The Great “Open Milk Bottle Controversy”

27

By Rabbi Yair Hoffman for the Five Towns Jewish Times

The controversy has been raging on for close to two decades now.

And it has appeared at various venues. There is an Exxon Station on Route 9 in Lakewood, New Jersey, at the corner of Route 9 and County Line Road.

There is a Sunoco station right past exit 5 on the Palisades Parkway in New Jersey, as one heads toward the George Washington Bridge.

And now, there are ten Starbucks in which the controversy has hit. [For those that feel the list is not exhaustive, there is also a 7-11 on Route 9 in Lakewood, New Jersey too, and a Coffee Bean in Los Angeles, California on the corner of Beverly and Alta Vista. ]

NON- JEWISH ESTABLISHMENTS AND CHOLOV YISROEL

These gas stations and coffee shops are often visited by coffee lovers across the Charedi spectrum, and the non-Jewish owners are catering to them by making Cholov Yisroel available to add to their coffee. Generally speaking, these gentile establishments are providing their Cholov Yisroel consumers with both the lowfat milk variety (usually with a blue cap and blue label on a half-gallon plastic container) as well as the regular variety (usually with a red cap and red label).

THE WARNING

Last year, a number of Chassidishe Poskim published a warning that an open bottle of Cholov Yisroel in a non-Jewish establishment renders the bottle no longer Cholov Yisroel and thus forbidden according to halacha. Yet numerous Cholov-Yisroel-only Jews continue to consume the milk, assuming that it is quite remote that any gentile worker or owner might switch out the Cholov Yisroel milk with regular milk just to provide religious Jewish customers with “kosher” milk for their coffee. And now, with the announcement that ten Starbucks are now exclusively stocking “Pride of the Farm” brand Cholov Yisroel milk – the controversy is once again raging. This is not to say, by the way that Starbucks are certified kosher – they are not. It is just that if someone wants to drink their brewed coffee – Cholov Yisroel is now available.

THE PSAKIM

This author posed the question to a number of well-respected Chassidishe Poskim who stated unequivocally that the milk is not kosher. These Poskim included Dayan Hershel Ausch, the Av Bais Din of Karlsburg [headed by Dayan Yechezkel Roth shlita, the Posaik of the Satmar Rebbe Rav Yoel Teitelbaum zt”l], Rav Yisroel Dovid Harpenes, a noted Posek in Williamsburg, and Poskim from Skver. Their rationale was that Cholov Yisroel requires a chosem – a seal, and that a] an umdanah (roughly translated as a compelling halachic assumption which can be used to form legal rulings) is not effective when a chosem is required and b] there is, in fact, no umdanah here because the gentile will always want to provide milk for his customers and will thus pour regular milk into these containers behind closed doors.

However, Rav Yisroel Belsky zt”l, when asked about the Route 9 Exxon gas station in Lakewood, ruled that it was unquestionably permitted. He explained that everyone knows that when one bottle of milk is poured into another bottle of milk that is outside it causes spoilage and no one would do that. Some, however, questioned whether or not workers at a gas station would be aware of this point.

This author spoke to another highly regarded litvishe posek who expressed his opinion that the milk would still be considered Cholov Yisroel whenever there is no “chashash chiluf – a concern of switching.” He disagreed with the idea that an umdanah is ineffective when a seal is required.

ANALYZING THE SOURCES

The operative chapter behind this raging controversy is found in the 108th chapter of the Yore Deah section of Shulchan Aruch which contains thirteen s’ifin or sub-paragraphs.

NEED FOR A SEAL

The first s’if (sub-paragraph) explains that meat or a piece of fish where the fins and scales were removed require two seals (chosmos) when sent through a non-Jewish intermediary or messenger. However, milk or cheese or other things that are only forbidden by Rabbinic law, require only one seal. This is the source in Shulchan Aruch that one seal is required to ensure that Cholov Yisroel is not replaced with regular store bought milk.

WHEN THE SEAL IS NO LONGER EXTANT

In s’if two the Ramah tells us that if the Chosem, the seal, is no longer extant – it is still forbidden only if a] there is a concern that he may have switched it and b] he derives benefit from having switched it. The Poskim who forbid the milk would respond that indeed there is a concern that he switched it in order to provide for his customers, and that there is a benefit in the owner making money on the sale.

TWO HEBREW LETTERS COMPRISE TWO SEALS

In s’if three, it is explained that the formation of two Hebrew letters is considered like two seals rather than one seal. In other words, we see that the idea of a seal is not a foolproof tamper-proof system of protection. A gentile who tries hard enough could feasibly forge two Hebrew letters. Yet the assumption is that he will not go through such extensive effort.

In s’if four we learn that, according to the Ramah, if the item was sent in a bag and the bag had a seal – it is not considered a valid seal. The seal apparently must be on the item on not on the outer sack.

WHEN THE BETTER ONES HAVE A SEAL

In s’if five we learn, in regard to a Rabbinically prohibited item, that if he recognizes that some of the products still retain their seal, and they are the higher quality ones – then the other ones are still considered kosher – since the gentile would have switched out the higher quality ones. We see from here strong evidence that an umdanah is, in fact, utilized even when there is a requirement for a seal.
S’if six tells us that the physical signs that an animal was slaughtered is not sufficient to be treated as a Chosem.

PUBLIC PLACE

S’if seven tells us that if the place in which the gentile was sent with the item is considered a place where the public passes – it is permitted. The reason is that the gentile will be concerned that he will be seen and he will be viewed as a thief. However, notes the Shulchan Aruch: Ideally, a person should not send food with a gentile without a seal.

This sub-paragraph is fascinating and is in all probability the most germane to the raging controversy under discussion. Some wish to permit the milk based upon the fact that if the owner or an employee switches out the Cholov Yisroel milk with other milk, it will be readily seen by passersby. Indeed the Taz and the Pri Chadash both write that even if the passersby are only gentiles – that gentile would be concerned that they would tell on him.

ARE THESE PLACES PUBLIC PLACES?

They also point out that, generally speaking, you can always look into these Starbucks because their construction is made of glass. The Palisades Sunoco Station is also open 24-7 as well as the Exxon Station on Route 9 in Lakewood.

NOT VIEWED AS A THIEF – BUT CAUGHT AS ONE

Those that forbid the milk could argue that there is a huge distinction between our case and that of the Shulchan Aruch. The Shulchan Aruch’s wording is that the gentile would be afraid that he would be “caught red-handed” and called a thief and hence – pounced upon and or jailed as a thief. This is a far cry from switching milk containers which would carry very little repercussions.

LAWSUITS ARE JUST LIKE BEING POUNCED UPON AS A THIEF

Some rabbonim have pointed out that the fear of being “caught red-handed” is a real one – particularly after the famous 2001 McDonald’s Corporation French Fry case – where McDonalds agreed to pay ten million dollars for misleading consumers about their French Fries for ten years. In 1990, after being pressured by the vegans, McDonald’s announced that its restaurants would no longer use beef fat in cooking French Fries and that only pure vegetable oil would be used.

But on May 1, 2001, a lawsuit was filed in Seattle on behalf of two Hindus who didn’t eat meat and one non-Hindu vegetarian. The french-fry category of the official McDonald’s ingredient list made no mention of beef tallow or beef extract. They only listed potatoes, partially hydrogenated soybean oil, and natural flavor.

McDonald’s tried doing damage control by issuing a statement at the time of the lawsuit that said: “The natural flavoring consists of a minuscule amount of beef extract,” – but it was too late. They paid out ten million dollars.

Some rabbonim claimed that Starbucks Corporation and perhaps the owners of the Route Nine Exxon and the Exit Four Sunoco are aware of the lawsuit against McDonald’s and would thus be very careful.

Others claim that they can still switch out the milk behind closed doors or behind the counter, and that most of the workers and managers are completely unaware of the lawsuit against McDonald’s – and thus the distinction between contemporary times and the times of the Shulchan Aruch is still very valid.

ONLY AN EMPLOYEE?

There is also the opinion of the Isser v’Heter (22:7-8) that we are only discussing a servant or employee of the Jewish owner and not just any gentile – where it would clearly be forbidden. Although the Shach and the Toras Chatas disagree with the Isser v’Heter, it could be that they would agree with him in regard to this case where there is no Jewish neighborhood per se (Indeed, the Toras Chatas specifically limits the leniency to a Jewish neighborhood).

THE WAY STARBUCKS WORKS

Inquiries at a Starbucks reveals some interesting facts. The Starbucks are corporate owned; they are not franchises. The Starbucks that have Pride of the Farm Cholov Yisorel carry no other milk. If a Starbucks runs out of any product they are instructed to go to another Starbucks to get that product. They would not get that product from another locale, and there is no incentive for them to do so whatsoever. It would seem, however, that they may go the closest Starbucks in such an event and if that other Starbucks is not Cholov Yisroel – there may perhaps be a concern. However, rarely if ever would a Starbucks actually run out of milk.

CONCLUSIONS

It seems to this author that an Umdana certainly would work to permit the milk even if there was no chosem, seal.

Let us also go back to Rabbi Belsky’s point – that people do not pour milk from one container to another. It seems that this information is actually taught in state-mandated health courses in which one employee and or owner of any establishment that deals with food and refrigeration must attend.

It would seem also that if there is ample Cholov Yisroel in the refrigerator there would be an umdana that the milk was not, in fact, switched. The fact that the Ramah says in S’if 2 that it is only forbidden if there is a financial benefit and an incentive would make it hard to imagine that a gentile employee would care enough to risk spilling and spoilage and the extra effort for a mere sale of a few cups of coffee.

True, S’if zayin states that ideally one should not send milk without a Chosem, but it is this author’s conclusion that the milk of exit 4 and of Exxon Route Nine still remains Cholov Yisroel – it is just not l’chatchilah.

It also seems to this author that the Pride of the Farm Cholov Yisroel milk in the ten Starbucks would not be a lack of a lechatchila either. There are so many other umdanahs associated with the Starbucks operation that an open Cholov Yisroel container in one of these ten stores would be considered full Cholov Yisroel.

Of course each person should consult his or her own rov, posek or dayan and not rely on the conclusions found here.

One should also note that some of the Starbucks actually wash some of the pots with non-kosher. This is also not ideal and often forbidden. The brew baskets of the plain coffees are generally not washed in this manner, however and even if they are – it does not present a problem (see an extremely learned CRC document on Starbucks written in 2011 by Rabbi Sholem Fishbane and Rabbi Dovid Cohen).

The author can be reached at yairhoffman2@gmail.com.

{Matzav.com}

27 COMMENTS

    • They do and I have bought them often in other parts of the US, and in Canada, at convenience stores. I do not know why the only ones I can easily find in the NY area are the very sweet Nestle Vanilla, Chocolate, and Strawberry flavors (which are OU-D but not chalav Yisrael).

  1. The author should be aware that in the 7-11 located in Flatbush on Avenue M and East 16th they also provides Cholov Yisroel milk and unfortunately there was an incident there where a frum yid walked in and saw the non jewish employee pouring non cholov yisroel (but still kosher) milk into the cholv yisroel container. When asked what he was doing he innocently replied that when they run out of the kosher milk they pour other milk into it to make it kosher. When then asked how does that make it kosher, again innocently, the employee responded that the Rabbi blessed the containers and therefore the milk inside is now kosher since it is in the blessed container.

    This employee was not playing games or trying to fool anyone. He actually thought (and was perhaps told by a supervisor) that the containers are blessed by Rabbis which makes the milk now kosher milk. So he thought all you need to do is use milk from these blessed containers and the milk, regardless of which milk it is, is then kosher.

    Clearly this is a problem

  2. It Should be Muter because of a S’fek Sfey’ka. 1st Safek is that the retail store (Gas station) switched the milk in the container from Chalev Yisroel to Chalev Stam . And 2nd Safek is that even if the retail store did switch the milk to Chalev stam milk, you also have to assume that the farmer that provided the milk to the retail store switched his milk from Cows milk to Treif milk. We are not Choy’Sesh for a S’fek Sfey’ka and it should be Muter Li’Chadchila.

    • It is a violation of federal law to sell any milk across state lines that is from any animal other than a cow, goat, or sheep. In other words, all milk itself is inherently kosher — in the US. (The additives would require supervision.)

  3. They make Cholov Stam in little tiny containers “land o Lakes” Moo Moos – individual little containers and needs no refrigeration – perhaps that is a solution

    • The Chicago Rabbinical Council investigated this a few years ago; you can find detailed discussion of these issues on their web site. It isn’t quite so simple as saying that it is always kosher.

  4. “Let us also go back to Rabbi Belsky’s point – that people do not pour milk from one container to another. It seems that this information is actually taught in state-mandated health courses in which one employee and or owner of any establishment that deals with food and refrigeration must attend.”

    NO.
    I work with food service and I see all types of cutting corners, including state health violations. The workers have to get their work done. Sometimes they are too busy to do everything by the book; sometimes they don’t remember; and sometimes they don’t care.

    • Shame on this website everytime i try to post the truth that Rav Moshes family ate/eats cholav stam. This website deems it heresy. Since when is the evident emes considered heresy? Shame on this website for censoring kosher opinions that litvaks hold from!

  5. I did not have the time to read this entire article in detail yet, but would like to make a couple of points.

    Most importantly:

    The article ends off with a quote based on the cRc “The brew baskets of the plain coffees are generally not washed in this manner, however and even if they are – it does not present a problem”

    However, this is simply not true. I have read the cRc articles, along with their updates. They clearly state the opposite, and lay out the case to PROHIBIT even the plain coffees at most Starbucks. And so does the Star-K in their article about Starbucks. They actually put out a statement when Starbucks began using the Pride of the Farm milk warning people about this.

    And another point: I am not sure if I understand the quote from Rabbi Belsky zt”l about the milk spoilage. That might be true if you store the milk in the new container long term. But in these shops, the milk gets used pretty quickly. It’s not probable that the milk would spoil any faster when poured into a new container. Additionally, I have personally poured milk from one container to another, and did not notice any spoilage.

    One more point: It is reported that in the Five Towns, there was a Deli (which has been knocked down and replaced by a Frum store) which used to carry Cholov Yisroel milk for their coffee. They were once caught red-handed pouring non-Cholov Yisroel milk into the Cholov Yisroel container.

    • cRc makes a distinction between Starbucks stores that serve sandwiches and the like which are generally non kosher, and Starbucks stores and kiosks that do not. The latter have far fewer issues. Everyone who is interested in drinking coffee at Starbucks should read the articles.

  6. rav belsky was referring to milk that is outside of the fridge. many of these small gas station convenience stores do not store the open milk in the fridge because they figure it will be used up in a few hours

  7. Notice it is the chasidishe poskim that forbid it. What is that supposed to mean? Its like saying those that wear glasses forbid it.

  8. Bottom line: I will continue to use my Nestlé Coffeemate chocolate mocha coffee creamer with my coffee every morning. Lemaaseh it’s very geshmack. I’ve tried the heimisha creamers and they all taste like rusty metal. International Delight also has some very good flavors. The Bailey’s company is not that good. Usually I can buy a 32 oz container when it’s on sale in Shoprite for under $4.00. Can’t beat that.
    I also buy for my wife the Dannon coffee yogurt. She taanus that it’s much much better tasting then the chalav yisroel brands. She’s tried them all. Nu nu, for shalom bayis it’s worth it. You anti chalav stam people really have to chill out. There are bigger problems in life. I think you guys are just jealous.

  9. How are employed, hard working parents able to pay the unrealistic exorbitant tuition prices? I drink my coffee black, I pay my bills, I don’t shnor, I pa what I can, and I broke as a bent stick…..

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