United States: A Historian’s View from the Early Twenty-First Century,” in Government and Markets: Toward a New Theory of Regulation, ed. Edward Balleisen and David Moss (New York: Cambridge University Press, 2010), 454; Cheit, Setting Safety Standards, 14–15, 196–202; Gunningham, Grabosky, and Sinclair, Smart Regulation, 200.

46.

On responsiveness and accountability in private regulation, see Tim Buthe, “Global Private Politics: A Research Agenda,” Business and Politics 18 (2010): 18; Doris Fuchs, Agni Kalfagianni, and Tetty Havinga, “Actors in Private Food Governance: The Legitimacy of Retail Standards and Multistakeholder Initiatives with Civil Society Participation,” Agriculture and Human Values (August 13, 2009), springerlink.com (accessed June 12, 2012); Daniel Esty, “Good Governance and the Supranational Scale: Globalizing Administrative Law,” Yale Law Journal 115 (2005): 1490; J. J. Boddwyn, Advertising Self-Regulation and Outside Participation (Westport, CT: Greenwood, 1988), 11; Cheit, Setting Safety Standards, 212–218. For an overview of critiques suggesting that government regulation often lacks accountability, see Jerry Mashaw, Richard Merrill, and Peter Shane, Administrative Law: The American Public Law System, 6th ed. (St. Paul, MN: West, 2009), 34–45, 49–56. Kraemer’s theory of stringency as a strategy for separation is set forth in David Kraemer, Jewish Eating and Identity through the Ages (New York: Routledge, 2007), 149–155.

47.

Government agencies could charge fees for kosher inspection, but none do. Proposals to charge food companies fees to defray the cost of federal food-safety inspection have elicited strong industry opposition. See, for example, Helena Bottemiller, “Hamburg: FDA Needs More Resources for Food Safety,” Food Safety News, March 1, 2012, www.foodsafetynews .com (accessed April 10, 2012).

48.

Cywiak, “Unauthorized OU’s [sic].”

49.

On the coverage of private regulators, see Balleisen, “Effective Coregulation,” 455; Gunningham, Grabosky, and Sinclair, Smart Regulation, 200. On the role of consumer networks in kosher food regulation, see Katzenstein, “Tracking Down the Unauthorized OU”; Sigman, “Kosher without Law,” 534–536, 565; Shana Starobin and Erika Weinthal, “The Search for Credible Information in Social and Environmental Global Gover-

N OT E S TO PAG E S 1 1 7– 1 1 9

203

nance: The Kosher Label,” Business and Politics 12 (2010): 13. On the transcendence of national boundaries by private regulators, see Balleisen, “Effective Coregulation,” 464; Tim Buthe, “Private Regulation in the Global Economy: A (P)Review,” Business and Politics 12 (2010): 4. 50.

Postscript: When the OU confronted the company, the manager explained that the account for the Oreo cookies-and-cream ice cream had been cancelled after the company had purchased $25,000 worth of Oreos with a relatively short expiration date. After attempting to find a new client for them, the company decided to use the Oreos in the kosher production. The OU notified the company that it was terminating the certification. The company owner called OU rabbinic administrator Rabbi Menachem Genack in a panic and explained that he had just acquired the company a few weeks prior for $25 million and had been unaware of the wrongdoing. He explained that without OU certification, the company would be worthless since its private-label business depended on kosher certification. The owner offered to fire the entire staff and start over if the OU would maintain its certification. The OU agreed to continue certification if the owner fired the entire staff and paid for constant supervision to oversee production. The owner eagerly accepted this arrangement. Yaakov Luban, telephone conversation with the author, April 19, 2012.

51.

Avrom Pollak, telephone conversation with the author, May 3, 2012.

52.

For more general discussion of the proactiveness of private regulators, see Timothy Sinclair, “Credit Rating Agencies,” in The Oxford Handbook of Business and Government, ed. David Coen, Wyn Grant, and Graham Wilson (New York: Oxford University Press, 2010), 424; Balleisen, “Effective Coregulation,” 454; Cheit, Setting Safety Standards, 202–204; Lawrence Busch, “Quasi-States? The Unexpected Rise of Private Food Law,” in van der Meulen, Private Food Law, 63.

53.

Yaakov Luban, The Kosher Advantage, www.oukosher.org (accessed December 21, 2011). See also Fishkoff, Kosher Nation, 216; Moshe Elefant, “The State of the (Orthodox) Union” (recorded lecture, Orthodox Union, n.d.), audio download available at www.oukosher.org (accessed December 22, 2011). On problem solving and private regulation, see Balleisen, “Effective Coregulation,” 456; Boddwyn, Advertising SelfRegulation, 19.

54.

Luban, “Kosher Advantage.” On cooperation in private regulation, see Balleisen, “Effective Coregulation,” 458–459.

55.

Benjamin Shandalov, interview by the author, May 25, 2010.

56.

On enforcement flexibility in private regulation, see Balleisen, “Effective Coregulation,” 454–455 (flexible standards of enforcement); Sigman, “Kosher without Law,” 562–564 (recalls); Lisa Bernstein, “Private Commercial Law in the Cotton Industry: Creating Cooperation through

204

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Rules, Norms, and Institutions,” Michigan Law Review 99 (2000): 1724 (reputational sanctions); Gunningham, Grabosky, and Sinclair, Smart Regulation, 377 (escalating response); Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (New York: Oxford University Press, 1992) (calibrated enforcement responses); Barak Richman, “How Community Institutions Create Economic Advantage: Jewish Diamond Merchants in New York,” Law & Social Inquiry 31 (2006): 408 (calibrated sanctions); Cywiak, “Unauthorized OU’s [sic]” (recalls, lockdowns, and trademark-infringement actions); Katzenstein, interview (removal of certification); Starobin and Weisenthal, “Credible information,” 13 (informational networks and consumer alerts); Shandalov, interview (warning and reprimand but not fines); Aryeh Ralbag, interview by the author, May 27, 2010 (removal of certification). While kosher statutes provide only for fines and imprisonment, government regulators could use settlement negotiations and general fraud statutes to invoke a broader array of enforcement mechanisms and sanctions. For example, the Illinois attorney general’s fraud action against Shelat Kosher Foods resulted in a product recall and a consent decree banning the company and its owners from kosher trade. Typically, however, state officials limit themselves to imposing fines proscribed by kosher fraud statutes. 57.

Menachem Lubinsky, telephone conversation with the author, September 9, 2011. See also J. M. Regenstein, M. M. Chaudry, and C. E. Regenstein, “The Kosher and Halal Food Laws,” Comprehensive Reviews in Food Science and Food Safety 2 (2003): 113. For a study on the marketing value of kosher certification, see Michael Kamins and Lawrence Marks, “The Perception of Kosher as a Third-Party Certification Claim in Advertising for Familiar and Unfamiliar Brands,” Journal of the Academy of Marketing Science 19 (1991): 177–185. Fabrizio Cafaggi, “Transnational Governance by Contract: Private Regulation and Contractual Networks in Food Safety,” in Private Standards and Global Governance: Legal and Economic Perspectives, ed. Axel Marx, Miet Maertens, Johan Swinnen, and Jan Wouters (Cheltenham, UK: Elgar, 2012), 200, discusses the power of private sanctions such as contract termination or lack of renewal within supply chains.

58.

On the lower standard-setting and enforcement costs of private regulation, see Boddwyn, Advertising Self-Regulation, 8; Cheit, Setting Safety Standards, 194–195; Richman, “Jewish Diamond Merchants,” 384; Sigman, “Kosher without Law,” 560; Starobin and Weisenthal, “Credible Information,” 28.

59.

See Sigman, “Kosher without Law,” 565–566; Starobin and Weisenthal, “Credible Information,” 28.

60.

The phrase “in the shadow of the law” was coined by Robert Mnookin and Lewis Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce,” Yale Law Journal 88 (1979): 950. On the use of legal sanctions in kosher certification and other forms of private regulation, see

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205

Sigman, “Kosher without Law,” 566–576; “The Illegal OU,” www.ouko sher.org (accessed July 20, 2011); Havinga, “On the Borderline,” 273; Gunningham and Rees, “Industry Self-Regulation,” 400; Gunningham, Grabosky, and Sinclair, Smart Regulation, 251. 61.

Blech, interview; Zecharia Tzvi Goldman, interview by the author, May 10, 2010; Berel Simpser, interview by the author, May 13, 2010; Sigman, “Kosher without Law,” 576–577.

62.

“Kosher Plucots,” Chowhound, www.chowhound.com (accessed May 30, 2010).

63.

See The Blog of Unnecessary Hekhshers; “Does Bleach Need Kosher Supervision?” www.failedmessiah.typepad.com (accessed January 4, 2012).

64.

Moshe Heisler, interview by the author, June 2, 2010.

65.

On torts related to interference with business relations, see Dan Dobbs, The Law of Torts (St. Paul, MN: West, 2000), chap. 32. On Jewish law concepts of unfair competition, see Aaron Levine, Free Enterprise and Jewish Law (New York: Ktav, 1980), chap. 3. Kashrus professionals also regularly condemn certain forms of economic competition—for example, soliciting clients currently under the supervision of other agencies—as unethical. Fishbane, interview; Shandalov, interview; Levy, interview; Ralbag, interview. For elaboration of the Jewish law concept of tortious interference with the livelihood of another (yored l’omanut chavero), see the commentary of the Rama on Shulchan Aruch, Choshen Mishpat 156:5.

66.

Anonymous kosher certification industry expert, interview by the author, 2010.

67.

Fishbane, interview.

68.

Berel Wein, interview by the author, June 9, 2010.

69.

Menachem Lubinsky, interview by the author, May 12, 2010.

70.

Seth Mandel, interview by the author, May 25, 2010.

71.

Levy, interview.

72.

The first quote is from Fishkoff, Kosher Nation, 261; the second quote is from Levy, interview.

73.

Ralbag, interview.

74.

Fishbane, interview.

75.

Pollak, interview.

76.

Anonymous agency head, interview by the author, 2010. This allegation was reaffirmed in two follow-up calls to the original source and telephone conversations with executives at two other agencies, who also wish to remain anonymous.

206

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77.

Eli Lando, interview by the author, February 29, 2012.

78.

On the challenges of self-regulation among regulators, see Susan Shapiro, “The Social Control of Impersonal Trust,” American Journal of Sociology 93 (1987): 645–651.

79.

Untitled draft of AKO competition policy, presented at AKO conference on November 9, 1992, AKO Archives, Chicago Rabbinical Council, Chicago.

80.

“Minimum Standards,” document distributed at AKO conference in New York City, October 28, 2010, on file with the author.

81.

Judgments about the reliability of an agency—its ne’emunus—are heavily influenced by the agency’s readiness to answer questions about its supervision practices and allow informal inspection of the facilities it certifies. For example, the rabbinic administrator of a local va’ad kashrus stated that he did not consider Triangle K a reliable certification because it never acceded to his request to visit one of the production facilities Triangle K certifies. Anonymous rabbinic administrator, telephone call with the author, May 28, 2010. On the importance of transparency in self-regulation, see Balleisen, “Effective Coregulation,” 464–467.

82.

On the importance of reputation in private commerce and the power of reputational sanctions, see Lisa Bernstein, “Private Commercial Law in the Cotton Industry: Creating Cooperation through Rules, Norms, and Institutions,” Michigan Law Review 99 (2000): 1724; Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge, MA: Harvard University Press, 1991); Mitchel Abolafia, Making Markets: Opportunism and Restraint on Wall Street (Cambridge, MA: Harvard University Press, 1996), 174–175; Richman, “Jewish Diamond Merchants,” 402– 409; Balleisen and Eisner, “Promise and Pitfalls,” 133, 137; Vogel, “Taming Globalization,” 473; Wolfgang Streeck and Philippe Schmitter, eds., Private Interest Government: Beyond Market and State (London: Sage, 1985), 11. On reputation as a key constituent of regulatory power, see Daniel Carpenter, Reputation and Power: Organizational Image and Pharmaceutical Regulation at the FDA (Princeton, NJ: Princeton University Press, 2010).

83.

See, for example, discussion of the vinegar scandal of 1986 in chap. 3.

84.

See, for example, discussion of the Oreo cookies-and-cream ice cream fraud earlier in this chapter.

85.

On the importance of reputational information among repeat players in private commercial transactions, see Bernstein, “Private Commercial Law,” 1746, 1770; Lisa Bernstein, “Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry,” Journal of Legal Studies 21 (1992): 116; Richman, “Jewish Diamond Merchants,” 402–409. See also Starobin and Weisenthal, “Credible information,” 17.

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On reputational interdependence, see Joseph Rees, Hostages of Each Other: The Transformation of Nuclear Safety since Three Mile Island (Chicago: University of Chicago Press, 1994), 2, 44–45; Gunningham and Rees, “Industry Self-Regulation,” 390–391; Abolafia, Making Markets, 41. On the value of competition among accrediting agencies for producing reliable information, see Clark Havinghurst, “Forward: The Place of Private Accrediting among the Instruments of Government,” Law and Contemporary Problems 57 (1994): 5, 10. Compare Jean-Cristophe Graz and Andreas Nolke, “Introduction: Beyond the Fragmented Debate on Transnational Private Governance,” in Transnational Private Governance and Its Limits, ed. Jean-Cristophe Graz and Andreas Nolke (New York: Routledge, 2008), 4, arguing that competition makes private regulation less effective. On the generation and dissemination of reputational information in kosher certification, see Starobin and Weisenthal, “Credible information,” 15, 17, 21, 26; Sigman, “Kosher without Law,” 534, 565. On “gossip networks” that disseminate reputational information, see Bernstein, “Private Commercial Law,” 1751; Bernstein, “Opting Out of the Legal System,” 116. Balleisen and Eisner, “Promise and Pitfalls,” 136–137; and Gunningham and Rees, “Industry Self-Regulation,” 383, argue that successful private regulation requires the dissemination of reputational information. 86.

On industry culture, see Rees, Hostages of Each Other, 173–176; Gunningham and Rees, “Industry Self-Regulation,” 371–372, 376–380.

87.

On professionalism as a means of establishing “jurisdiction” over certain types of work, see Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor (Chicago: University of Chicago Press, 1988). Cheit, Setting Safety Standards, 16, discusses the influence of professionalism on private regulation.

88.

On industry culture and socialization, see Gunningham and Rees, “Industry Self-Regulation,” 381, 388; Bernstein, “Private Commercial Law,” 1764, 1787; Thomas Grumbly, “Self-Regulation: Private Vice and Public Virtue Revisited,” in Social Regulation: Strategies for Reform, ed. Eugene Bardach and Robert Kagan (San Francisco: Institute for Contemporary Studies, 1982), 115. On peer pressure in private regulation, see generally Rees, Hostages of Each Other; Gunningham and Rees, “Industry SelfRegulation,” 387; Vogel, “Taming Globalization,” 473.

89.

On the importance of bureaucratic capacity to the success of private regulation, see Balleisen and Eisner, “Promise and Pitfalls,” 134; Cheit, Setting Safety Standards, 14–15, 178; Fuchs, Kalfagianni, and Havinga, “Actors in Private Food Governance,” 6.

90.

On the influence of consumer confidence in safety standards, see Cheit, Setting Safety Standards, 181–184. See also Graz and Nolke, “Introduction: Beyond the Fragmented Debate,” 4.

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91.

Economists call this incentive to conform a “network externality.” On network externalities, see Buthe, “Private Regulation in the Global Economy,” 18; Tim Buthe and Walter Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy (Princeton, NJ: Princeton University Press, 2011), 6. On the influence of networks on firms, see Walter Powell, “Neither Market nor Hierarchy,” Research in Organizational Behavior 12 (1990): 295–336.

92.

On barriers to entry as a means of screening out untrustworthy transactors, see Bernstein, “Private Commercial Law,” 1765.

CONCL U S IO N

1.

Zushe Blech, interview by the author, May 9, 2010.

2.

Blech, interview; Harvey Senter, interview by the author, May 18, 2010; Zecharia Tzvi Goldman, interview by the author, May 10, 2010.

3.

On the social embeddedness of economic activity, see Mark Granovetter, “The Impact of Social Structure on Economic Outcomes,” Journal of Economic Perspectives 19 (2005): 35. See also Barak Richman, “How Community Institutions Create Economic Advantage: Jewish Diamond Merchants,” Law & Social Inquiry 31 (2006): 388, 408–409.

4.

For a discussion of market failure in halal certification, see Frans van Waarden, “Taste, Traditions, Transactions, and Trust: The Public and Private Regulation of Food,” in What’s the Beef? The Contested Governance of European Food Safety, ed. Christopher Ansell and David Vogel (Cambridge, MA: MIT Press, 2006), 54. For a general discussion of conflict of interest in private food regulation, see Lawrence Bush, “QuasiStates? The Unexpected Rise of Private Food Law,” in Private Food Law: Governing Food Chains through Contract Law, Self-Regulation, Private Standards, Audits and Certification Schemes, ed. Bernd van der Meulen (Wageningen, the Netherlands: Wageningen Academic Publishers, 2011), 64.

5.

See, for example, Brian Montopoli, “Poll: Most Not Fully Confident in Food Safety,” CBS News, January 9, 2010, www.cbsnews.com (accessed May 15, 2012).

6.

For discussion of these limitations on recent food safety reforms, see, for example, Helena Bottemiller, “Hamburg: FDA Needs More Resources for Food Safety,” Food Safety News, March 1, 2012, www.foodsafetynews. com (accessed April 10, 2012) (industry resistance to charging fees for food-safety inspection under FSMA); “Budget Constraints Delay Outbreak Investigation Centers,” Food Safety News, March 14, 2012, www .foodsafetynews.com (accessed April 23, 2012) (inadequate funding for FSMA-mandated food-safety programs).

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7.

Many consumers consider kosher certification to be a good proxy for high nutritional value and strict food-safety standards, a view that certification agencies and food companies have embraced. Vice President of Communications and Marketing at the OU, Rabbi Eliyahu Safran, explains that demand for kosher certification is driven by the 51 percent of kosher consumers who buy kosher food for its “general healthfulness” and the roughly one-third who “believe that kosher food-safety standards are better.” Eliyahu Safran, “Food Matters: The Growth of the Kosher,” www.oukosher.org (accessed December 5, 2011). In some cases, kosher certification may, indeed, serve as a useful proxy for food safety and food purity. Regular unannounced kosher inspection of production facilities may increase vigilance about pest infestation and be more likely to detect traces of nonkosher contaminants like insects. Karen Barrow, “More People Choosing Kosher for Health,” New York Times, April 13, 2010, well.blogs.nytimes.com (accessed December 5, 2011). See also “Food Safety Certification,” www.koshercertification.org.uk (accessed January 11, 2012), which promotes kosher certification on the basis of food safety. Federal regulations allow for certain threshold amounts of contamination in foods, known as “maximum defect actions levels,” before they are considered unsafe—for example, fewer than three rodent hairs per 100 grams of chocolate, fewer than two maggots per 500 grams of canned tomatoes, and fewer than thirty insect fragments per 100 grams of peanut butter. See 21 U.S. Code of Federal Regulations 110.110 (2010); Eric Berger, “Top 10 Grossest Food Defects the FDA Deems Safe for Humans,” Cron.com, May 18, 2011, blog.cron.com (accessed December 6, 2011); Jaja Atenra, “FDA Approved Foods with Rodent Hairs and Insect Parts,” Examiner.com, cdn2-b.examiner.com (accessed January 11, 2012). By contrast, kosher certification has zero tolerance for such contaminants, and it is more likely to reduce or eliminate their presence in food. However, while kosher certification may be a useful proxy for food safety and purity, kosher certification of popular products like Tootsie Rolls and Coca-Cola suggests that in many, if not most, cases kosher certification is a poor proxy for nutritional value. Kosher certifiers assert that kosher-certified processed meat is generally of higher quality than nonkosher processed meat, although critics contest this claim. Compare Safran, “Growth of Kosher,” with “Are Hebrew National Kosher Hot Dogs Healthier than the Rest?” Fooducate Blog, blog.fooducate.com (accessed December 5, 2011).

8.

For an introduction to self-regulation, see Edward Balleisen and Marc Eisner, “The Promise and Pitfalls of Co-Regulation: How Governments Can Draw on Private Governance for Public Purpose,” in New Perspectives on Regulation, ed. David Moss and John Cisternino (Cambridge, MA: Tobin Project, 2009), 127–149, and Fabrizio Cafaggi, “New Foundations of Transnational Private Regulation,” Journal of Law and Society 38 (2011): 20.

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9.

Neil Gunningham, Peter Grabosky, and Darren Sinclair, Smart Regulation: Designing Environmental Policy (New York: Oxford University Press, 1998), 200–201.

10.

2011–2012 Kosher Supervision Guide (Brooklyn, NY: Kashrus Magazine, 2010). On the importance of profitability to private regulation, see Tim Buthe, “Global Private Politics: A Research Agenda,” Business and Politics 18 (2010): 6, 8. See also Ross Cheit, Setting Safety Standards: Regulation in the Public and Private Sectors (Berkeley: University of California Press, 1990), 180, discussing the market for safety standards, and David Vogel, “Taming Globalization? Civil Regulation and Corporate Capitalism,” in The Oxford Handbook of Business and Government, ed. David Coen, Wyn Grant, and Graham Wilson (New York: Oxford University Press, 2010), 484, discussing markets for virtue.

11.

On the importance of brand identity among private regulators, see Frederick Mayer and Gary Gereffi, “Regulation and Economic Globalization: Prospects and Limits of Private Governance,” Business and Politics 12 (2010): 9–11; van Waarden, “Taste, Traditions, Transactions, and Trust,” 56. On competition among private third-party certifiers, see Magnus Bostrom and Mikael Klintman, Eco-Standards, Product Labelling and Green Consumerism (2008; paperback ed., Basingstoke, Hampshire, UK: Palgrave Macmillan, 2011), 190. Brand competition requires agencies to be transparent with regard to standards and performance. See Balleisen and Eisner, “Promise and Pitfalls,” 135. On brand competition and foodsafety standards in Europe, see Thomas Bernauer and Ladina Caduff, “Food Safety and the Structure of the European Food Industry,” in Ansell and Vogel, What’s the Beef? 81.

12.

On supply-chain influence and interdependence, see Benjamin Cashore, Graeme Auld, and Deanna Newsom, Governing through Markets: Forest Certification and the Emergence of Non-State Authority (New Haven, CT: Yale University Press, 2004), 23; Gunningham, Grabosky, and Sinclair, Smart Regulation, 223–224; van Waarden, “Taste, Traditions, Transactions, and Trust,” 56. Tim Buthe and Walter Mattli, “International Standards and Standard-Setting Bodies,” in The Oxford Handbook of Business and Government, ed. David Coen, Wyn Grant, and Graham Wilson (New York: Oxford University Press, 2010), 442, discuss interdependence in terms of network externalities. For additional discussions of interdependence and mutual restraint in commercial relations, see Mitchel Abolafia, Making Markets: Opportunism and Restraint on Wall Street (Cambridge, MA: Harvard University Press, 1996), 173; Joseph Rees, Hostages of Each Other: The Transformation of Nuclear Safety since Three Mile Island (Chicago: University of Chicago Press, 1994), 2, 44–45.

13.

While the concentration of market power has facilitated the coordination and enforcement of industry standards, it has not eliminated agencies

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that refuse to conform. Agencies that reject Big Five standards can still provide retail certification to less discriminating kosher consumers or to local communities in which they have a good reputation. Some scholars worry that competition between private regulators creates multiple standards and that lack of uniformity is inefficient for regulated companies and confusing for consumers. In kosher certification, however, most industrial production is certified by Big Five agencies that adhere to industry standards, and agencies with lower standards are easily identifiable to religiously observant consumers with high standards who more closely monitor kosher certification media or are part of religious social networks. On concentration in private regulation, see Tetty Havinga, “Private Regulation of Food Safety by Supermarkets,” Law & Policy 28 (2006): 528. For a discussion of pressure on kosher certification agencies to adhere to industry standards and nonconformity, see chap. 3. On the tension between regulatory competition and uniformity of standards, see Spencer Henson and John Humphrey, “Codex Alimentarius and Private Standards,” in van der Meulen, Private Food Law, 165–168; and Cafaggi, “Transnational Governance,” 201. 14.

For an example of consumer vigilance, see the Oreo cookie ice-cream story in chap. 4.

15.

On the role of kosher consumers, see Shayna Sigman, “Kosher without Law: The Role of Nonlegal Sanctions in Overcoming Fraud within the Kosher Food Industry,” Florida State University Law Review 31 (2004): 584; Shana Starobin and Erika Weinthal, “The Search for Credible Information in Social and Environmental Global Governance: The Kosher Label,” Business and Politics 12 (2010): 21–22. On active consumers and other civil-society groups in private regulation more generally, see Buthe, “Global Private Politics,” 12; Mayer and Gereffi, “Private Governance,” 11–13; Unni Kjaernes, Arne Dulsrud, and Christian Poppe, “Contestation over Food Safety: The Significance of Consumer Trust,” in Ansell and Vogel, What’s the Beef? 62.

16.

Neil Gunningham and Joseph Rees, “Industry Self-Regulation: An Institutional Perspective,” Law and Policy 19 (1997): 376.

17.

Ibid., 376–380.

18.

On complex social networks, see Michael Ferrary and Mark Granovetter, “The Role of Venture Capital Firms in Silicon Valley’s Complex Innovation Network,” Economy and Society 38 (2009): 332.

19.

On network density, see Granovetter, “Impact of Social Structure,” 34.

20.

Granovetter, “Impact of Social Structure,” 34–35.

21.

Doris Fuchs, Agni Kalfagianni, and Tetty Havinga, “Actors in Private Food Governance: The Legitimacy of Retail Standards and Multistakeholder Initiatives with Civil Society Participation,” Agriculture and Human

212

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Values (August 13, 2009), springerlink.com (accessed June 12, 2012), 1, 10–12. For additional discussions of the legitimacy of private regulation, see Bostrom and Klintman, Eco-Standards, 76–82; Eva Sørensen and Jacob Torfing, eds., Theories of Democratic Network Governance (Basingstoke, Hampshire, UK: Palgrave Macmillan, 2007), chaps. 8, 14, 15, 16; Busch, “Quasi-states,” 64–66; Lisa Sharma, Stephen Teret, and Kelly Brownell, “The Food Industry and Self-Regulation: Standards to Promote Success and to Avoid Public Health Failures,” American Journal of Public Health 100 (2010): 240. 22.

On comparative institutional analysis, see Neil Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (Chicago: University of Chicago Press, 1994), 3; Peter Schuck, The Limits of Law: Essays on Democratic Governance (Boulder, CO: Westview, 2000), 424.

23.

Wendy Wagner, Katherine Barnes, and Lisa Peters, “Rulemaking in the Shade: An Empirical Study of EPA’s Air Toxic Regulations,” Administrative Law Review 63 (2011): 119.

24.

“Kashrus FAQ,” www.oukosher.org (accessed July 11, 2011); “Styrofoam Cups and Aluminum Foil,” www.oukosher.org (accessed July 11, 2011).

25.

See, for example, Yaakov Luban, ed., OU Manual for the Oil Industry (New York: Orthodox Union Kashrus Division, 2010).

26.

One might question whether the kashrus standards of religiously observant Jews are really independent of the kashrus standards of certification agencies. To be sure, religiously observant Jews are influenced by the opinions of the prominent rabbis who manage the leading kosher certification agencies, many of whom also hold positions as spiritual leaders and teachers in local communities. Nevertheless, the kashrus standards of religious Jews are shaped by a variety of influences other than kosher certification agencies. The most powerful is family traditions, passed down from generation to generation. For many, a mother’s or grandmother’s standard of kashrus is more authoritative than that of a mere rabbi. More general trends in religious politics also influence community kashrus standards. For example, during the mid-twentieth century, when Orthodox Jews were eager to join the American middle class, many leading rabbinic scholars favored more permissive rulings on matters of religious restriction, including kashrus. With the rise of ethnic pride in America beginning in the 1960s, young Orthodox Jews were eager to express their cultural distinctiveness, and rabbinic scholars issued increasingly restrictive rulings, again, including on matters of kashrus.

27.

Baruch Cywiak, “Unauthorized OU’s [sic]” (recorded lecture, Orthodox Union, n.d.), audio download available at www.oukosher.org (accessed January 3, 2012).

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28.

For an extended analysis of the legitimacy of private regulation, see Colin Scott, Fabrizio Cafaggi, and Linda Senden, “The Conceptual and Constitutional Challenge of Transnational Private Regulation,” Journal of Law and Society 38 (2011): 1.

29.

Rees, Hostages of Each Other.

30.

“144 Vegetarian Quotes” and “Vegetarianism,” Ethical Vegetarian, www .ethicalvegetarian.com (accessed April 18, 2012). See also, for example, Peter Singer, Animal Liberation (1975; repr., New York: HarperCollins, 2002), chap. 4; Jonathan Safran Foer, Eating Animals (New York: Little, Brown, 2009).

31.

“Uncompromising Stands on Animal Rights,” www.peta.org (accessed January 10, 2012); “PETA: The Official PETA CafePress Store,” www. cafepress.com (accessed April 23, 2012); “How Hard Is It to Be Vegan?” Fooducate, blog.fooducate.com, April 19, 2012 (accessed April 23, 2012).

32.

“Salt: The Forgotten Killer,” www.cspinet.org (accessed April 19, 2012).

33.

Benjamin Gutman, “Ethical Eating: Applying the Kosher Food Regulatory Regime to Organic Food,” Yale Law Journal 180 (1999): 2351, 2373, 2381.

34.

Senter, interview.

35.

“CDC Estimates of Foodborne Illness in the United States,” www.cdc .gov (accessed January 10, 2012). See also Marion Nestle, Safe Food: The Politics of Food Safety (2003, rev. ed., Berkeley: University of California Press, 2010), 39, 43–46, and Douglas Powell, Casey Jacob, and Benjamin Chapman, “Enhancing Food Safety Culture to Reduce Rates of Foodborne Illness,” Food Control 22 (2011): 818.

36.

Jon Blackwell, “1906: Rumble over ‘The Jungle,’ ” www.capitalcentury .com (accessed January 10, 2012).

37.

Statement of Dr. Elisabeth Hagen, Under Secretary for Food Safety, United States Department of Agriculture before the House Subcommittee on Agriculture, Rural Development, Food and Drug Administration, March 15, 2011, www.fsis.usda.gov (accessed January 11, 2012). For historical background on federal meat inspection, see Ensuring Safe Food from Production to Consumption (Washington, DC: National Academy Press, 1998): 3, 21–23.

38.

This example is taken from Nestle, Safe Food, 68.

39.

On FDA food-safety inspection generally, see Department of Health and Human Services, Office of Inspector General, “FDA Inspections of Domestic Food Facilities,” April 2010, oig.hhs.gov (accessed January 10, 2012), 10. Other federal agencies involved in different aspects of foodsafety regulation include the National Marine Fisheries Service in the

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Department of Commerce, the Environmental Protection Agency, the Centers for Disease Control and Prevention, and the National Institutes of Health. Ensuring Safe Food, 23. On state regulation of food safety, see Ensuring Safe Food, 28–29; Department of Health and Human Services, Office of Inspector General, “FDA Oversight of State Food Firm Inspection: A Call for Greater Accountability,” June 2000, www.fda.gov (accessed January 10, 2012), 11–12; Department of Health and Human Services, Office of Inspector General, “Vulnerabilities in FDA’s Oversight of State Food Facility Inspections,” December 2011, oig.hhs.gov (accessed January 10, 2012), 1–3. 40.

“FDA Inspections of Domestic Food Facilities,” 10–15. See also “Vulnerabilities in FDA’s Oversight,” ii–iii.

41.

FDA Food Safety Modernization Act, Public Law 111–353, January 4, 2011; Renee Johnson, “The FDA Food Safety Modernization Act (P.L. 11–353),” Congressional Research Service report for Congress, February 18, 2011, www.crs.gov (accessed January 10, 2012); “FDA Food Safety Modernization Act Section-by-Section Analysis,” memo by Hogan Lovells, US LLP, www.gmaonline.org (accessed January 10, 2012). Quote from “Food Safety Plans & Inspections Will Reduce Recalls & Outbreaks, Says CSPI,” January 3, 2011, www.cspinet.org (accessed November 15, 2011).

42.

Helena Bottemiller, “Food Safety Bill Advocates Expect Funding Fight,” Food Safety News, January 4, 2011, www.foodsafetynews.com (accessed November 15, 2011). See also Margaret Hamburg, “What Does the New Food Safety Law Mean for You?” January 5, 2011, www.foodsafety.gov (accessed January 11, 2012); Mateusz Perkowski, “Official: Budget Limits Food Safety Enforcement,” Capital Press, January 19, 2012, www .capitalpress.com (accessed January 26, 2012); Ronald Doering, “The Food Safety Modernization Act: Lessons for Canada,” September 2011, www.gowlings.com (accessed January 10, 2012).

43.

See Strategic Priorities 2011–2014: Responding to Public Health Challenges of the 21st Century (Washington, DC: Department of Health and Human Services, United States Food and Drug Administration, 2011), www.fda.gov (accessed January 11, 12), section 3.11 (listing food safety first under “Strategic Goals and Long-Term Objectives”).

44.

See, for example, Bottemiller, “Hamburg: FDA Needs More Resources for Food Safety” (industry resistance to charging fees for food-safety inspection under the FSMA); “Budget Constraints Delay Outbreak Investigation Centers” (inadequate funding for FSMA-mandated food-safety programs).

45.

Douglas Powell, “Killer Cantaloupe Facility Got Big Thumbs Up from Auditor Days before Outbreak,” barfblog, October 20, 2011, barfblog. foodsafety.ksu.edu (accessed November 2, 2011); Douglas Powell, “Ad-

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ditional Voices on Food Safety Audits,” barfblog, October 30, 2011, barfblog.foodsafety.ksu.edu (accessed November 2, 2011); “Recall Expands to More than Half a Billion Eggs,” Associated Press, August 20, 2010, www.msnbc.msn.com (accessed January 11, 2012); Douglas Powell, “Third-Party Food-Safety Audits Fall under Intense Scrutiny,” barfblog, September 30, 2010, barfblog.foodsafety.ksu.edu (accessed November 2, 2011); Elizabeth Weisse, “Food Safety Auditors Are Often Paid by the Firms They Audit,” USA Today, October 4, 2010, www.usatoday.com (accessed May 8, 2012). 46.

Irwin Pronk, “Third-Party Audits: Missing the Forest for the Trees,” barfblog, November 5, 2010, barfblog.foodsafety.ksu.edu (accessed November 2, 2011); Powell, “Killer Cantaloupe.”

47.

Powell, “Killer Cantaloupe.”

48.

Pronk, “Third-Party Audits.”

49.

Douglas Powell, “Food Safety Auditors Can Suck,” barfblog, September 23, 2010, barfblog.foodsafety.ksu.edu (accessed November 2, 2011); Powell, “Killer Cantaloupes”; Powell, “Third-Party Food-Safety Audits.” See also Jutta Roosen, “Marketing of Safe Food through Labeling,” Journal of Food Distribution Research 34 (2003): 77.

50.

Helena Bottemiller, “Democrats Urge FDA to Reform Third-Party Auditing System,” Food Safety News, January 11, 2012 (accessed April 24, 2012); Guidance for Industry: Voluntary Third-Party Certification Programs for Foods and Feeds (Washington, DC: Department of Health and Human Services, Food and Drug Administration, January 2009); Food Safety Modernization Act, §307; Daniel Dwyer, “Third-Party Accreditation under the FDA Food Safety Modernization Act,” KKBlog, www.kk blaw.com (accessed April 23, 2012).

51.

Bernauer and Caduff, “Food Safety,” 88–92.

52.

Eric Schlosser, Fast Food Nation: The Dark Side of the All-American Meal (New York: HarperCollins, 2001); Michael Pollan, The Omnivore’s Dilemma: A Natural History of Four Meals (New York: Penguin, 2006); Robert Kenner, Elise Pearlstein, and Kim Roberts, Food Inc., directed by Robert Kenne, New York, Magnolia Pictures, 2009.

53.

Helena Bottemiller, “Survey: Consumers ‘Highly Aware’ of Food Safety,” Food Safety News, February 18, 2010, www.foodsafetynews.com (accessed November 21, 2011). The study was funded by Det Norske Veritas (DNV), a risk-management firm that sells food-safety consulting services to industry. Tracey Roberts, “The Rise of Rule Four Institutions: Voluntary Standards, Certification, and Labeling Systems,” forthcoming Ecology Law Quarterly, offers an economic analysis of consumer demand for private certification and labeling.

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54.

Douglas Powell, “Food Safety Never Enough,” barfblog, March 1, 2010, barfblog.foodsafety.ksu.edu (accessed November 2, 2011); Powell, Jacob, and Chapman, “Enhancing Food Safety Culture,” 821; Douglas Powell, “Marketing Microbial Food Safety at Retail Is the Only Way to Provide Consumer Choice and Hold Producers Accountable,” barfblog, August 25, 2010, barfblog.foodsafety.ksu.edu (accessed November 3, 2011). Powell cites the example of a U.S.-based supermarket chain, Publix, that “voluntarily provides information to consumers on the shelf-life of deli meats and cheeses sliced at its stores through text printed on product packaging.” In Douglas Powell, “Don’t Eat Poop—and Other Lessons from Spinach,” April 7, 2007, foodsafety.ksu.edu (accessed November 3, 2011), Powell asserts that “The first company that can assure consumers they aren’t eating poop on spinach, lettuce, tomatoes and any other fresh produce will make millions and capture markets.”

55.

“Grocery Manufacturers Association Applauds President Obama for Signing Food Safety Legislation,” January 5, 2011, www.gmaonline.org (accessed November 17, 2011); “Food Safety and Legislation,” www .gmaonline.org (accessed January 11, 2012) (advertising training programs).

56.

“What Is GFSI?” www.mygfsi.com (accessed November 17, 2011); “WalMart Uses New Food Safety Initiative as a Marketing Tool,” Jim Prevor’s Perishable Pundit, February 8, 2008, www.perishable pundit.com (accessed November 13, 2011).

57.

Irwin Pronk, “Is Food Safety Auditing about Safety or Money? GFSILight?” barfblog, May 4, 2011, barfblog.foodsafety.ksu.edu (accessed November 2, 2011).

58.

Michael Pollan, “The Food Movement, Rising,” New York Review of Books, June 10, 2010, nybooks.com (accessed November 21, 2011).

59.

See, for example, barfblog.com, www.barfblog.com (accessed May 8, 2012); Food Safety News, www.foodsafetynews.com (accessed May 8, 2012); Eat, Drink, Politics, www.eatdrinkpolitics.com (accessed May 8, 2012).

60.

“GFSI Board,” www.mygfsi.com (accessed January 11, 2012).

61.

Bernauer and Caduff, “Food Safety,” 89–90. Henson and Humphrey, “Codex Alimentarius,” 161, discuss the concern that market competition on food safety will erode consumer confidence.

62.

Powell, “Marketing Microbial Food Safety.” See also Powell, Jacob, and Chapman, “Enhancing Food Safety Culture.”

63.

Pronk, “Food Safety Auditing.”

64.

Powell, “Marketing Microbial Food Safety.”

65.

Powell, Jacob, and Chapman, “Enhancing Food Safety Culture,” 821.

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66.

Timothy Lytton, “Signs of Change or Clash of Symbols? FDA Regulation of Nutrient Profile Labeling,” Health Matrix 20 (2010): 107; Institute of Medicine of the National Academies, Front-of-Package Nutrition Rating Systems and Symbols: Promoting Healthier Choices, ed. Ellen Wartella et al. (Washington, DC: National Academies Press, 2012), chaps. 2–3.

67.

Lytton, “Signs of Change,” 109–113.

68.

Ibid., 119–134.

69.

Institute of Medicine, Front-of-Package Nutrition Rating Systems and Symbols, chap. 7.

70.

Lytton, “Signs of Change,” 135; V. Azais-Braesco, C. Goffi, and E. Labouze, “Nutrient Profiling: Comparison and Critical Analysis of Existing Systems,” Public Health Nutrition 9 (2006): 613–622.

71.

See, for example, Marion Nestle, Food Politics: How the Food Industry Influences Nutrition and Health (Berkeley: University of California Press, 2002); Michelle Simon, Appetite for Profit: How the Food Industry Undermines Our Health and How to Fight Back (New York: Nation Books, 2006).

72.

“Facts Up Front FAQ,” factsupfront.com (accessed February 15, 2012).

73.

“Heart-Check” mark, www.heart.org (accessed January 11, 2012).

74.

“Our Team,” www.guidingstars.com (accessed January 11, 2012); “Our Partners,” www.guidingstars.com (accessed January 11, 2012).

75.

See, for example, “Where to Find NuVal,” www.nuval.com (accessed December 6, 2011).

76.

See, for example, the Fooducate iPhone App, www.fooducate.com (accessed January 11, 2012).

77.

“All Ecolabels on Food,” Ecolabel Index, www.ecolabelindex.com (accessed November 28, 2011).

78.

“Introduction to Ecolabelling,” Global Ecolabelling Network (GEN) Information Paper, July 2004, www.globalecolabelling.net (accessed January 11, 2012).

79.

“About GEN,” www.globalecolabelling.net (accessed January 11, 2012); “About Us,” www.isealalliance.org (accessed January 11, 2012). On the standardization of ecolabeling, see Theo Appelhof and Ronald van den Heuvel, “Inventory of Private Food Law,” in van der Meulen, Private Food Law, 134. Gutman, “Ethical Eating,” argues that private kosher certification offers a more attractive model for organic certification than government standard setting.

80.

“Home,” ecolabelindex.com (accessed January 11, 2012).

218

N OT E S TO PAG E S 1 5 1 – 1 5 6

81.

See Bostrom and Klintman, Eco-Standards, 2, discussing political consumerism.

82.

See, for example, GEN, the Global Ecolabelling Network 2009 Annual Report, www.globalecolabelling.net (accessed January 11, 2012); Annual Report: ISEAL Alliance in 2010, isealalliance.org (accessed January 11, 2012).

83.

Global Ecolabelling Network 2009 Annual Report; Annual Report: ISEAL Alliance in 2010.

84.

Pollan, “Food Movement Rising”; Bostrom and Klintman, Eco-Standards, 21–24.

85.

See, for example, Annual Report: ISEAL Alliance in 2010, 3–6, 22–23.

86.

Babylonian Talmud, Tractate Baba Batra, 74a–75b; Emil Hirsch et al., “Leviathan and Behemoth,” Jewish Encyclopedia.com, www.jewishency clopedia.com (accessed December 8, 2011).

87.

Adapted from Aaron Eby, “He Is Messiah, But . . .” Biblical Kosher, www .biblicalkosher.alittlehebrew.com (accessed December 8, 2011).

APPEND IX A

1.

On the industrialization of kosher meat production and corruption among shochtim and rabbis, see Harold Gastwirt, Fraud, Corruption, and Holiness: The Controversy over the Supervision of Jewish Dietary Practice in New York City, 1881–1940 (Port Washington, NY: Kennikat, 1974), chaps. 2–4; Jeremiah Berman, Shehitah: A Study in the Cultural and Social Life of the Jewish People (New York: Bloch, 1941), chaps. 3, 9, 10. On centralization in the meat industry more generally, see Willard Williams and Thomas Stout, Economics of the Livestock-Meat Industry (New York: Collier-MacMillan, 1964); Mary Yeager, Competition and Regulation: The Development of Oligopoly in the Meat Packing Industry (Greenwich, CT: JAI, 1981); Michael Broadway, “From City to Countryside: Recent Changes in the Structure and Location of the Meat- and Fish-Processing Industries,” in Any Way You Cut It: Meat Processing and Small-Town America, ed. Donald Stull, Michael Broadway, and David Griffith (Lawrence: University Press of Kansas, 1995). My account of the history of kosher meat production draws also on Seth Mandel, “The State of OU Meat and Chicken” (recorded lecture, OU, August 23, 2006), audio download available at www.oukosher.org (accessed December 21, 2011); Seth Mandel, interview by the author, May 24, 2010.

2.

James MacDonald and Michael Ollinger, “U.S. Meat Slaughter Consolidating Rapidly,” Food Review (May–August 1997): 22–27.

3.

Mandel, “State of OU Meat”; Mandel, interview; Menachem Genack, interview by the author, May 24, 2010.

N OT E S TO PAG E S 1 5 6 – 1 6 1

219

4.

Mandel, interview.

5.

Berel Wein, interview by the author, June 9, 2010. See also Louis Bernstein, Challenge and Mission: The Emergence of the English-Speaking Orthodox Rabbinate (New York: Shengold, 1982), 93.

6.

Mandel, “State of OU Meat”; Mandel, interview.

7.

Mandel, interview; Mandel, “State of OU Meat”; Zushe Blech, Kosher Food Production, 2nd ed. (Ames, IA: Wiley-Blackwell, 2008), 368.

8.

Mandel, interview.

9.

Ibid.

10.

David Kraemer, Jewish Eating and Identity through the Ages (New York: Routledge, 2007), 148–152, 168.

11.

Sue Fishkoff, Kosher Nation: Why More and More of America’s Food Answers to a Higher Authority (New York: Schocken, 2010), 102.

12.

Mandel, interview.

13.

Mandel, “State of OU Meat”; Seth Mandel, “The Kosher Meat Chain” (recorded lecture, OU, August 5, 2007), audio download available at www.oukosher.org (accessed December 21, 2011); Mandel, interview.

14.

Anonymous kashrus expert, interview by the author, 2010. For a brief introduction to sh’chutei chutz, see Blech, Kosher Food Production, 137n3.

15.

Sholem Fishbane, interview by the author, May 17, 2010.

16.

Don Yoel Levy, interview by the author, June 11, 2010.

17.

Anonymous kashrus expert, interview, 2010.

APPENDIX B

1.

This figure is cited by Sue Fishkoff, Kosher Nation: Why More and More of America’s Food Answers to a Higher Authority (New York: Schocken, 2010), 7, and was confirmed by Menachem Lubinsky, email to the author, September 8, 2011. It appears to be based on a rough estimate by kosher marketing analyst Menachem Lubinsky and widely accepted among those in the kosher certification industry. This figure is consistent with the supermarket survey data discussed in Chapter 3 and in Appendix E.

2.

Lawrence Sullivan and Warren Grimes, The Law of Antitrust: An Integrated Handbook, 2nd ed. (St. Paul, MN: Thompson/West, 2006), 185.

3.

Ibid., 191–193.

220

N OT E S TO PAG E S 1 6 1 – 1 70

4.

Ibid., 295–298.

5.

Ibid., 230–231, 306–312.

6.

Aryeh Ralbag, interview by the author, May 27, 2010; Abraham Halbfinger, interview by the author, May 26, 2010.

7.

See, for example, Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393, U.S. 440 (1969). For the intersection of the First Amendment and antitrust law, see Barak Richman, “Saving the First Amendment from Itself: Relief from the Sherman Act against the Rabbinic Cartels,” Pepperdine Law Review 40 (forthcoming).

8.

Sullivan and Grimes, Law of Antitrust, 230–231, 306–312.

9.

Ibid., 251–258.

10.

Ibid., 230–231, 306–312. For a discussion of these issues in the European context, see also Imelda Maher, “Competition Law and Transnational Private Regulatory Regimes: Marking the Cartel Boundary,” Journal of Law and Society 38 (2011): 119. APPENDIX C

1.

Berel Simpser, interview by the author, May 13, 2010; Zecharia Tzvi Goldman, interview by the author, May 10, 2010.

2.

Avrom Pollak, interview by the author, June 2, 2010.

3.

These accounts of eco-kosher and the Agriprocessors scandal rely on Sue Fishkoff, Kosher Nation: Why More and More of America’s Food Answers to a Higher Authority (New York: Schocken, 2010), chaps. 12 and 14. The Schonfeld quote is from Fishkoff, Kosher Nation, 293. See also Mary Zamore, ed., The Sacred Table: A Jewish Food Ethic (New York: CCAR Press, 2011).

4.

Fishkoff, Kosher Nation, 284–285.

5.

Blech, interview.

6.

Goldman, interview.

7.

Blech, interview. APPENDIX E

1.

“Nutrition Database,” www.gladson.com (accessed June 5, 2012).

2.

“Supermarket Facts,” www.fmi.org (accessed June 5, 2012).

Acknowledgments

For more than a decade, Albany Law School has provided me with an extraordinarily supportive academic community. I am grateful for the encouragement of my faculty colleagues. Dean Tom Guernsey, Dean Connie Mayer, and Associate Dean James Gathii generously funded my research and granted me leave to write this book. Dean Penny Andrews offered encouragement and provided funding during the final editing stages. Law school librarians Bob Emery, Mary Wood, and Colleen Ostiguy went to extraordinary lengths in responding to research requests and tracking down obscure historical records and food-industry data. Theresa Colbert, David Freedman, John Forbush, Eric Garafano, Kristin Keehan, Michelle Mallette, Meaghan Murphy, and Christina Tripoli provided essential research assistance. Benjamin Pomerance deserves special mention for his keen investigative skills and for several very helpful memoranda analyzing the kosher industry and kosher laws, as well as for his thoughtful comments on the completed manuscript. Daniel Blech, Yitzi Funfeder, Tova Kaufman, Mark Naughton, and Mordechai Zaetz conducted supermarket surveys that inform my analysis of the relative sizes of the Big Five certification agencies. I wrote much of this book while on leave for seven months in Yeruham, Israel. Tammy Biton spared no effort in welcoming my family and making us feel at home. The Yerucham town library staff—Simcha Yechezkiel, Rinat Iluz, and Karen Tsintsolker—made me an honorary member of their team and provided a collegial environment in which to work. David Biton offered a sociological perspective on Jewish law in weekly meetings over mint tea and during walks in the desert surrounding Yerucham. Many individuals read part or all of the manuscript and offered helpful advice: Mitch Abolafia, Elizabeth Anisfeld, Moshe Anisfeld, Tom Baker, Ed Balleisen, Peter Berkowitz, Mordecai Bienstock, Ray Brecia, Scott Burris, Dom Colafati, Bob Ellickson, Anne Erling, Tzvi Gastwirt, Naftali Hanau, Tetty Havinga, Peter Hutt, Jenna Weissman Joselit, Bob Kagan, David Kraemer, Jerry Mashaw, Michael McCann, Marion Nestle, Mike Pappas, Doug Powell, Joe Regenstein, Bill Reynolds, Barak Richman, Don Seeman, Amy Sinden, Dave Singer, Eva Sørensen, Robin Taylor, Jacob Torfing, David Vogel, Wendy Wagner, and Spencer Waller. Tom McGarity provided especially detailed and helpful suggestions on the entire manuscript, which led to many improvements. I benefited from workshop presentations at Albany Law School, Brooklyn Law School, the Center for the Study of Law and Society at the University of California–Berkeley, the School of Law at Loyola University Chicago, Northeastern University School of Law, the Rudd Center for Food Policy and Obesity at Yale University, Suffolk University Law

222

ACKNOWLEDGMENTS

School, Temple University James E. Beasley School of Law, and the University of Maryland Francis King Carey School of Law. Numerous individuals shared their inside knowledge of the kosher certification industry. They granted me interviews, responded to follow-up questions, shared data, and commented on the manuscript: Rabbi Julius Berman, Rabbi Moshe Bomzer, Rabbi Zevulun Charlop, Rabbi Yakov Dombroff, Rabbi Moshe Elefant, Rabbi Sholem Fishbane, Rabbi Menachem Genack, Rabbi Zecharia Tzvi Goldman, Rabbi Abraham Halbfinger, z"l, Rabbi Dovid Heber, Rabbi Moshe Heisler, Rabbi Howard Katzenstein, Yehuda Kronengold, Rabbi Eli Lando, Rabbi Don Yoel Levy, Rabbi Yaakov Luban, Menachem Lubinsky, Rabbi Seth Mandel, Rabbi Levi Marmulszteyn, Jan Mishkin, Esther Moeller, Dr. Avrom Pollak, Rabbi Aryeh Ralbag, Joe Rothstein, Rabbi Ari Senter, Rebbetzin Chana Senter, Rabbi Zecharia (Harvey) Senter, Rabbi Benjamin Shandalov, Rabbi Berel Simpser, Rabbi Shmiel Teitelbaum, Shalom Teller, Rabbi Berel Wein, Rabbi Luzer Weiss, Rabbi Zvi Zuravin, and Rabbi Moshe Zywica. Early in my research, Sue Fishkoff graciously sent me an advance copy of her excellent book Kosher Nation: Why More and More of America’s Food Answers to a Higher Authority. I owe special thanks to Rabbi Zushe Blech, who, throughout the course of my research and writing, was never too busy to take a few minutes on the phone to respond to my many questions. He generously shared his extensive knowledge of Jewish law and industrial food production, and he related many engaging stories about the world of kosher certification. Austin Sarat helped me formulate the initial proposal for this book and offered helpful comments on the completed manuscript. He has, for more than a decade, coached me in the art of writing, and I am very grateful for his advice. Michael Aronson, my editor at Harvard, provided constant support and wise counsel throughout the course of my research and writing and during the production process. Kathleen Drummy and Melody Negron organized production, and Carol Hoke carefully copyedited the manuscript. Bob Rabin, Peter Schuck, and Steve Sugarman offered useful advice, posed challenging questions, and provided steady encouragement. Their scholarship, guidance, and friendship have profoundly affected the path of my academic career. From them I have learned to take an institutional perspective. They have taught me that, in thinking about public policy, it is essential to examine closely the mechanics of how regulatory institutions operate and to take into account their comparative strengths and weaknesses. They have also shown me that academia is both a very serious business and a heck of a lot of fun. I am deeply thankful for the guidance and friendship of my father, Bernard Lytton. His example of intellectual curiosity, integrity, and open-mindedness are an ongoing inspiration. The memory of my mother, Norma Lytton, continues to burn bright. My heavy reliance on interviews and personal stories throughout this book owes a great deal to her belief that one can learn a lot about the world by asking people about themselves and listening carefully to what they have to say. My sister, Jenny, and her husband, Eric, are a constant source of enthusiastic support. The newest member of our family, Dawn Wood, is always ready with a word of encouragement, as are my aunt and uncle, Margot and Ernest Kohorn.

ACKNOWLEDGMENTS

223

My children, Medad, Margalit, and Asher, are a colossal distraction from my work and a source of more joy than I ever imagined possible. My wife, Rachel Anisfeld, has sustained me throughout this project. As I thought about the themes of food production and religious commitment in industrial kashrus, she fed my body with her healthy recipes and nourished my soul with her inspiring Torah. My love and admiration for her continue to grow with each passing year of our happy partnership.

Index

Abadi, Aharon (Rabbi), 86–87 Adulteration, 106–112 Agriprocessors meatpacking plant scandal, 164–165 Agudas Harabonim, 52, 91 Aluminum foil, 104–105, 121, 137 American Institute of Baking, 1–2 American Standard of Kashrus, 3, 6, 72–73, 85, 92, 97 102, 153. See also Association of Communal Kashrus Organizations (ACKO); Association of Kashrus Organizations (AKO); Industry standards Antitrust law, 161–163 Association of Communal Kashrus Organizations (ACKO), 57, 72, 80, 85, 92–95 Association of Kashrus Organizations (AKO), 85, 91–97, 100, 109, 125–126, 133–134, 137, 162–163 Baff, Bernard, 10, 24, 176n2 Big Five certification agencies: increase in industrial clients for (1980– 2012), 60–61; rise of brand competition among (1969–1980), 53–57; governing and control of industry standards by, 72–73, 97–102, 122, 133; relative size (2012), 74–80; increased stringency in standards since early 1980s and, 85–89; interagency dynamic and politics in, 89–91, 100; governance of kosher certification, 97–98; constraints and self-constraints on power of, 98–100; acceptance of non-conforming agencies by, 100–102; adulteration and mislabeling and, 107–112; reputational sanctions and, 126; antitrust concerns and, 161–163; self-reported data from on number of companies, plants, and products, 166–167. See also Association of Communal Kashrus Organizations (ACKO); Association of Kashrus

Organizations (AKO); Fraud and corruption; Industry standards; Kosher certification agencies; Kosher certification as private regulatory model; Kosher consumers; Trust; individual agencies Bleach, 122, 205n63 Blech, Zushe (Rabbi), 62, 70, 81, 97, 99, 108–110, 129, 165 Bottled water, 104–105, 121, 137 Brand value, 6; rise of among Big Five agencies (1968–1980), 48, 53–57; reliability and, 58, 132–133; as key to success, 62; brand competition among kosher agencies, 73, 119; accountability to consumers and, 109–111, 116, 126–127, 130, 132–133, 137–138; and food safety, 145–148; and food labeling, 149–151 Butchers, 10, 12–13, 16–17, 19–32, 92, 95, 177n9, 179n29 Butter, 59, 118 Catering, 42, 80, 92, 95. See also Food service Cheese, 40–42 Chicago Rabbinical Council. See CRC (kosher certification agency) Chief Rabbi of New York. See Joseph, Jacob (Rabbi) Civil law. See Kosher fraud laws Coca-Cola, 44, 87 Communal organizations: communal regulation of kosher meat production, 14–21; as founders of kosher certification agencies, 55–57. See also Kehillah (community), Va’ad kashrus Competition among Kosher certification agencies, 3, 6, 37–38, 64, 73, 89, 90, 99, 100, 105, 110–111, 119, 130, 132, 133, 138, 159, 161–162; rise of brand competition among Big Five, 53–58, 133; competitive advantage of larger agencies, 60; allegations of unfair

226

INDEX

Competition among Kosher certification agencies (continued) competition, 73, 104–105, 122–125; AKO industry standards for fair, 100, 125–126; price competition, 138 Consumers of Kosher food. See Kosher consumers Cooking equipment, 40–42, 60, 64, 72, 83, 95, 100 COR, Kashruth Council of Canada (kosher certification agency), 96 Corruption. See Fraud and corruption CRC (kosher certification agency), 56–57, 63–64, 72; leading role in ACKO/AKO, 80, 92, 96; “Understanding the Reliability of Kosher Agencies” web document of, 85–86; list of recommended certifications, 101–102. See also Big Five certification agencies; Fishbane, Sholem (Rabbi); Shandalov, Benjamin (Rabbi) Crisco, 44, 47 Dombroff, Yakov (Rabbi), 112–115 Duncan Hines, 47 Earth Kosher (kosher certification agency), 81, 97, 129, 164–165 Eco-kosher, 164–165 Ecolabeling, 150–152 Economics of industrial kashrus, 36 Elefant, Moshe (Rabbi), 66, 89, 109 Ethical Kashrus movement, 164–165 Federal Food, Drug, and Cosmetic Act of 1938 (FDCA), 148 First Amendment, U.S. Constitution, 113–115, 125, 162–163 Fishbane, Sholem (Rabbi), 57, 90, 96, 124 Flavor, transfer of between prohibited and permitted foods, 40 Food and Drug Administration (FDA), 111, 141–143, 145 Foodborne illness. See Food poisoning Food ingredients and ingredient certification, 6, 36, 37, 40–42, 45, 49, 55, 59–60, 65, 69, 70, 74, 86, 88, 132, 137; databases of maintained by large certification agencies, 60; Schedule A ingredients, 75, 79, 166–167; need for standards in, 81–84, 95–98, 100–102, 105, 135, 162–163. See also Adulteration; Vinegar Scandal of 1986; specific foods by name

Food labeling, 130–131; front of package (FOP) labeling, 2, 148–150; kosher certification as a model for regulation of, 140–148. See also Food and Drug Administration (FDA) Food poisoning, 1–2, 140, 143 Food preparation, kosher restrictions on, 40–41. See also Catering; Food service Food safety: at Peanut Corporation of America, 1–2, 141, 143; kosher certification as model for improving, 130–131, 148–150; kosher certification as a proxy for food safety certification, 209n7. See also Food and Drug Administration (FDA); Food Safety Modernization Act (FSMA); Global Food Safety Initiative (GFSI); Grocery Manufacturers Association (GMA); U.S. Department of Agriculture (USDA) Food safety audits, 7, 130, 136, 143–147, 153 Food Safety Modernization Act (FSMA), 142–143, 145–146 Food service. See Catering; Restaurants Fraud and corruption, 3, 6, 10–11, 13, 152; Live Poultry Commission Merchants’ Protective Association and, 9–10, 24–25; in ancient world, 13–14; in medieval era, 16; in early America, 19; industrial kashrus and, 36; overcoming historical legacy of, 36, 111, 121, 127–128; management and professionalization as preventive strategies against, 37–38; consumer alerts, 65, 107–109; allegations of lax supervision and, 104, 122; recent allegations of, 104–111, 121–128; private versus government regulation and, 115–121; unnecessary certification, 121–122; lax supervision, 122; unfair competition, 122–125 . See also Adulteration; Kosher fraud laws; Meat, kosher; Mislabeling; Peanut Corporation of America; Poultry; Shelat Kosher Foods of Chicago Genack, Menachem (Rabbi), 57–58, 61–63, 90–93, 99, 100, 165. See also OU, Orthodox Union Kosher Division (kosher certification agency) Glatt kosher standard, 157–158 Global Food Safety Initiative (GFSI), 146–147 Goldstein, Abraham, 45, 53, 55

INDEX

Gordon, Joseph. See People v. Gordon Government regulation: limits of, 2, 6, 130–131, 153; versus private, 4–5, 106, 115–121, 128, 130–132, 136–138, 143–145, 148–150; of kosher food, 10–11, 27–33. See also Kosher certification as a model of private regulation; Kosher fraud laws; Meat, kosher Grape juice, 41 Grocery Manufacturers Association (GMA), 146–147 Halal dietary requirements, 3, 59 Halbfinger, Abraham (Rabbi), 102, 162. See also KVH, Vaad Harabonim of New England (kosher certification agency) Haredim, 87–88 Hasidic certification agencies, 81, 89, 123 Health claims, 2, 148; kosher certification as a proxy for health claims, 209n7 Heinemann, Moshe (Rabbi), 56, 64, 89–91 Heinz, 39, 44, 71, 182n5 Howard Johnson’s, 35–37 Ice cream, 35–36, 117, 203n50 Industrial Food Revolution, 4, 39, 44, 183n7 Industrial kosher supervision. See Kashrus; Kosher certification; Kosher certification agencies Industrial morality, 134–135, 138–140 Industry standards: in industrial kashrus, 3, 4, 6, 39, 43, 72, 82–84; creation and enforcement of by Big Five, 72–73, 97–102, 122, 133, 135, 161–163; “Understanding the Reliability of Kosher Agencies” (CRC web document) and, 85–86; increased stringency in since early 1980s, 85–89; nonconformity with, 100–103; for fair competition, 125–126; adherence to 125–128, 132; glatt, 157. See also Association of Communal Kashrus Organizations (ACKO); Association of Kashrus Organizations (AKO); American Standard of Kashrus; Supply chains Information technology, 65 Ingredient verification. See Food ingredients and ingredient certification Interdependence. See Networks; Supply chains International Flavors & Fragrances (IFF), 125

227

Interpersonal relationships: Alexander Rosenberg with clients, 42–43, 47–48, 64–65, 71–72; between agency personnel, 86, 89–92, 95, 99, 100, 129–130; among kashrus professionals, 109; between kosher agencies and clients, 118–119, 127, 133; Rabbi Blech on, 129; kosher certification as successful regulatory model and, 130, 132–136, 147. See also Competition; Networks; Reliability; Reputation and reputational sanctions; Trust Jacob Branfman & Son, 9–10, 176n1 Johnson, Howard, 35–36 Joseph, Jacob (Rabbi), 21–24, 33–34 “K,” generic kosher symbol, 45 Kashrus: defined, 7; origin, 7; levels of observance and justification for, 7–8, 176n8; meat and poultry, 11–13; general principles, 39–41; increased stringency in standards of since early 1980s and, 85–89. See also American Standard of Kashrus; Ethical Kashrus movement; Industry standards; Kosher certification; Meat, kosher; Passover Kashruth Association of Greater New York, 29–32; S.S. & B Live Poultry Corp. v. Kashruth Association, 32, 181n62 Katzenstein, Howard (Rabbi), 107 Kehillah (community): traditional, 14–18, 32–33, 62, 87; New York City Kehillah, 25–27, 43 KOAOA, Kosher Overseers Association of America (kosher certification agency), 61 Kof-K (kosher certification agency), 35–38, 53–55, 63–64, 80; OU and, 37; reputation of, 37; independent rabbinic counsels and, 37–38; specialization at, 38; founding of, 54–55; administrative structure of, 63–64. See also Association of Communal Kashrus Organizations (ACKO); Association of Kashrus Organizations (AKO); Big Five certification agencies; Senter, Harvey (Rabbi) Kosher certification, 2–5; application process for, 41–42; frequency of inspection and, 42; industrial versus meat and food service, 42; number of companies with, 58; growth of since 1980s, 58–61, 187n75; number of retail

228

INDEX

Kosher certification (continued) products with, 59; industrial food supply chains and, 60, 132–133; ingredient supervision and, 60; private-label products and, 60; of non-food items, 104–105, 122; disagreement over requirement of certification for certain foods, 121–122; factors in success of, 129–136. See also American Standard of Kashrus; Brand value; Industry standards; Kashrus; Kosher certification as a model of private regulation; Marketing and kosher certification; Reliability; Supply chains; Trust Kosher certification agencies, 2–3; management controls and professional standards, 6, 37–39, 57–69; interdependence of, 6, 71–72, 85, 132–133; specialization at, 38, 62–63, 67–68; religious commitment and, 38, 65–68, 99–100, 127; growth of since 1980s, 58–61, 187n75, 188n79; smaller agencies, 60–61, 80–81; Hasidic certification agencies, 81, 89, 123, 130, 132–133; interagency dynamic and politics in, 89–91; nonconforming agencies, 100–102; number of, 132. See also American Standard of Kashrus; Association of Communal Kashrus Organizations (ACKO); Association of Kashrus Organizations (AKO); Big Five certification agencies; Brand value; CRC (kosher certification agency); Competition among kosher certification agencies; Fraud and corruption; Industry standards; Kof-K (kosher certification agency); OK, Organized for Kashruth Laboratories (kosher certification agency); OU, Orthodox Union Kosher Division (kosher certification agency); Professionalization; Reputation; Star-K (kosher certification agency); Supply chains; Triangle K (kosher certification agency) Kosher certification as a model of private regulation, 3–5, 130–131, 140; limits of state kosher fraud laws and, 27–32, 112–115; effectiveness and integrity and, 106–111; advantages of private regulation, 115–121; versus other forms of private regulation, 131–132; factors in success of, 132–135, 152–153; democratic legitimacy and replicability

of, 136–140; religious morality and, 138–140; food safety and, 140–148; front-of-package nutrition labeling and, 148–150; ecolabeling and, 150–152. See also Fraud and corruption Kosher consumers: non-Jews as, 3–4, 58–59; desire to personalize food production of, 4; consumer demand for kosher foods, 4, 36, 58–60, 132; consumer vigilance, 29, 117, 126, 133, 138–139, 140, 146; trust in Kosher certification by, 68; observant Jews as, 101; as factor in success of private third-party regulation, 132–135; Kosher certification agencies accountability to, 137–139. See also Adulteration; Kosher certification agencies; Mislabeling; Ne’emunus (Hebrew for trustworthiness); Reputation; Supply chains; Trust Kosher dietary restrictions. See Kashrus Kosher food industry, 3–4. See also Kosher certification; Kosher consumers Kosher fraud laws: New York, 3, 27–32, 114; other states, 29, federal, 29; enforcement of, 112–115; limitations of, 112–115; Constitutional challenges to, 113–114. See also Kosher certification as a model of private regulation Kosher meat production and certification. See Meat, kosher KSA, Kosher Supervision of America (kosher certification agency), 80 KVH, Vaad Harabonim of New England (kosher certification agency), 101–102, 162 Levy, Berel (Rabbi), 55, 81, 93; vinegar scandal of 1986 and, 70–71, 111. See also OK, Organized for Kashruth Laboratories (kosher certification agency) Levy, Dan Yoel (Rabbi), 66–67, 70–71, 81, 90, 100, 124–125. See also OK, Organized for Kashruth Laboratories (kosher certification agency) Live Poultry Commission Merchants’ Protective Association, 9–10, 24–25 Luban, Yaakov (Rabbi), 64, 88, 105, 117–118 Lubinsky, Menachem, 58, 119, 123, 187n75 Magen Tzedek, 164–165 Mandel, Seth (Rabbi), 123, 156–158

INDEX

Marketing and kosher certification, 39, 44, 47–48, 57–59. See also Brand value Matzah. See Passover Meat, kosher, 40; fraud, 3, 9–10, 20, 24–25; ineffectiveness of Old World regulatory strategies in America, 5, 10–11, 32–34; ritual laws regarding slaughter and postslaughter inspection, 11–13; regulation in ancient world, 13–14; regulation in medieval and modern eras in Old World, 14–18; regulation in colonial times to mid1800s in America, 18–20; search for regulatory alternatives to communal control, 20–32; rabbinic rivalry and, 20–32, 64, 99, 103; meat certification compared to industrial certification, 36, 42, 106, 109, 111, 122; consumption statistics, 43; OU dominance of, 123–124, 155–156; in messianic era, 152; Agriprocessors scandal, 164. See also Fraud and corruption; Jacob Branfman & Son; Kehillah (community); Kosher fraud laws; Poultry, kosher; Ran Dav’s County Kosher v. State; Shechitah (kosher slaughter); Shelat Kosher Foods of Chicago; Shochet (slaughterer) Mislabeling, 2; unauthorized use of kosher symbol, 105–111, 115–120, 135; consumer protections from, 108–112. See also Food labeling; Fraud and corruption; Kosher certification as a model of private regulation; Kosher consumers MK, Vaad Hair of Montreal (kosher certification agency), 96 Mustard, 70–71 Ne’emunus (Hebrew for trustworthiness), 54, 68, 91–92, 127, 129, 187n66, 206n81. See also Trust Networks, 2, 3, 5, 44, 60, 62, 68, 72, 73, 84, 90, 92, 96, 109, 117, 119, 120, 122, 126, 130, 133, 134–137, 147, 153, 162 New governance, 4 New Jersey Bureau of Kosher Enforcement, 112–115, 131 New York City Department of Markets, 3, 10, 27–29 New York State kosher law enforcement, 27–32, 107, 109, 111–115 OK, Organized for Kashruth Laboratories (kosher certification agency), 55; food

229

ingredient database of, 60; vinegar scandal of 1986 and, 70–72, 90, 108, 110–111; rivalry with OU, 90, 93, 105, 124, 159. See also Association of Communal Kashrus Organizations (ACKO); Association of Kashrus Organizations (AKO); Big Five certification agencies; Levy, Berel (Rabbi); Levy, Dan Yoel (Rabbi); Vinegar scandal of 1986 Oreo cookies, 117, 203n50 Orthodox Jewish Council (communal organization), 56 Orthodox Judaism, 87 OU, Orthodox Union Kosher Division (kosher certification agency): early OU involvement with kosher certification, 26–28; from 1924–1972, 38, 42–53; OU Women’s Branch, 44–45; rival kosher certification agencies, 53, 57; food ingredient database of, 60; acquiring of smaller regional certification agencies by, 60–61; preeminence of, 60–61, 74–80; management oversight and professionalism and, 62–63; rabbinic coordinators and field representatives at, 62–64; human-relations training at, 64; accusation of lax supervision at Freshwater Fish Marketing Corporation by, 104, 122; unauthorized use of OU kosher symbol, 106–107; scandal at Shelat Kosher Foods of Chicago and, 108–109, 200n19; contestation over certification of fresh fruit by, 121–122; Kosher meat certification and, 122–124, 155–160. See also Association of Communal Kashrus Organizations (ACKO); Association of Kashrus Organizations (AKO); Big Five certification agencies; Elefant, Moshe (Rabbi); Fraud and corruption; Genack, Menachem (Rabbi); Katzenstein, Howard (Rabbi); Luban, Yaakov (Rabbi); Meat, kosher; Rosenberg, Alexander S. (Rabbi); Unfair competition Pareve foods, 40, 108, 117, 138 Passover, 23, 41, 63, 80, 90, 110 Peanut butter, salmonella in, 1 Peanut Corporation of America, 1–2, 141, 143, 175n1 People v. Gordon, 32

230

INDEX

PETA (People for Ethical Treatment of Animals), 139 Pickles, 39, 63, 70–71 Plums, 121 Poaching clients, 73, 86, 93, 99, 123–125, 163. See also Unfair competition Politics of kashrus, 86, 89–91, 122. See also Ne’emunus (Hebrew for trustworthiness); Reliability; Reputation; Trust Pollak, Avrom, 55–56, 80, 89, 90, 124. See also Star-K (kosher certification agency) Poultry, kosher: Live Poultry Commission Merchants’ Protective Association and, 9–10, 24–25; kosher laws regarding slaughter and postslaughter inspection of, 11–13, 17; reform attempts of kosher poultry market, 21–24, 27, 95, 114; New York Live Poultry Chamber of Commerce, 24–25; government corruption and, 28; S. S. and B. Live Poultry Corp. v. Kashruth Association lawsuit and, 29–32, 63, 181n62; labor disputes and 30; Shelat Kosher Foods of Chicago and, 108–109, 200n19. See also Fraud and corruption; Meat, kosher Powell, Doug, 143–148 Price-fixing, 3, 10, 24, 161. See also Fraud and corruption Private food safety audits. See Food safety audits Private-label products, 60, 166 Private regulation: food safety audits, 1–2; advantages of over government, 4–5, 115–121, 130–131; industries with, 5; forms of private regulation, 131–132; democratic legitimacy concerns and, 136–138; sources on responsiveness and accountability in, 202n46. See also Food labeling; Food safety; Kosher certification as a model of private regulation Private third-party certification and regulation. See Kosher certification as model of private regulation Proctor & Gamble, 44, 47–48, 51–52 Professionalization, 3, 6, 38–39, 52, 57–63, 186n9; human-relations training in agencies, 64; information technology and, 65; religious commitment to kashrus and, 65–66 Pronk, Irwin, 144–147 Rabbinical Council of America (RCA), 46, 48, 51–52, 63, 90

Rabbis: rivalry in kosher meat certification, 20–32, 64–65, 99, 103; reliance on income from kosher supervision, 38, 48–49, 178n22; rabbinic coordinators and field representatives in OU, 62–64, 190n106; rabbinic rivalries, 65; advising of congregants on reliable certifications by, 98. See also Joseph, Jacob (Rabbi); Meat, kosher; Va’ad kashrus Racketeering, 24–25. See also Fraud and corruption Ralbag, Aryeh (Rabbi), 81–84, 86–87, 96, 98, 99, 101–102, 124, 162. See also Association of Communal Kashrus Organizations (ACKO); Association of Kashrus Organizations (AKO); Triangle K (kosher certification agency) Ran-Dav’s County Kosher v. State, 113–114. See also Kosher fraud laws Rebbe, Lubavitcher, 55, 66 Recalls of products, 70–72, 108–109 Regulation. See Government regulation; Kosher certification as a model of private regulation; Private regulation Reliability, 3–7, 15, 25, 34, 36, 38, 42, 48, 54, 106, 129–135, 152, 157–159; reputation for, 37, 58, 127; conflict of interest and, 45; brand value and, 58, 132; religious commitment to, 66, 140; bureaucratization of certification agencies and, 67–68; agency judgments of, 72–72, 85–92, 98, 122, 123–124; of Triangle K certification agency, 82–84; “Understanding the Reliability of Kosher Agencies” (CRC web document) and, 85–86, 102. See also Food labeling; Food safety; Industry standards; Ne’emunus (Hebrew for trustworthiness); Politics of kashrus; Trust Rennet, 40–41, 59 Reputation, 6; of shochet, 11, 16, 19, 129–130, 162–163; of kosher certification agencies, 37–38, 48–49, 53–68, 71, 73, 79, 84, 89, 116, 118, 120, 125–127, 133, 137–139, 146–148, 162; adherence to industry standards and, 126–127, 129–130; sources on power of, 206n82. See also American Standard of Kashrus; Brand value; Industry standards; Ne’emunus (Hebrew for trustworthiness); Networks; Trust Restaurants, 42, 80, 92, 159. See also Food service

INDEX

Rosenberg, Alexander S. (Rabbi), 42–53, 57, 62, 90, 186n50. See also OU, Orthodox Union Kosher Division (kosher certification agency) Rubashkin, Sholom (Rabbi). See Agriprocessors meatpacking plant scandal Schedule A ingredients, 75, 79, 166–167 Scroll-K Vaad Hakashrus of Denver (kosher certification agency), 81, 91, 122 Senter, Ari (Rabbi), 99 Senter, Harvey (Rabbi), 35–37, 53–55, 57, 81, 90, 99, 129, 140; on rabbinic rivalries, 65; on being part of Big Five, 80. See also Kof-K (kosher certification agency) Shandalov, Benjamin (Rabbi), 64, 67, 72, 92–93, 95. See also Association of Communal Kashrus Organizations (ACKO); Association of Kashrus Organizations (AKO) Shearith Israel (synagogue), 18–19, 20, 26, 63 Shechitah (kosher slaughter), 11–12, 16, 20, 29, 159. See also Meat, kosher; Poultry, kosher Shelat Kosher Foods of Chicago, 108–109 Shochet (slaughterer), 12, 15–18, 30–31, 42, 155–157; congregational shochet system (Colonial Times to the Mid1800s), 18–20. See also Meat, kosher; Poultry, kosher Size of kosher market, 2, 20, 58–59. See also Big Five certification agencies Social networks. See Interpersonal relationships; Networks Star-K (kosher certification agency), 55–57, 61, 63–64, 80–81, 86, 89–90, 100, 110, 164. See also Association of Communal Kashrus Organizations (ACKO); Association of Kashrus Organizations (AKO); Big Five certification agencies; Heinemann, Moshe (Rabbi); Pollak, Avrom Supermarkets, 60, 74, 76–79, 101, 115, 119; shelf labels, 150; supermarket survey data, 168–170. See also Food labeling Supervision. See Kashrus; Kosher certification; Kosher certification agencies Supply chains, 6, 49, 51, 60, 68, 73, 84, 90, 97–98, 101, 124–127, 133, 144, 147–151, 197n91. See also Networks

231

Tabach (slaughterer), 13–15. See also Butchers; Meat, kosher; Poultry, kosher Talmud, 13–14, 39 Tax on kosher meat, 17, 22, 25, 56 Torah: kashrus and, 7; shechitah and, 11–13 Trade associations, 10, 24–25, 32–33. See also Association of Communal Kashrus Organizations (ACKO); Association of Kashrus Organizations (AKO) Training of kosher inspectors, 38, 58, 64, 66, 68, 82, 88, 97, 105, 116, 118, 132; of shochtim, 16; state inspector’s lack of in kashrus, 112–113, 142. See also Professionalization Treyf (nonkosher), 12–16, 156–158, 177n8. See also Fraud and corruption; Meat, kosher Triangle K (kosher certification agency), 81–84, 86–87, 92–94, 101, 162, 168–169; 206n81; relations with other agencies, 90–91, 124. See also Association of Communal Kashrus Organizations (ACKO); Association of Kashrus Organizations (AKO); Big Five certification agencies; Ralbag, Aryeh (Rabbi) Trust, 3, 6, 14, 16, 19, 37, 42, 52, 53–54, 68, 90–91, 96, 118, 129–130, 134, 139, 152–153, 158, 187n66. See also Ne’emunus (Hebrew for trustworthiness); Networks; Reliability; Reputation Unauthorized use of kosher label. See Mislabeling Unfair competition, 104–105, 121–125, 159, 161–163; definition of, 205n65. See also Fraud and corruption Unions. See Fraud and corruption; Meat, kosher; Poultry, kosher; Shochet (slaughterer) U.S. Department of Agriculture (USDA), 140–141 Vaad Hoeir of St. Louis (kosher certification agency), 81 Va’ad kashrus, 81, 92, 93, 96, 97, 101, 105, 123, 125, 159. See also Association of Communal Kashrus Organizations (ACKO); Kosher certification agencies Vinegar, 41 Vinegar scandal of 1986, 70–72, 90, 108, 110–111

232

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Wein, Berel (Rabbi), 47–52, 57, 89, 123, 156. See also OU, Orthodox Union Kosher Division (kosher certification agency) Weinberger, Moses (Rabbi), 20, 33 Weiss, Luzer (Rabbi), 112, 114 Western Kosher (kosher certification agency), 61

Wikler, Yosef (Rabbi), 85, 102, 115 Wine: kosher production of and restraints on, 39, 41, 63; kosher certification of, 42; allegations of unfair competition and, 105 Women: as targets of industrial food marketing, 39; OU Women’s Branch, 44–45