This week’s parsha mentions the mitzvah of gid hanasheh, the first mitzvah commanded to the Jews germane to kashrus. This article will examine a different area of kashrus, the rabbinic injunction against chalav akum – non-Jewish milk.

In the course of preparing this article, it has come to my attention that different communities understand various terms connected to this subject in different ways. For this reason, I wish to clarify the meaning of certain key phrases that will be used extensively throughout this article.

Chalav Akum – Literally, this means “milk of a non-Jew,” and it refers to milk that was milked by a non-Jew without any supervision whatsoever, not even by any government agency, nor in a way that industry standard can guarantee what species of mammal was milked.

Chalav Yisrael – This is milk where the milking process was supervised by a Jew.

Chalav Stam – Literally, “unspecified or regular milk.” This refers to milk that was milked by a non-Jew, but, based on oversight of government agencies or checkable industry standards, the assumption is that it is milk of a kosher species.

Non-kosher milk – This refers to milk obtained from a non-kosher animal.

The Premise for the Injunction

The starting point for Chazal’s injunction against chalav akum is actually a Torah prohibition. Let us begin with a passage from the Mishnah (Bechoros 5b): “If a kosher animal gives birth to a type of non-kosher species, it is permissible to eat. If a non-kosher animal gives birth to a type of kosher species, it is forbidden to eat. For whatever comes from non-kosher is non-kosher, and whatever comes from kosher is kosher.” In other words, if a kosher animal produces an offspring whose hooves are not split, it is nevertheless kosher. Similarly, if a non-kosher animal, such as a camel or llama that chew their cud, bears an offspring bearing split hooves, such that the offspring now has both kosher signs – it has split hooves and it chews its cud -- it is non-kosher.

The Gemara (ibid. 6b) derives that milk or anything else derived from a non-kosher species is forbidden according to Torah Law from the word “gamal,” camel, that appears in the Torah (Vayikra 11:4). Furthermore, the Gemara derives from a repetitive pasuk in Devarim (14:7) that not only is the camel itself forbidden, but also its milk.

The Injunction against Chalav Akum

The Mishnah (Avodah Zarah 35b) lists several non-Jewish foodstuffs that are prohibited to eat, but one is allowed to derive benefit from them. One of these items is “milk that was milked by a non-Jew without a Jew’s supervision.”

One of the reasons why Chazal made this injunction was out of concern that the non-Jew added milk from a non-kosher animal (ibid.). He may have done so in order to increase the volume of milk he has to sell (Meiri, ad locum). Alternatively, perhaps the non-Jew was not careful that the utensil into which he began milking was clean of prohibited product such as milk from non-kosher species (Mordechai, Avodah Zarah #826; Semak #223; Biur Hagra, Yoreh Dei’ah 115:4). It should be noted that according to this opinion, the concern specifically is that some non-kosher milk will be mixed in with the kosher milk. The Gemara states that there is no concern that the non-Jew will attempt to sell pure non-kosher milk to his Jewish customer, as one can easily differentiate between the two, based on its appearance (Avodah Zarah 35b).

Gilui – Uncovered Liquids

Before proceeding with the next reason why chalav akum is prohibited, a brief introduction is required. Chazal forbade drinking three liquids – water, wine and milk, as well as eating various types of fruits, that were left uncovered (Mishnah, Terumos 8:4-6). This injunction is referred to as “gilui” – “uncovered.” The concern was that perhaps a snake may inject poisonous venom into the drink or food, rendering it dangerous for consumption.

Accordingly, another reason why non-Jewish milk is forbidden is because of the prohibition against gilui (Yerushalmi Avodah Zarah 2:8). Since non-Jews may not be particular about gilui, there is concern that the perfectly kosher milk was left uncovered, and some poisonous venom found its way into the milk.

The Rishonim raise the question why Chazal limited their injunction to chalav akum. If the concern is gilui, it should be forbidden to buy water from a non-Jew, as well, for the same reason. (Obviously, wine is not relevant to the discussion, as non-Jewish wine is forbidden in any event.) The answer is that although non-Jews were not concerned about gilui, they are and were concerned about cleanliness. Therefore, when it comes to water which is drunk “as is,” they are careful to keep it covered and clean. Milk, on the other hand, is usually not consumed as is, but is first strained or homogenized (and, in today’s world, pasteurized). Therefore, the non-Jew will not be as concerned to keep it covered. Although the straining might be sufficient to satisfy the non-Jew’s concern for cleanliness, it does not remove the concern of venom (Tosafos, Avodah Zarah 35a, s.v. mishum nikur).

Although some Rishonim (Tosafos, Avodah Zarah 39b, s.v. ee; Tosafos, ibid. 35a, s.v. mishum) maintain that one needs to take into account the reason of gilui, most Rishonim (Rif and Rosh, Avodah Zarah chap. 2; Rambam, Hilchos Maachalos Asuros 3:13), as well as the Shulchan Aruch (Yoreh Dei’ah 115:1) rule that we are only concerned about the non-Jew mixing in milk of a non-kosher animal.

Davar Shebeminyan

Before proceeding to the next part of our discussion, we need to introduce a new topic. Throughout Shas, we find that many decrees put into place by Chazal were voted on by a gathering of sages. Such decrees are referred to as “davar shebeminyan.” Although most will recognize the word “minyan” as referring to a quorum of ten for davening, it can refer to anything that is counted, and in this case, it means the votes cast by the sages to determine whether or not to institute a specific decree.

The Gemara (Beitzah 5a) sets forth a rule, derived from pesukim, that “kol davar shebeminyan, tzarich minyan acher lehatiro.” This means that whenever Chazal had a reason to put a particular piece of legislation into place – and it was voted on -- if it will ever occur that the reason is no longer applicable, we cannot merely ignore the law, but, rather, another gathering of sages must vote to rescind the law.

Now, let us see how this applies to chalav akum.

There is a disagreement among the early authorities whether the injunction against drinking chalav akum is a davar shebeminyan or not. Some maintain that it is and, therefore, even when there is no concern that a non-Jew added non-kosher milk, it would still be forbidden to drink. According to this approach, the original prohibition was instituted only when no Jew supervised the milking. Chazal themselves included in the decree that when a Jew watches the milking process, the milk is permitted (Shu”t Mahari Bruna #78, citing Rabbeinu Yonah).

Other authorities contend that the injunction against chalav akum was never a davar shebeminyan. This means that Chazal recognized a concern, and ruled that each individual is obligated to make sure that he is consuming kosher milk. However, if we know for a fact that there is no non-kosher milk, the milk is permitted (Shu”t Radvaz, vol. IV, #1147).

We will see that several Acharonim apply the latter approach and therefore rule leniently at times.

Definition of “Seeing”

The Mishnah (Avodah Zarah 39b) states that if a Jew watches the process, the milk of a non-Jew is permitted. The Gemara explains that it is unnecessary for the Jew to observe the milking process from start to finish; as long as he has the capability to watch, the milk is kosher. The Gemara notes that this is true even in a situation where the non-Jew has a non-kosher animal in his herd whose milk could easily be added to the “kosher” milk. Nevertheless, since the non-Jew knows that the Jew can observe the milking at any time, we can assume that he will not add milk from the non-kosher animal, since he knows that if he is caught he will lose the sale.

The Rishonim add two stipulations to this: 1) The non-Jew is milking the animal for the benefit of the Jew and 2) he is aware that Jews do not drink the milk of a non-kosher animal. If he is not aware of these two points, he will not be afraid to mix in non-kosher milk (Shulchan Aruch, Yoreh Dei’ah 115:1).

The Gemara’s example of the Jew being able to see the milking at his whim is where the Jew is sitting near the herd. While sitting, he cannot see the non-Jew milking, but when he stands up, he can. In this scenario, the non-Jew is afraid to be caught adding non-kosher milk. The Rishonim extend this lenience and they rule that the Jew does not have to “sit next to the herd” the entire time. Rather, he can be “yotzei venichnas,” “go out and come in.” In other words, the Jew is allowed to leave his post while the non-Jew is milking his herd; since he can reappear at any moment without warning, it is not necessary for the Jew to be in the immediate vicinity at all times (Semak #223; Issur Veheter 45:2; Shach, Yoreh Deah, 115:4).

Clean Utensils Only

Several Rishonim maintain that although the Jew does not have to watch the entire milking process, he must be there before the milking commences in order to ascertain that the pail had no non-kosher or unsupervised milk beforehand (Semak #223; Mordechai, Avodah Zarah #886, citing Rabbeinu Peretz; Issur Veheter 45:1; Rema, Yoreh Dei’ah 115:1).

Furthermore, there is a custom to be stringent and not use the utensil usually used by the non-Jew during the milking. This is out of concern that there is some non-kosher milk residue in the utensil that will go unnoticed (Issur Veheter 45:2; Rema, Yoreh Deah 115:1).

Bidi’eved, if the non-Jew’s usual milking utensil was used, the milk is permitted, provided that the utensil was inspected beforehand (Issur Veheter 45:2). If it was not examined before the milking, there is a disagreement among the Acharonim whether the milk can be used (Rema 115:1; Shach 115:8).

No Non-Kosher Species

There is a disagreement among the Rishonim concerning the milk of a non-Jew who has no non-kosher mammals in his possession. Some maintain that when the non-Jew does not possess any non-kosher animals and he milks his herd without supervision, the milk is permitted (Shaarei Dura #82, citing Bnei Romi). Others argue that no distinctions can be made, and if a Jew does not observe the milking, or at least have the capability to do so, the milk is forbidden (ibid, citing Rashi).

According to a third opinion, although the Jew must be on the premises during the milking process (or minimally, yotzei venichnas), where there are no non-kosher animals, he does not need to see the actual milking. The reason why this is sufficient is that since there are no non-kosher animals, the only concern is that the non-Jew will bring non-kosher milk from another place. Since the Jew is on the premises, the non-Jew will be afraid to do so (Toras Habayis Hakatzar, 3:6, page 90b; Meiri, Avodah Zarah 35b). This view is codified by the Shulchan Aruch (Yoreh Dei’ah 115:1). In any event, as we mentioned earlier, the Jew must be there at the beginning of the milking to ascertain that the utensils used are clean of any non-kosher milk residue (Rema ad loc.).

Early Leniencies

We will soon discuss the famous ruling of Rav Moshe Feinstein regarding the consumption of non-chalav Yisrael milk. However, it should be noted that, prior to Rav Moshe, there were other lenient rulings proposed by great Acharonim. One of these was issued by the Pri Chadash, who lived during the second half of the seventeenth century. He ruled that in a city where non-kosher milk is not found, or that it is more expensive than milk from a kosher animal, one may drink milk of a non-Jew, even if a Jew did not supervise the milking. He writes that this was the custom in Amsterdam, and that he, himself, followed this practice (Pri Chadash, Yoreh Dei’ah 115:6).

It should be noted that this ruling follows the view cited above that the prohibition against chalav akum is not a davar shebeminyan. In other words, the Pri Chadash’s ruling is applicable only if we maintain that once the reason behind the prohibition does not apply, the injunction no longer applies either. Not everyone agrees with this premise and, for that reason and others, many Acharonim did not accept the leniency of the Pri Chadash.

Government Regulation

Rav Moshe Feinstein (Shu”t Igros Moshe, Yoreh Dei’ah #47) writes that in places where the dairies are under government regulation which does not allow them to adulterate cow’s milk -- and anyone caught doing so will be fined -- such milk is permitted. It does not have the status of chalav akum, since we have the right to assume that it is one hundred percent cow’s milk, equivalent to actually seeing the milking. Rav Feinstein calls this knowledge an “anan sehadi,” a Talmudic term that literally means, “We testify.” It refers to the idea that anyone can be a virtual witness to this fact, even though he has no visual proof of it being true.

Rav Feinstein concludes that although this is the halachah, it is proper for a baal nefesh, a conscientious person, to act stringently and drink only milk that was supervised by a Jew (see also Chazon Ish, Yoreh Dei’ah 41:4). Nevertheless, in his own household in the United States, he allowed the use of non-cholov Yisrael milk, although he did not drink it himself.

The Coining of a Phrase

Rav Feinstein, in his responsum, sometimes refers to this type of milk as “stam chalav” – “unspecified or regular milk.” From that, the term “chalav stam” came into being. It cannot be called chalav akum, as chalav akum is forbidden and this is not. On the other hand, it also cannot be referred to as chalav Yisrael, for that term is reserved for milk that had Jewish supervision.

Rav Feinstein’s Ruling in Modern Times

There has been some discussion during the last several years whether Rav Moshe Feinstein’s lenient ruling concerning chalav stam is still applicable today. Government guidelines have changed in recent years, and the question is whether these changes affect the ruling. In the past, it was common for government agencies to verify at the dairies that the milk being processed was, indeed, cow’s milk. This was accomplished by testing fat or casein ratios in milk samples. Nowadays, however, these tests are generally not done. The milk is tested only for bacteria count and the presence of antibiotics. Additionally, while in former times it was common for dairies to have on-site farms and inspectors who would physically see the animals present, nowadays, this is no longer the case. This leaves us with the question as to what creates the given – the anan sehadi – that the chalav stam is, indeed, cow’s milk?

I found on the website of the Orthodox Union (OU) an article entitled, “Rav Moshe zt”l’s Heter of Chalav Stam Revisited,” which discusses this issue. What follows in italics are either direct quotes from the article or paraphrased sentences:

Currently, the government inspects all milk farms 2-6 times per year.

Governmental (state) farm inspection protocol specifically includes a provision that only cows are in the farms’ milking parlors and/or cow-yard. This provision (formulated in terms of swine) is part of the standard farm inspection form.

Government inspectors track the intake and output of all milk at dairies. Thus, the source farms are identified by the inspectors, and they must correlate with farms approved by the government.

Furthermore, the OU was told by state farm inspectors that they have never encountered horses, pigs or other livestock (besides cows) on dairy farms, and that were they to do so, they would immediately report it as part of their responsibilities.

In light of this current state of affairs, the farms are indeed uniformly inspected for non-kosher animals, and the dairy plants’ inspectors work with the farm inspectors’ data. Rav Yisrael Belsky ruled that the heter of chalav stam applies for those who wish to rely on it, albeit based principally on farm inspections rather than on dairy inspections. The correlation of data between the farm and dairy inspections extends the farm inspections’ efficacy to the dairies, and therefore retains its permissibility.

The Lesson of Chalav Akum

Boruch Hashem, most religious Jews today live in countries where chalav akum is not an issue. If one wishes to rely on the ruling of Rav Moshe Feinstein and use chalav stam, most Westernized countries have some type of government regulation on the milk. It should be noted, however, that prior to traveling, an individual should inquire ahead of time from experts in the kashrus field regarding the milk sold in those locales. For example, in many countries, camel’s milk is used in coffee interchangeably with cow’s milk.

And, if one wants to be stringent and drink chalav Yisrael, that is also readily available in the majority of situations. So, the question that remains for us is what lesson can we learn from the concept of refraining from drinking chalav akum.

One possible idea is that, too often, many people will say, regarding a particular food item, “What could be wrong with…?” The injunction against chalav akum is put in place to get us to think differently, as one could also say, “What could be wrong with milk?” Chazal are telling us: “Think again! Even the simplest food item could have kashrus issues! Be careful what you eat!”

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