Kosher

Timothy D. Lytton

• Publisher: Harvard University Press
• Year: 2013
• ISBN:
  9780674075252
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

Generating over $12 billion in annual sales, kosher food is big business. It is also an unheralded story of successful private-sector regulation in an era of growing public concern over the government's ability to ensure food safety. Kosher uncovers how independent certification agencies rescued American kosher supervision from fraud and corruption and turned it into a model of nongovernmental administration.Currently, a network of over three hundred private certifiers ensures the kosher status of food for over twelve million Americans, of whom only eight percent are religious Jews. But the system was not always so reliable. At the turn of the twentieth century, kosher meat production in the United States was notorious for scandals involving price-fixing, racketeering, and even murder. Reform finally came with the rise of independent kosher certification agencies which established uniform industry standards, rigorous professional training, and institutional checks and balances to prevent mistakes and misconduct.In overcoming many of the problems of insufficient resources and weak enforcement that hamper the government, private kosher certification holds important lessons for improving food regulation, Timothy Lytton argues. He views the popularity of kosher food as a response to a more general cultural anxiety about industrialization of the food supply. Like organic and locavore enthusiasts, a growing number of consumers see in rabbinic supervision a way to personalize today's vastly complex, globalized system of food production.

CHAPTER ONE

Rivalry and Racketeering

The Failures of Kosher Meat Supervision, 1850–1940

ONE 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 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 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 twenty-four 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 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-and-fro 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 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 seventy-two 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. 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 punishm...