Holy Smokes! A Halachic Discussion Regarding E-cigarettes

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Are e-cigarettes problematic from a halachic standpoint?
By: Rav Yosef Greenwald

Introduction

E-cigarettes are a new invention of the past few years which are designed to reduce the amount of smoke intake while still inhaling the nicotine and other ingredients present in a normal cigarette. This, of course, may reduce the potential damage caused by smoke not only to others in the surrounding area, but also to the one using it.

There are two primary halachic issues that may arise regarding e-cigarettes. The first is the question of whether they require a hechsher, kosher certification. The second is the issue of whether e-cigarettes are considered equivalent to smoking a classic cigarette with regard to health concerns. Although we don’t have the luxury of examining written teshuvos, responsa, that discuss these issues, due to the novelty of the invention, we will attempt to discuss the relevant issues and clarify the proper halachic perspective, without offering a final definitive psak.

Do E-Cigarettes Require Kosher Certification?

Let’s begin with the kashrus issue, which will encompass the bulk of the discussion in this article. The main concern stems from the vaping liquid that is mixed together with the nicotine. This liquid may contain flavors with non-kosher animal fat. At first glance, it would seem that imbibing the scent of these flavors would not constitute a kashrus concern at all, as this should not be considered a maaseh achila, an act of consumption, and would not be forbidden under the prohibition of eating non-kosher foods. However, one passage in the Gemara (Pesachim 76b) may indicate that such inhalation is more problematic than we would have thought.

Reicha/Aroma

The Gemara in Pesachim
The Gemara cites a machlokes between Rav and Levi whether reicha milsa hee, the aroma of a particular food is halachically significant. In the case there, two types of meat were cooked together in an oven, one was kosher, and one was non-kosher.

According to Rav, reicha, the aroma, is significant, and the aroma from the non-kosher meat can be absorbed into the kosher meat in a manner that would render it forbidden. Levi though says reicha is not halachically problematic, and the kosher meat is still permitted. We should stress again that in this case, no actual be’eyn, particles of food, are actually transferred from one to the other (there is no liquid medium or other medium of transfer between the two foods); the only issue is whether the aroma is halachically problematic.1 Based on this discussion alone, one would expect the halacha to be that the kosher meat is forbidden, since the halacha generally follows Rav when he argues with others, such as Levi.

The Gemara in Avoda Zara
The problem with this conclusion is that there is another sugya elsewhere in the Gemara (Avoda Zara 66b) about a bas tiha, which is a method used to test the quality of a wine by inhaling its aroma.2 The Gemara there cites a dispute whether it is permitted to do so to inhale the taste of yayin nesech, wine that has been designated as an offering for an idol, which is assur deoraisa to use or benefit from. The Gemara there also describes this issue as one of reicha milsa, and states that Rava holds reicha is not significant. Therefore, it would be permitted to inhale the aroma of this wine, since that does not constitute a significant action or benefit. Abaye on the other hand holds reicha is significant, and it would be forbidden to do so. Now the general rule in the Gemara is that the halacha follows Rava in disputes with Abaye (except for six exceptional cases—see Bava Metzia 22b). If so, the halacha should be that the aroma is not problematic, against the ruling of Rav in Pesachim 76b.

The Analysis of Rashi
Due to this issue, rishonim dispute the relationship between these two sugyas as well as the practical halacha that emerges from them. According to Rashi (Pesachim 76b s.v. amar lach Rav), the fact that both passages employ the term reicha milsa indicates that they are parallel and involve exactly the same issue: Transferring aroma from one food to another in an oven and inhaling a forbidden aroma should have the same halachic status. Therefore, the halacha should be the same in both cases (whichever position is adopted). Based on this, Rashi himself, as well as the Rif in Pesachim and many others cited in the Tur (Y.D. 108) are lenient, following Rava’s opinion that reicha lav milsa (based on the principle that the halacha generally follows the later authoritative opinion, and Rava lived in a later generation than Rav).

The Analysis of Tosafos
Tosafos (Avoda Zara 66b s.v. Abaye amar; Rava amar), in a lengthy discussion, takes a different approach, and claims that the two sugyas refer to different issues. The passage in Pesachim focuses on whether an aroma can be transferred from one food to another without any transfer of actual particles of food. Regarding that issue, the halacha follows Rav, that recha milsa, and one food can contaminate another in this manner (and therefore non-kosher meat may not be cooked in the same oven as kosher meat simultaneously). However, the passage in Avoda Zara revolves around whether the inhalation of such a scent or aroma is considered a maaseh achila or maaseh shesiya, a halachic act of consumption or drinking. Tosafos cites a number of proofs that in principle, inhaling the scent of a forbidden item is indeed a maaseh shesiya, a halachic act of drinking.3 In their understanding, the reason Rava argues there that it is permitted to imbibe the scent of yayin nesech is due to a technical issue unique to a bas tiha: It can cause damage, and inhaling an item that causes more damage than the benefit it delivers cannot constitute a maaseh achila. Thus, according to Tosafos, the practical halacha is that reicha milsa, both concerning the transfer of aroma, as well as concerning inhalation of the aroma or scent. If so, then inhaling e-juice present in the e-cigarettes would consequently be forbidden as well, when it does not bear proper kosher supervision.

The Ruling of the Shulchan Aruch and Rema
Which of the opinions in the Rishonim is accepted as the practical halacha? The Shulchan Aruch (Y.D. 108:1,5) rules in favor of Rashi and the others that reicha lav milsa, both in the case of the meat in the oven, as well as in the case of inhaling the yayin nesech wine with the bas tiha. However, the Rema does seem to accept Tosafos as an opinion for which to be machmir, stringent. If so, then it would seem that Ashkenazim at least, who generally follow the Rema, would need kashrus supervision for the e-juice .

Does it Matter if it’s Edible?
However, this analysis as presented so far is not so simple. The reason that the bas tiha would be forbidden (if not for the unique factor that it causes damage) seems to be because the aroma emanates from wine that is forbidden itself.Therefore, inhaling it may be considered akin to drinking it (according to Tosafos). However, even if one did take a swig from the e-juice, that might be different, as it is mixed together with nicotine. The amount of nicotine present in such a drink would seem to render the whole thing poisonous if drunk normally. If so, then even when consumed in the normal manner, the mixture would seem to be eino rauy l’achila, unfit for consumption. If consuming it normally would not be forbidden, then it stands to reason that imbibing its scent as well would not be forbidden, even if it is not kosher.

Achsheveh
There is another relevant point here as well. True, it seems that most of the flavors used for e-cigarettes are eino rauy l’achila, to the point that if a drop of it lands on one’s tongue or mustache, it leaves a very unpleasant taste. There is another principle though known as achsheveh, treating an inedible object as if it is edible by consuming it. The Rosh (Pesachim 2:1) states that one who consumes a stale, moldy piece of bread on Pesach has still violated the prohibition of consuming chametz on a rabbinic level. Although it is technically inedible, his eating demonstrates that he considers it significant to him, and therefore it is still forbidden. This ruling is accepted by the acharonim as well (see Mishna Berura to Siman 442). If so, one could perhaps argue that inhaling the e-cigarette is also forbidden due to the concept of achsheveh.

In order to accept this, though, we would have to extend the rules of achsheveh to include cases of inhalation, not just actual consumption, and argue that this too is considered a form of derech achila. Since achsheveh to begin with is somewhat of a novelty, perhaps it can indeed be applied here in the same novel way it is applied to actual food consumption.

Anointing with Non-kosher Products
There may be some precedent for such a position based on the Gra, who is quoted as saying that one may not use soap made out of animal fat in order to wash oneself. The reason for this (despite the fact that no ingestion is involved) is that fact that the Gemara (Yoma 76b) states that anointing oneself has the same halachic status as drinking (in the context of Yom Kippur prohibitions of sicha, anointing). If so, says the Gra, then doing so with a non-kosher soap would also be forbidden. Based on this position of the Gra, one could conceivably argue that just as using non-kosher soap could be questionable, so too inhaling the scent of the e-cigarette is also questionable, and might be forbidden according to the Gra.

Nevertheless, it would still seem logical to rule that it is permitted to inhale the e-cigarette, since the standard halacha does not follow the Gra on this point.4 In addition, one can argue forcefully that one need not extend the other rules this far as well, as achsheveh itself is a rabbinic stringency. In addition, as mentioned in the previous paragraph, it is not at all clear that achsheveh should actually apply to inhalation as well as consumption, plus in this case the entire concern to begin with is only a stringency of the Rema that reicha and inhalation of a non-kosher substance are forbidden.5

Pesach
Even if one concludes that it is permitted to use the e-cigarettes normally, it is possible that for Pesach we should require special certification. The reason is that an extra stringency exists for Pesach that in order to permit inedible food to be used, it must be nifsal me’achilas kelev, inedible to the point that a dog would not be able to eat it, and it is unclear whether that condition is fulfilled here.

However, here too, the question may be subject to dispute, as it may be partially parallel to the question of whether one must use toothpaste that is kosher for Pesach, which has been disputed by recent poskim. In the United States, toothpaste was never allowed without Pesach certification.6However, in Israel, no hechsher was ever required. In fact, there was a famous incident with Rav Shlomo Zalman Auerbach where he claimed that toothpaste was in fact nifsal me’achilas kelev, so some students performed an experiment: They gave some toothpaste to a dog, and the dog lapped it up. When they returned to relate the results to Rav Shlomo Zalman, he told them that the dog was crazy.7

In the United States as well, some poskim did not require a hechsher on such items. Rav Yaakov Kaminetsky was known to have said that the definition of nifsal me’achilas kelev for Pesach is only relevant for foods that have spoiled. However, items that were never made as food to begin with never qualify as a food. Therefore, it is irrelevant whether a dog would eat them or not. According to this logic, the same can be argued concerning the e-juice, and it would consequently never require a hechsher. However, many poskim in Israel do not accept this line of reasoning as a general principle (with the exception of toothpaste, as mentioned above), in which case perhaps they would argue there is reason to be machmir about the e-cigarette.

Conclusion about the Kashrus
Based on everything we have seen, it seems that there may be some considerations that could lead one to be stringent only as a stringency. However, the basic ruling should be that it is permitted. It seems that some Kashrus organizations today in the U.S. adopt the lenient approach, while others, such as the Chicago Rabbinical Council (C.R.C.), do require certification.

The Health Concerns of E-cigarettes

The other relevant halachic issue for e-cigarettes is whether the serious health concerns associated with smoking are relevant here as well. As has been discussed in previous articles, today regular smoking should be considered completely forbidden according to the halacha due to the danger involved.8 There were some poskim in previous times that allowed it, including Rav Moshe Feinstein, who invoked the notion in the Gemara of shomer pesa’im Hashem, Hashem watches over the innocent.9 However, Rav Dovid Feinstein, Rav Moshe’s son, has stated that even Rav Moshe, who refused to issue a ruling forbidding smoking in his lifetime (though he did not recommend it), would reverse his psak today.

Are E-Cigarettes Any Better than Cigarettes?
E-cigarettes contain the same dangerous elements as regular cigarettes, and it would seem that they should be forbidden as well. However, one who is a smoker and trying to wean himself away from smoking might try these instead, as they may be easier to stop. In addition, the amount of inhalation of nicotine may be reduced, and the damage to one’s body may be less. Therefore, in this case, it might be permitted to use e-cigarettes instead of regular ones. However, it is certainly not allowed to start due to the injunction of v’nishmartem l’nafshoseichem, taking care of one’s health.

Derech Eretz and a Life of Meaning
Let us conclude with one more point about the general imperative to protect our health and its relevance to this case. Although as mentioned there is an injunction to safeguard our health based on v’nishmartem, we also have an assurance of shomer pesaim Hashem, that Hashem will protect those who engage in normal activities, as Rav Moshe explained, which is based on the Gemara (Yevamos 12b and elsewhere).10 Consequently, eating greasy french fries, doughnuts, and the like, may not be the healthiest thing to do. However, doing so would not violate a halachic prohibition, as eating these foods is considered in the realm of normal behavior (like smoking used to be), and we can apply shomer pesa’im Hashem.

There have recently been some questions asked about the kashrus on medical marijuana, due to the possibility that the recreational use of marijuana may be normalized soon. However, before discussing the kashrus questions, one must ask whether it is acceptable to consume marijuana. It would seem to be in the same category as significant alcohol consumption. Leaving aside any possible physical damage caused from overdosing, there is no specific halacha that forbids one from getting drunk, aside from being careful not to miss the proper time for Tefilla, and not issuing halachic rulings while in an inebriated state.11 Nevertheless, it should be obvious that this is wrong, based on what could be called the “fifth section of the Shulchan Aruch,” using common sense in living one’s life. Clearly, Hashem does not want a person to waste away their life in a state in which one cannot serve Hashem properly. Rather, one should live life as an intelligent, sober person. One who overdoses on alcohol, or engages in mind-altering or mood- altering by ingesting marijuana, is taking away the ability to function as a normal person. This falls under the category of derech eretz, proper conduct, which precedes the observance of halacha. In other words, even if one does not directly violate the Shulchan Aruch, one must live in a manner in which the Torah and halacha can be fulfilled.

To return to e-cigarettes, this notion of living healthy is an important reason why, even if it is concluded that they are 100% kosher even without certification, a non-smoker should not start using such a product. In the merit of being able to curb one’s physical temptations, hopefully we as a people can merit to reaching great spiritual heights, and achieve the closeness to Hashem that He, and we, so desire.

1 The possibility of a transfer of particles between the two foods, or of particles previously found in the oven into the kosher food, involves the issue of zeiah, steam, which may be more of a serious halachic problem, and is discussed in the Shulchan Aruch elsewhere (Y.D. 92:8 and commentaries there). The question of why indeed the Gemara does not raise the issue of zeiah here is a complicated one, and the acharonim give a number of answers to explain this point, which all impact the practical halachos of using ovens for both meat and dairy. For a summary in English, see R.Chaim Jachter, “Cooking Meat ,” Journal of Halacha and Contemporary Society, .

2 According to Rashi, it seems that this refers to a hole made in the stopper of a wine barrel, through which one smells the wine, while according to Rabbeinu Chananel (cited in Tosafos), it refers to a glass tube inserted into the barrel in which one inhales the scent of the wine.

3 Although the passage in the Gemara focuses specifically on yayin nesech, from which any type of hanaah, benefit, is forbidden, it seems that Tosafos interprets the issue of the Gemara here to apply to any item prohibited to eat or drink, even if other types of benefit from it are permitted.

4 See Igros Moshe (O.C. 3:62 and Piskei Teshuvos to O.C. 442) for a discussion of this point (concerning usage of these products on Pesach and chametz concerns).

5 Another issue with similar concerns to our case is that of vitamins. Many poskim in Eretz Yisrael did not require that vitamins (of the pill type that are non-chewable) have kosher certification, as they are not rauy l’achila. However, Rav Yosef Eliyahu Henkin, one of the gedolim in the United States of the previous generation, held that vitamins do need a hechsher. He argued that swallowing them is considered their derech achila, and since they are being used for nutrition, they have the same status as food, and not like medicine (pills), which does not generally require certification. Apparently, Rav Henkin held that swallowing in this manner can be considered derech achila, and we would apply the concept of achsheveh to forbid non-kosher vitamins.

6 See, for example, R.Shimon Eider’s book, “The Laws of Pesach,” where he cites Rav Moshe Feinstein and Rav Aharon Kotler who are machmir about this.

7 An almost identical story is told about Rav Yosef Dov Soloveitchik.

8 See the series on “Second-hand Smoke in Halacha” where this issue is discussed in more detail, as is the question of taking care of one’s health.

9 As discussed in the article cited in the previous footnote, Rav Moshe felt that actions that were normal and accepted in society are permitted based on the principle of Shomer Pesa’im Hashem, Hashem watches over the innocent.

10 As mentioned above, this notion is discussed in more detail in the series on Second-Hand Smoke in this journal.

11 Both of these issues are discussed in the Gemara (Eiruvin 64a) and are cited in the Shulchan Aruch.

BAIS HAVAAD HALACHA CENTER

2 COMMENTS

  1. I don’t see what the shaila is. Just get the flu shot and everything will be fine. You will be protected and you’ll live forever.

  2. i dont understand how you can say that cigarettes and electronic cigarettes pose the same harm. do you have evidence to prove this statement

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