Eating Dairy Meals in Unsupervised Restaurants

Eating Dairy Meals in Unsupervised Restaurants
Rabbi Barry Leff
May 12, 2004
21 Iyar 5764

Question:  Is it permissible to eat hot dairy meals in restaurants lacking rabbinic supervision?  A very high percentage of observant Conservative Jews, many Conservative rabbis among them, eat hot dairy meals in unsupervised restaurants.   Are they violating halakhah (Jewish law)?”

Response:  Eating hot dairy meals in unsupervised restaurants is a practice that would be very difficult, if not impossible, to justify within a traditional understanding of the laws of kashrut.  For example, a cheese pizza will typically be cooked in the same oven, and the same time, as other pizzas that contain treif (non-kosher) ingredients.  There are two principles that relate to cooking permitted foods and non-permitted foods in the same oven that are relevant:
 

--  Rei’akh (smell or aroma) is the principle that the aroma of a non-permitted food can render permitted foods not kosher.  The commentators argue about whether smell has substance or not, and we could reasonably rely on the opinion of the Rambam that smell is not significant.[1] 

-- Zei’ah (steam) is the principle that steam that rises from liquid non-kosher foods cooked in an oven can rise and render forbidden other foods in the same oven.  The vast majority of contemporary poskim (rabbis who rule on halachic issues) go with the opinion expressed in the Shulhan Arukh that steam IS significant, and can render food items unkosher.[2]  According to this majority view, a cheese pizza cooked in the same oven as a non-kosher meat pizza would not be kosher.  There are occasional minority opinions, such as one in Mishkanot Yakov that says steam is NOT significant,[3] but we have to acknowledge that this would be following a very minority, non-mainstream opinion. 

 

Furthermore, cooking a cheese pizza in a pan that had been used to cook a treif pizza is forbidden by the traditional sources.[4]   There is a principle that says we assume that the pots and pans of a non-Jew have NOT been used the same day (are not ben yomo), and therefore any taste they would transfer is tam lifgam, a disgusting taste, and they would not render the food forbidden.[5]  However, as a practical matter, we know that this is not the case today, so it would not be reasonable to rely on this leniency.

This question of whether it is permitted to eat dairy meals in restaurants that are not under rabbinic supervision was first addressed by Dr. Max Arzt in 1940,[6] who ruled that it is permissible to eat broiled fish and cooked vegetables in non-kosher restaurants.  In 1940 the Committee on Jewish Law and Standards (CJLS) ruled that no general permission could be given to follow the Arzt teshuvah (Jewish legal opinion); it was decided that the teshuvah could only be followed in case of emergency.[7]  The matter was reconsidered in 1952; the report of the CJLS from 1952 states: “…the committee went on record with the opinion that broiled fish dinners in non-Jewish eating places (providing, of course, that the fish meets the requirements of fins and scales), shall not be construed as a violation of the dietary laws.”[8]  The report goes on to state that “a complete responsum is now being drawn up on the subject and will be presented to the next convention.” 

That complete responsum apparently was never completed.  In 1967 Dr. Phillip Sigal compiled a summary of the statements and rulings in the archives and minutes of the CJLS on the topic.  In his summary, Dr. Sigal showed that there was some controversy surrounding the 1952 decision of the CJLS which continued to his day.  In his closing statement he said “It is the recommendation of the compiler of this summary that the whole question of kashrut in the American Jewish Community be studied and evaluated and a comprehensive teshuvah prepared for the committee’s consideration.” 

Since that time, minhag (custom) has gotten ahead of halakhah (law).  A survey of North American Conservative rabbis was conducted in the fall of 2003.  With over 110 responses, which gives the survey a very high confidence level,[9] 71% of the rabbis who answered eat hot dairy meals in restaurants that do not have kosher supervision.  Another 4% of the respondents follow the Arzt teshuvah and only eat broiled fish and steamed vegetables in non-supervised restaurants.  92% of the respondents eat hot dairy meals in restaurants that are 100% vegetarian, and 90% will eat cold foods in non-supervised restaurants.  Only 4% of the respondents ONLY eat in restaurants that are under supervision. 

In addition to the fact that a substantial majority of observant Conservative Jews appear to have gone beyond the heter (permission) of the Arzt teshuvah in their practice, there are some concerns with the Arzt teshuvah, as pointed out in a critique by Rabbi Abraham J. Ehrlich in 1963.[10]  Dr. Arzt based a number of the conclusions of his teshuvah on certain assumptions as to how food is prepared in non-kosher restaurants.  Rabbi Ehrlich discussed the issue with congregants who had kosher homes, but owned non-kosher restaurants.  His congregants concluded that Dr. Arzt’s assumptions regarding how thoroughly grills are cleaned between cooking meat and cooking fish, etc., were overly optimistic.

Fifty years after the last ruling of the Law Committee on this issue, the question of eating non-dairy meals in non-supervised restaurants is still controversial.  However, as difficult as it is, we must address this issue if halakhah is to remain a vital force in guiding the behavior of Conservative Jews.  Observant Conservative Jews, rabbis and lay people alike, are right to wonder why such a large discrepancy between the Conservative movement’s official halakhic position and the actual practices of the observant community has not been addressed.

In considering this issue, there are three possible responses we could take as a community.  1) We could choose to revisit the Arzt teshuvah and try to determine what is permissible within a traditional understanding of the laws of kashrut, and encourage people to follow it;  2) we could choose to say nothing, because to issue a teshuvah stricter than what people are willing to live with would reduce the relevancy of halakhah in the eyes of many; or, 3) we can take the changing custom and practice of the observant community into account in writing a responsum that acknowledges current practice.

The first option, revisiting the Arzt teshuvah, is problematical.  Most people are unlikely to change their practice simply because a teshuvah comes out that reiterates or is even more stringent than a teshuvah they are not currently following.  Thus, re-stating the Artz teshuvah, or making it more stringent, is likely to make only more glaring the divide between official halakhah and actual practice.

Relative to the second option, to say nothing, there are those who would say that it is acceptable that the legal position is stricter than actual practice—it gives people a goal to strive for.  Furthermore, as Joel Roth describes, it is better to keep silent than to try and enforce a change in custom that people will ignore: it undermines authority of the system.  It is better that the sages give silent sanction, because the result of persistent attempts to abrogate the custom would be the willful violation by the people of a clear rabbinic statement outlawing the custom.[11]  To that position we respond that this is too important a part of people’s daily lives to ignore.  This is not a fine point of law—it is something that Jews encounter on a daily basis. 

This teshuvah takes the third approach, to acknowledge current practice of the community of observant Conservative Jews as the basis for the response.  There are those who would say this is a dangerous path we are on, citing Rashbash: “for if we would abrogate a prohibition because of a custom, all prohibitions would be abrogated one by one, and the Torah would become null and void, God forbid.”[12]  It is sad but true that we cannot go by the custom of the majority of our congregants, because we truly would have nothing left. 

It needs to be understood that we are talking about a particular community: the community of observant Conservative Jews.  A substantial majority of congregants in Conservative synagogues do not keep kosher at all or otherwise observe the commandments.  It is not their behavior that is being taken into account in this teshuvah.  Rather, we are concerned with the behavior of the observant community—people who keep kosher and observe the Sabbath, which symbolizes a commitment to understanding one’s self as commanded to obey halakhah.

Solomon Schechter presented the idea of “Catholic Israel,” his translation for c’lal Yisrael, as the living body which is the center of authority.  Schechter said that “This living body, however is not represented by any section of the nation, or any corporate priesthood, or Rabbihood, but by the collective conscience of Catholic Israel as embodied in the Universal Synagogue.”[13]  This teshuvah follows the reinterpretation of Robert Gordis, as quoted by Dorff—that we consider “only the practices of Jews who try to observe Jewish law in making our decisions.”[14]   

It is not only un-observant people who have taken up the custom of eating out: it is a very substantial percentage of our most committed and dedicated people, including many rabbis.  The danger that accepting the leniencies in this responsa will lead people to becoming more lax in observing other mitzvot seems small compared with the benefit that will accrue from our committed people seeing that halakhah can adapt to the changing times and practices.

The time for wrestling with this issue is long overdue, and this responsum is offered in an attempt to reconcile practice and halakhah.  We believe that a seemingly-radical change in halakhah is preferable to allowing the current dissonance between law and practice to continue indefinitely. 

Thus, this responsum will in the main address three questions:

1)      What is forbidden regarding eating forbidden substances on a Torahitic level?  On a rabbinic level?

2)      Should we apply the principles of ein gozrin gezeirah al hatzibbur aleh im cain rov hatzibbor yaholin la’amod ba, we do not make a decree on the public unless the majority of the public can abide by it, and minhag mevvatal halakhah, custom can nullify law, to this situation?

3)      As a practical matter, how can an observant person meet the standards of kashrut suggested in this responsum when eating in unsupervised restaurants?

1. Forbidden Substances

Activities that are prohibited in Jewish practice can be found to be forbidden d’oraita, biblically, or d’rabanan, rabbinically.  In many places the sages emphasize that rabbinic ordinances should be treated with the same level of seriousness as biblical ordinances.  The only significant difference between things that are prohibited d’oraita and things that are prohibited d’rabbanan is in the ease with which later rabbis can modify the prohibition. 

In the Conservative movement we remain very cautious about making rulings that remove what are understood to be biblical prohibitions.  We take a somewhat more aggressive posture regarding rabbinic prohibitions, especially “fences” that were put in place to avoid a biblical violation, as we generally assert that it is important for rabbinic decrees and enactments to be appropriate to the time and place we live in.  For instance, most Conservative rabbis would not agree with the traditional “fence” prohibition against someone who is not seriously ill consuming medicine on the Sabbath for fear that it will lead a person to grinding his own medicine, an activity that is forbidden.[15]  Refusing to remove such fences, in fact, leads the Orthodox to some seemingly illogical conclusions: most Orthodox authorities would hold that it is forbidden for a person with a mild headache to take an aspirin pill because it is “medicine,” but some would hold that it is acceptable for a healthy person to take the same aspirin to prevent a heart attack because it is not then “medicine” but rather something healthy people consume.[16]  Most Conservative authorities would probably prefer to see the prohibition against people who are only mildly ill taking medicine as irrelevant today, since very few people grind their own medicines.  Therefore, this prohibition would seem to have outlived its usefulness, and can be withdrawn.[17]  This liberal approach toward fences that are no longer relevant is not a novelty of the Conservative movement: Rabbi Moses Isserles said much the same thing in an opinion he brought in a commentary overturning a ban on clapping and dancing on Shabbat.[18]

The first question we will address, then, is to differentiate between foods that are forbidden Biblically, foods that are forbidden rabbinically, and rabbinic fences.

This teshuvah only concerns itself with the laws relating to forbidden substances.  The laws of mixing meat and dairy are more stringent than the laws regarding forbidden substances.  However, as explained in tractate Chullin, the laws regarding separation of meat and dairy are only applicable if the meat is kosher.  They do not apply to mixtures of non-kosher meat and dairy.[19]

Odd as it may sound, the only thing CLEARLY forbidden d’oraita, by all authorities without argument, is a mixture that contains a majority of the forbidden substance.  The basic discussion of the matter in the Talmud is found in the Bavli Chullin 97b-99a.  The stam gemara (unattributed voice of the Talmud) presents the opinion that the Torah forbids eating a mixture the majority of which is a forbidden food.[20]  According to the Gemara in Chullin, the rabbis imposed a quantity of 1:60, or some say 1:100 as a stringency.[21]  Elsewhere (in Avodah Zara) the Gemara rules that 1/60^th is the rule for all things that are forbidden by the Torah.[22]

The argument in the Gemara centers around whether or not, rabbinically, what is forbidden is a taste of something forbidden, tam k’ikar (the taste is the essence),or whether bitul b’shishim (nullification in 60 times the volume) applies even if a forbidden taste remains.  According to Rashi, tam k’ikar only applies to kodoshim (food set aside for use in the Temple, such as sacrificial offerings); to ordinary, unconsecrated food, bitul b’shishim applies, even if a forbidden taste remains.[23]  Tosafot is not content with this, and claims that despite the words on the page, what Rashi MEANS is “a shadow of a taste.”[24]  Most later authorities assume tam k’ikar forbids food at least rabbinically, if not biblically,[25] in mixtures of unlike substances, which is the relevant case in eating dairy meals in unsupervised restaurants. 

All of the authorities in the Gemara, as well as later authorities, would agree that if the substance you are eating has no forbidden taste AND the volume of the forbidden substance is less than 1/60 (1/100 according to some opinions in Chullin, although 1/60 is accepted for all forbidden substances in Avodah Zarah[26]) the food is permitted both Biblically and rabbinically.  It follows, therefore, that the whole complex structure of kashrut as we know it, with principles like zei’ah (steam), harif (spicy flavors transmit flavors more effectively than non-spicy flavors), notein tam lifgam (gives a disgusting taste), kelim ben yomo (vessels that have been used within 24 hours), etc., exists as gezeirot (fences) to prevent us from violating tam k’ikar, which if we follow Rashi is in itself a rabbinic stringency.  The complex rules are certainly not needed to prevent what all would agree is a biblical violation, which only requires avoiding a majority of forbidden substance, or at most from violating bitul b’shishim.  The complex of rules regarding kashrut was put in place to prevent people from violating the rabbinic stringency of treating tam k’ikar as applicable to ordinary foods.

To summarize, if we can avoid both a taste of a forbidden substance and consuming more than 1/60 of a forbidden substance, we are not eating anything that is not kosher on either a biblical or rabbinic level.

However, what are we to do with the gezeirot intended to help us comply with the above prohibitions?

 2. Ein gozrin gezeirah al hatzibbur aleh im cain rov tzibbor yaholin la’amod ba

(We do not impose a fence on the public unless the majority are able to abide by it)

 The traditional structure of kashrut includes many gezeirot which are in place to prevent the possibility of tasting a forbidden substance.  The most widely known is the requirement to use separate dishes for meat and dairy.  It is thus an assumption of the system of kashrut that pots, dishes, and utensils absorb food and tastes and exude them back out, possibly resulting in tasting a forbidden combination.  We can see that the rabbis concern was with the absorption of the taste of the food being cooked in the pot from the discussion at the end of Avodah Zarah about how a Gentile’s pots are forbidden from use because of the flavors they might have absorbed.  The Gemara in fact concludes that if the pot had not been used in 24 hours, it is permitted to use it, even without washing.  There is an implication that if the pot is washed you don’t have to wait 24 hours—it says that the rabbis decreed the pot has to be washed whether or not 24 hours have passed because of people who don’t wait 24 hours.[27]  At one time, not everyone was so stringent about the treatment of meat and dairy dishes; in Beit Yosef, Joseph Karo expresses surprise that Baal Haitur allowed cooking dairy in a pot that had been used to cook meat, even the same day.[28]

            In the 1500 years that have transpired since the end of the rabbinic period, methods of food preparation have changed dramatically.  In developed countries with stringent health regulations and industrial strength dishwashers, we can be reasonably confident that pots, pans, and dishes (unlike grills) will not impart forbidden tastes.  Modern cookware and plates are non-porous, and going through an industrial dishwasher would certainly remove tastes as effectively as kashering in boiling water.  Any small particles that survived a trip through a dishwasher would certainly meet most people’s definition of a tam lifgam, a disgusting taste, which cannot render something unkosher.  Thus, many of the fences relating to dishes might not be relevant today.  This may be what has led many observant Jews to overlook these fences in their eating out habits. 

One of the fundamental reasons chazal (the rabbis) put in place many of the dietary restrictions was a conscious effort to minimize contact between Jews and non-Jews.  In the Babylonian Talmud, tractate Avodah Zarah, for example, there is a discussion about the bread of non-Jews, and how the rabbis tried to ban it out of a concern that eating their bread could lead to intermarriage.[29]  Conservative Judaism has rejected this approach to avoiding the problem of intermarriage.  These days, as Rabbi Dorff points out, few of those who intermarry keep kosher at all.[30]  Continuing to ban food cooked by non-Jews will not make any difference whatsoever in the intermarriage rate.

Furthermore, we are active and engaged in the secular communities around us.  Many of us live in places with no kosher restaurants.  If we are to have normal relations with our neighbors, we need to be able to break bread with them in places other than our own homes.  As Rabbi Dorff wrote, “In keeping with our acceptance of the conditions of modernity, we in the Conservative movement would undoubtedly hold that, short of mixed marriage, Jews should have social and business contact with non-Jews.”[31]

There are other principles, like harif (sharp tastes transmit flavors more effectively) that might still be relevant.  Some principles, like whether dishwashers really nullify any absorption might be considered arguable.  At least when it comes to eating out, however, a majority of the observant Conservative Jewish population is no longer willing to follow those fences, regardless of whether or not they might still be applicable today.  Therefore, rather than attempt to justify a change in each individual “fence” that has been traditionally enacted, this teshuvah relies on the change in practice as justifying a change in halakhah.  This teshuvah will NOT address each individual fence and argue it is irrelevant.  It does not matter whether the fence still is potentially relevant when the public does not accept it.

There are two halakhic principles which could in theory be used to justify a new ruling with respect to kashrut: ein gozrin gezeirah al tzibbur aleh im cain rov hatzibbor yaholin la’amod ba (We do not impose a fence on the public unless the majority are able to abide by it) or minhag mevattal halakhah (custom nullifies law). 

·        Ein gozrin is applied in situations where a rabbinic “fence” has been mandated which the public is not following.

·        Minhag mevattal halakhah is a principle that can be applied when the custom of the people overrules a biblically mandated action. 

This teshuvah is NOT going to apply minhag mevattel halakhah because it is not attempting to permit anything which is forbidden d’oraita.  Rather, what this teshuvah is addressing is the series of fences that the sages have put around the dietary laws to distance us from the possibility of eating something forbidden.  Therefore, ein gozrin is the relevant principle for our discussion.

The fundamental principle of ein gozrin is found in the Bavli, Avodah Zarah 36b, in a discussion about how the sages forbid the use of heathen oil, yet the people refused to abide by it.  They accordingly relied upon the dictum of Rabban Shimon b. Gamliel and R. Eliezer b. Zadok who declared: “We make no decree upon the community unless the majority are able to abide by it.” R. Adda b. Ahaba said: “What Scriptural verse supports this rule? ‘You are cursed with the curse; for you rob Me, even this whole nation[32]’” — i.e., when the whole nation has accepted an ordinance, then the curse which is the penalty of its infraction does apply, otherwise it does not.

            The current situation is different.  One could argue that ein gozrin would only apply in the situation where the sages are imposing a NEW prohibition, and the sages who try to promulgate a new prohibition would retract it if people refuse to accept it; more or less giving the people the ability to ratify new fences.  In our current situation it would appear that the community accepted the gezeirah generations ago, so some would argue that authorities today do not have the power to uproot it, because they are not the ones who put it in place.

There is a general principle that a court cannot overrule the decree of an earlier court unless it is greater in wisdom and in number.  However, custom can give a later court the power to overrule the earlier court: Rambam says "If they enacted [a decree] and they thought that it had spread throughout all of Israel and the matter stood that way for many years and then, after a long time, another court checked throughout Israel and saw that this decree had not spread throughout all of Israel, it may annul [the decree], even if it was a lesser court than the first in wisdom and numbers."[33]  

            To accept the concept that we cannot remove a precedent that earlier generations put in place would put us in an untenable position in evolving halakhah.  We would be left with a system that could only become more conservative and strict over time, never more lenient.  If halakhah is to be a living system that allows us to adapt living a committed Jewish life to living in the modern world, we need be willing to overturn accepted precedents when there is a strong case to do so.  As Rabbi Joel Roth puts it, “The authority of the codes reflects more than anything else their acceptance as the repositories of the recorded and reasoned weight of precedent.  As such, and consonant with the doctrine of precedent, they ‘will probably be followed by the courts.’  But circumstances and considerations that are sufficient to warrant overturning an accepted precedent can warrant overturning a decision recorded in the Shulhan Arukh too.  In the final analysis, only the systemic principle Ein lo la-dayyan ella mah she-einav ro’ot (the judge should rely on what his eyes see) stands as the ultimate judicial guide.”[34]

            The judge needs to go after what his eyes see.  The question is not whether we have the ability to overturn precedent, but whether we SHOULD engage in such a wide-ranging overturning of well established precedent and custom.  Indeed, such a change should only be made cautiously—which is perhaps one reason why despite widespread changes in the eating habits of our community, the issue has not been addressed in a formal way since 1952.  Any posek (Jewish legal authority) who has a shred of yirat shamayim (fear of heaven) would feel a great sense of trepidation regarding suggesting that behavior that goes against the long accepted norms of kashrut is acceptable.  However, the longer we go without addressing the question of people eating out, the more damage we do to the place of halakhah as a living system in the minds of observant Conservative Jews.  It very well may be that the custom of eating dairy meals out has become a custom because a generation of Jews mistakenly thought the Arzt teshuvah permitted it.  Prior to going to rabbinical school, the author was an active, committed Conservative Jew, who served on the board of a synagogue and as chairman of its ritual committee, yet he was not aware that it was in theory not permitted to eat dairy meals in non-supervised restaurants.  As Rabbi Roth points out, quoting the Rosh, the strength of a custom is greatest when people think they are doing it in compliance with a law, even if the source of the law cannot be found.[35]

            We are facing a situation that is described in Emet Ve-Emunah, the Statement of Principles of Conservative Judaism: “Occasionally the integrity of the law must be maintained by adjusting it to conform to contemporary practice among observant Jews.  Every legal system from time to time must adjust what is on the books to be in line with actual practice if the law is to be taken seriously as a guide to conduct.”[36]  This principle could be described as one of the foundational principles of Conservative Judaism.  As Zacharias Frankel put it, “When the people allows certain practices to fall into disuse, then the practices cease to exist.  There is in such cases no danger for faith.”[37]

            As Neil Gilman describes it, “It is the community that decides for itself what will be considered mitzvah and it does so on its own authority.  The assumption, of course, is that this process is taken seriously, not casually.  It is clearly not taken this way by the entire community; substantial numbers of Jews have no interest in any of it.  But many Jew do.  In the final analysis, all we can do is speak to and for them.”[38]  A substantial portion of that community—the community that takes mitzvah seriously—has clearly spoken regarding their attitudes toward eating out and the related gezeirot. 

            We acknowledge that the Conservative approach to halakhah may often find itself in a difficult position relative to how we handle rabbinic fences.  If we are willing to remove some fences because they are no longer relevant, how do we decide which fences to remove and which fences to keep?  For example, the prohibition on eating chicken and milk together is generally considered a rabbinic ordinance.[39]  Why not change that one too, while we are at it?  Our response is that in balancing tradition and change, our default position is to stay with tradition unless there is a sufficiently strong reason to change.  Notwithstanding those who crave Chicken Parmigiana, the case for changing the rabbinic prohibition on fowl and dairy together is NOT as compelling as the case for eating out.  Also, relative to the logic followed in this teshuvah, the majority of observant Conservative Jews have NOT abandoned or rejected this gezeira of treating chicken as fleishig, therefore the same logic does not follow.  How aggressive to be with removing or altering fences is clearly a matter of judgment, and people of integrity may differ on where to “draw the line.”

            The truth is, the halakhic system is more dynamic and flexible than many contemporary poskim would admit.  Mordecai Waxman describes three main school of thought in the Conservative movement, which he describes as Right, Center, and Left.  Regarding the relationship of the Center group to halakhah, he writes “Traditional Jewish law, however, is regarded by the Center group as itself sufficiently flexible and latitudinarian to permit, within its own frame, whatever indispensable changes the needs of the times call for.  The fact that so far little has been achieved by the process of interpretation is charged up to the inertia of those who should have performed the task of interpretations rather than to any obstacle inherent in the tradition itself.  Life, however, cannot wait.”[40]  Life cannot wait—it is incumbent upon us to use the tools at our disposal to adapt halakhah to the “indispensable changes the needs of the times call for.”  In fact, on the same page, Waxman cites as an example that while “most have two sets of dishes, few do not.  No one has any scruples about eating fish and milk foods in hotels and restaurants.”[41]  Waxman made this statement in 1958; forty-six years later, this teshuvah is simply acknowledging as normative behavior that which has been accepted by observant Conservative Jews for a long time.

            The tension between those who say we can adapt halakhah to changing circumstances, and those who would insist on not deviating from law codes like the Shulhan Arukh is not new.  In the 17^th century, the Penei Yohoshua, Rabbi Joshua Hoeschel ben Joseph of Cracow, wrote that to abdicate one’s rights to make decisions contrary to the Shulhan Arukh “negates the systemic principles that empower the sages of every generation to render authentic and authoritative decisions as they deem appropriate and necessary and any sage audacious enough to exercise his traditional rights may be assured that his efforts, even if absolutely defensible, will be vilified and rejected.”[42] 

 3. Practical issues

As was stated earlier, if you can avoid eating anything that has more than 1/60 (bitul b’shishim) by volume of a forbidden substance, or that has a forbidden taste, you are not eating anything that is not kosher.

The bitul b’shishim rule is clearly the easier of the two to meet.  If you go to a restaurant and order your meal carefully specifying that the meal must not contain any meat substances, asking about potentially troublesome ingredients such as chicken stock in sauce bases, we can be reasonably confident that the food will not contain more than 1/60 of a forbidden substance.  But will it acquire a forbidden taste?

The answer is “it depends.”  Most restaurants would not grill a piece of fish directly on a grill that had just been used for meat without a very thorough cleaning: it would almost certainly impart an unfavorable flavor.  On the other hand, some McDonald’s restaurants serve veggie burgers, but since they are “meat flavored” anyway, they cook them on the same grill with their burgers—and bacon cheeseburgers!  Logic would dictate that in such a circumstance there is a serious danger of the food absorbing a forbidden taste, and one should NOT eat such a veggie burger.

Tam k’ikar (the taste is the essential thing) as a standard has a major problem: people’s taste buds differ.  Is there a “golden standard,” a particular level of sensitivity, which should be applied?  The discussion in the Bavli Chullin 97a implies the standard is a gentile cook.  The discussion in the Talmud says that if you dropped a piece of meat into a dairy dish, and you were not sure if it had imparted a meat taste to the mixture, you should find a gentile cook and have him taste it.[43]  If a gentile cook can detect the taste of the forbidden substance, it is forbidden for Jews to eat it.  Since gentile cooks are not always available, the rabbis ruled that we can rely on bitul b’shishim in those cases.  Therefore, the argument about  which takes priority, bitul b’shishim or  tam k’ikar becomes circular—if you do not have a gentile cook around to taste it, you go back to relying on bitul b’shishim.

This may help explain why eating out in unsupervised restaurants has become so common among the otherwise-observant.  When I discussed this issue with a colleague who eats dairy meals in unsupervised restaurants, he shrugged his shoulders and said ”it’s all bitul b’shishim anyway.”  There is, in fact, some halakhic justification for this seemingly-offhand response.

Some would argue that we seem to be relying on bitul b’shishim l’chatchila (up front, ahead of time), which is explicitly prohibited by the Shulhan Arukh.[44]  Traditionally, it is only permitted to rely on bitul b’shishim in the case of an “accidental” mixing.  It would be forbidden to intentionally put even a very small amount of a forbidden substance into a much larger volume of permitted substance, relying on bitul b’shishim.  The response to this charge is that as long as the consumer takes care to inquire about the ingredients in the food and the preparation of the food with reasonable diligence, any forbidden substance in the food is both undesired and unintended, and therefore is present in a b’dievad (after the fact) status—i.e., it is accidental—which all authorities agree is permissible.

            Those dining in a non-supervised restaurant needs to take care to ask enough questions to satisfy themselves that they are not eating anything forbidden.  This means asking about ingredients—especially inquiring after soup bases, sauce bases, flavorings, etc.  Some dishes that sound vegetarian, e.g., risotto with mushrooms, might turn out to have been cooked with chicken stock.  In addition to asking about ingredients, it may mean inquiring about method of preparation; as mentioned above, a veggie burger prepared on a meat grill could possibly pick up the taste of the meat.

            The consumer also has to know that eating out in this fashion does have some risks: for example Taco Bell bean burritos are 100% vegetarian and therefore would be kosher under this teshuvah; however, mistakes can occur, as attested to by a famous case a few years ago when a Hindu sued Taco Bell for serving him a beef burrito (instead of the bean one he ordered), which necessitated his making a trip to India for ritual purification in the Ganges.[45]  The case was settled out of court.  Buyer beware! 

Considering the risks inherent in eating in unsupervised restaurants, there is a hierarchy of preferred behavior when it comes to eating out:

1)      In general, it is preferable to eat in restaurants that are under kosher supervision.  This gives you the greatest chance of not eating anything treif, however, accidents could certainly happen even in a restaurant under supervision.  Said accidents would be very rare.  It is also a statement of communal solidarity to support kosher restaurants.  People who live in small towns should not complain about a shortage of kosher restaurants if they fail to patronize the ones that do exist.

2)      The next best option would be to eat in a strictly vegetarian restaurant where there would be no concern of a significant quantity of non-kosher ingredients being introduced into the food, and the dishes, ovens, pots and pans are never used to prepare products containing meat.

3)      Traditionally, cold foods and vessels are not considered to transmit taste as effectively as hot foods and vessels.  Therefore, third choice would be to eat simple cold foods, like salads, or sushi, in restaurants that also serve treif foods, where the chance of introducing a forbidden taste is lower. 

4)      Eating other kinds of hot dairy meals in unsupervised restaurants is permissible, but the burden is on the diner to ascertain that the food he is eating is, in fact, kosher based on the standards set forth in this responsum.

             This teshuvah does NOT propose applying the same principles for eating at home as for eating out.  Many Conservative Jews who eat dairy meals out continue to maintain their homes according to the traditional guidelines.  This is praiseworthy, to be encouraged as part of creating a Jewish home.  Furthermore, maintaining the traditional practices at home helps foster Jewish unity as more people will be comfortable eating in each other’s homes.

 Conclusion

            It is possible to eat dairy meals in unsupervised restaurants without violating the dietary laws.  The diner needs to take precautions and inquire about the ingredients and the method of preparation.  If possible it is preferable to eat in vegetarian restaurants, and better still to eat in restaurants that are under supervision.  Hamachmir tavo alav bracha (the stringent bring blessing upon themselves).