The Kashrut of Vegetables

The following responsum is reprinted from Tomeikh KaHalakhah volume 3.  Tomeikh KaHalakhah is UTJ’s series of volumes of responsa (teshuvot) promulgated by the Union For Traditional Judaism’s Panel of Halakhic Inquiry.

The Torah prohibits us from eating insects and other tiny creatures (Lev. 11:41). The exception to this rule are those insects and other tiny creatures (tola’im) that have always been contained within fruits and vegetables after they have been picked (talush) and have never left the produce. The rabbis judged that they are permitted to be eaten with the fruit or vegetable of which they are considered to be a part (Hullin 67a-b). (Of course, this seems to be based on the now discredited biological theory of spontaneous generation, viz., these creatures are produced by the decaying produce itself rather than being the result of external animal generation. Nevertheless, in ritual matters, we follow tradition irrespective of what antiquated science it might be assuming. See Maimonides, Hilkhot Shehitah, 10.12; cf. Hilkhot Rotseah, 2.8). However, since the original rule is a scriptural prohibition, where there is any doubt (safek) as to whether a creature has always been contained within the produce or not, one is to refrain from eating the produce until the creature has been removed (Maimonides, Hilkhot Ma’akhalot Asurot, 2.15; Shulhan Arukh, Yoreh De’ah 84:7). This is based on the principle that in cases of doubt about a Scriptural norm, the stringent option is to be followed (see Beitzah 3b and parallels). Furthermore, Rabbi Avraham Danzig, basing himself on Nahmanides’ commentary on the Torah (Lev. 11:11), ruled that flying insects, as distinct from worms, should never be assumed to have always been contained in the produce wherein they are found (Hokhmat Adam, 38:4).

Nevertheless, even assuming that there are such prohibited creatures in all produce we use (although it may be suspected that due to the widespread use of pesticides in agriculture, there are far fewer such creatures in our produce than was the case in the produce of our ancestors), the standard procedure has been to examine the produce carefully so as to be able to remove these creatures before eating the produce. Rabbi Yehi’el Mikhel Epstein noted that modern science has taught us that every time we breathe air or drink water we are ingesting numerous microscopic creatures (Arukh Ha-Shulhan, Yoreh De’ah, 84:36). But basing himself on the principle that the Torah does not require angelic perception in the observance of the commandments, but only ordinary human sensibility (see Kiddushin 54a and parallels; cf. Shabbat 88b-89a), he writes that “it is only what is normally visible to the naked eye by sunlight, however tiny, that is considered to be a fully prohibited creature (sheretz gamur).” (See similarly, Rabbi Yisrael Lipschutz, Tiferet Yisrael, Avodah Zarah, ch. 2, Boaz n. 3, who states that Halakhah does not recognize things that require a microscope to be seen. He forbids the consumption of a particular fish whose scales could be seen only under a microscope. See also Rabbi Moshe Feinstein, Responsa Iggerot Moshe, Yoreh De’ah 2:146, who says that we denigrate earlier generations when we claim that we can perform mitzvot with greater accuracy by using a microscope; see also ibid. 3:120. He also applies this ruling to searching for insects on food, as does Rabbi Avraham Danzig, Binat Adam, klal 38, se’if katan 34; Rabbi Shlomo Kluger, Responsa Tuv Ta’am Ve-Da’at, Tanina, Kuntres Aharon #53; and Rabbi Ovadiah Yosef, Responsa Yehaveh Da’at 6:47 and Responsa Yabi’a Omer, vol. 4, Yoreh De’ah #20. Rabbi Yosef also quotes Responsa Even Yekara, vol. 2 #33, which rules that it is not forbidden to bring a microfilm copy of a Tanakh into a bathroom based on similar reasoning. Rabbi Yosef Mashash ruled in Responsa Mayyim Hayyim, par. 259, that an etrog that has been examined and found without blemish, but that under a magnifying glass is shown to have several punctures, is strictly kosher.)

The question is to what extent one must examine produce before eating it. Can such examination be done by ordinary persons, or does it require experts working under rabbinical supervision? Here most authorities rely on what is local practice. Thus, Rabbi Shabbtai Ha-Kohen notes that although Rabbi Moshe Isserles and Rabbi Shlomo Luria were exceptionally punctilious in the examination of certain vegetables, ordinary persons (ha-olam) were less so and that such persons’ practice can be justified. As is frequently the case, those who are meticulous are praised, but those who follow customary standards are not judged to be in violation of the law (Shakh on Shulhan Arukh, Yoreh De’ah, 84:8, n.22). Rabbi David Ha-Levi writes that although Rabbi Shlomo Luria suggested that some vegetables require examination beyond the capability of ordinary persons (specifically, women), Rabbi Moshe Isserles wrote that the custom is to be more lenient. Rabbi Ha-Levi adds there are a number of formal halakhic arguments that could be made to defend this popular leniency (Taz on Shulhan Arukh, Yoreh De’ah 84:9, n. 14). Furthermore, even those authorities who were exceptionally punctilious about the examination of leafy vegetables (yerakot) did not suggest that ordinary persons could not be relied on for such examination. Thus Rabbi Yehi’el Mikhel Epstein, basing himself on Rabbi Avraham Danzig (Hokhmat Adam, 38:25), wrote, “Indeed the custom throughout all Jewry is that any woman can examine legumes (ha-kitniyot), fruits (ha-perot), and leafy vegetables (ha-yerakot) and that we are to rely on them” (Arukh Ha-Shulhan, Yoreh De’ah, 84:81). Therefore, there is no good halakhic reason to depart from established Jewish custom, codified by so many of our greatest authorities (gedolim). Observant Jewish persons, who are usually in these matters observant Jewish women, should continue to carefully examine all vegetables for prohibited creatures and if they are found, they should wash the produce thoroughly, as their mothers and grandmothers have done before them.

Such new requirements for rabbinical supervision where none is called for are in effect reforms of standard Jewish practice (minhag). They can only serve to enrich the supervising rabbis at the expense of the general Jewish community, who pay higher prices for these “supervised” products. Consumers are, in effect, paying their salaries as well for the bureaucratic services of the agencies for which they work. Our sages, however, taught that “the Torah is concerned with saving money for the Jews” (see Nega’im 12.5; Hullin 56a; cf. Mo’ed Katan 27b and Keritut 8a). Furthermore, such requirements depart from the recognized practices of our sages and their disciples to be personally stringent with themselves but more lenient with the general public (see Beitzah 21b). Finally, one must assume that such rabbinical practices are designed to increase rabbinical power so as to make ordinary Jews less self-reliant than they have been heretofore. Contrary to this, however, our sages recognized many areas of serious halakhic import where the judgment of ordinary persons is to be accepted (see Tosefta Shabbat 2.10; Shabbat 32a-b; Y. Shabbat 2.7). Our sages warned against the exercise of authority (serarah) for personal aggrandizement (see Berakhot 27b-28a; also Y. Yoma 5.2 and Fraenkel, Korban Ha-Edah, s.v. she-lo). It ultimately leads to disrespect for the law itself.