By Judah A. Druck
Kosher food is serious business. The Torah contains a litany of laws and restrictions concerning the circumstances under which certain foods may be eaten, and thousands of years of rabbinic commentaries have further detailed and elaborated upon these dietary regulations. These discussions range from answering mundane questions of whether bugs are kosher (no), to more particular questions regarding the volume of non-kosher substances a kosher food item can have and still maintain its kosher status (1/60th), to the more bizarre question of how to properly slaughter a giraffe (it’s complicated). These commentaries, and commentaries on those commentaries, continue to this day, with more recent discussions covering topics such as the kosher status of lab-grown meat.
But kosher food is also serious business in the literal sense. The global kosher food industry currently exceeds $20 billion in annual sales, and is projected to grow to over $25 billion by 2026. These sales are driven not only by Jews, who make up a mere 0.18 percent of global population, but by Muslims maintaining Halal diets, Seventh-Day Adventists, and individuals who perceive kosher food as being healthier or higher quality than non-kosher alternatives. Indeed, over 40 percent of all packaged food in the United States is certified kosher.
Given the serious matters at issue—both theological and financial—it is unsurprising that consumers have sought judicial and legislative regulation of the kosher marketplace. Yet these requests implicate fundamental questions regarding the separation of synagogue and state, notwithstanding the secular concerns at issue. Minnesota’s own forays into the world of kashrut (kosher law) have resulted in fascinating judicial and legislative discussions regarding the role government should, and constitutionally can, play in upholding Biblical law. This article details these discussions, and how courts and legislators have struggled with the question explored since Moses: What is and is not kosher?
What is kosher? A primer
The complex rules of kashrut can be summarized as follows. First, according to the Torah, land animals must have split hooves and chew their cud (thus: cows in, pigs out), and must be killed in a specific way in order to be kosher. This form of kosher slaughter, known as shechita, involves severing the trachea and esophagus of the animal with a special blade in order to cause instantaneous death with no pain to the animal. Second, fish must have fins and scales (thus: no shellfish). Third, the Torah applies the principle of “everything which is not forbidden is allowed” to fowl, enumerating certain types of bird that are not kosher but permitting all others. Finally, based on the passage prohibiting the boiling of a kid in its mother’s milk, foods are categorized into “meat” and “dairy” products, which must be eaten separately (and even served on separate sets of dishes). Foods that fall into neither category (e.g., fruits, vegetables, eggs, nuts) are placed into a third neutral category called “pareve.”
These basic rules are subject to numerous qualifiers, exceptions, and customs. Chicken is categorized as “meat” despite ostensibly falling into a separate category from land animals. Many Jews wait after eating meat before eating dairy (ranging from one to six hours) but not between eating dairy and then meat. Sturgeon, which has fins and scales, is subject to contrary opinions from different Jewish sects because of the type of scales it has. And so on.
As with foods labeled “organic” or “vegan,” consumers have no ability to determine whether a certain food product is actually “kosher.” Thus, companies rely on third parties to certify that their food is kosher and has been prepared in a way that maintains its status as such (for example, by assuring that a meat product never comes into contact with dairy). These organizations and their rabbinic inspectors place symbols on food packaging to indicate that the food has been examined and is in fact kosher. There are hundreds of different certifying entities and corresponding kosher symbols, the largest being the Orthodox Union (which uses an “OU” symbol). Minnesota itself is home to two kosher certifications: Minnesota Kosher and MSP Kosher.
Of course, not all of these certifying agencies are treated equally, and whether a certification is sufficiently reliable is a constant source of debate (“two Jews, three opinions” goes the old joke). Consumers may reject a certification if they believe the standard applied was not sufficiently stringent. An Orthodox Jew may reject a certification given by a Conservative rabbi. More insular Jewish denominations may only accept—or “hold by”—the certifications given by their local authorities.
Thus, the question “Is it kosher?” does not always lend itself to a straightforward response. Kosher to whom? And, more importantly, how can a government regulate an industry with no objective measure for determining what has and has not been accurately labeled?
A sampling of kosher food certifications. The “Triangle K” symbol sparked litigation in both federal and state court over the meaning of “kosher.”
.jpg?sfvrsn=b34db5f9_0 "Kosher Symbols (Druck)")
Wallace v. ConAgra: The federal judiciary explores kashrut
Appropriately enough, the kosher status of Hebrew National hot dogs—a popular, well-recognized, and quintessentially American food product that “answers to a higher authority”—provided the first opportunity for Minnesota courts to confront this intra-faith debate over kashrut certification. The hot dogs are certified by Triangle K, a kosher agency whose reliability has long been a point of contention in the Jewish community, with some accepting the kashrut standards employed by its rabbis and others (particularly those within the Orthodox community) rejecting the certification outright.
This debate came to a head in Wallace v. ConAgra Foods,1 in which 11 consumers filed suit in Minnesota state court against ConAgra, the manufacturer of Hebrew National products. The plaintiffs argued that ConAgra falsely labeled its meat products as being “100% Kosher” despite failing to comply with a litany of “objective” kashrut requirements, including the proper inspection and slaughter of cattle. Plaintiffs alleged pecuniary damages as a result of the “premium price” paid for the inaccurately labeled kosher meat, and asserted causes of action for negligence, violation of state consumer protection laws, and breach of contract. Notably, plaintiffs did not name Triangle K itself as a defendant.
After removing the litigation to federal court, ConAgra moved to dismiss for lack of subject matter jurisdiction under the establishment clause and the free exercise clause of the First Amendment. Specifically, ConAgra argued that while plaintiffs’ suit was brought against a secular organization on ostensibly secular grounds in order to uphold “objective” standards, plaintiffs’ suit ultimately required a civil court to assess whether something was “kosher,” and in doing so resolve “differing rabbinical interpretations of kashrut”—here, by “evaluat[ing] the religious correctness of kosher determinations made by the rabbis of Triangle K.”
Judge Donovan Frank of the Federal District Court of Minnesota agreed. While expressing clear sympathy for plaintiffs and the “highly disconcerting” allegations within the complaint, Judge Frank explained that the determination of whether Hebrew National products were kosher was “intrinsically religious in nature,” and that any such inquiry would “necessarily intrude upon rabbinical religious autonomy.” In particular, the court highlighted that ConAgra itself did not make kosher determinations, but instead relied on Triangle K for its certification of Hebrew National products. Yet plaintiffs had not alleged that CongAgra misrepresented that its products were in fact certified by Triangle K. Thus, despite plaintiffs’ “tactical decision to leave Triangle K... out of the lawsuit,” their claims that the “kosher” designation was improper ultimately represented a challenge to “Triangle K and its Orthodox rabbis who make such determinations.” Plaintiffs’ beef, as it were, was with Triangle K, not ConAgra. Because the question of whether the hot dogs were properly labeled “100% kosher” would necessarily require the Court to “delv[e] into questions of religious doctrine,” the court concluded that the complaint offered a “religious question that is not the proper subject of inquiry by this Court.”
Wallace Part II: The state court chews on the issue
Wallace took a surprise twist on appeal when the 8th Circuit vacated Judge Frank’s decision with instructions to remand the case back to state court.2 In doing so, the court of appeals expressly avoided the substance of Judge Frank’s decision and instead concluded that plaintiffs had failed to allege a particularized and actual injury in fact sufficient to grant Article III standing. The panel highlighted that the complaint merely alleged that some hot dogs had been improperly certified, without ever stating that plaintiffs’ particular packages were tainted by non-kosher beef. It was therefore “quite plausible ConAgra sold the consumers exactly what was promised: a higher quality, kosher meat product.” (Emphasis in original.)
The case was thereafter returned to state court, where Judge Jerome Abrams was given an opportunity to stew over ConAgra’s renewed motion to dismiss and the First Amendment concerns implicated by plaintiffs’ allegations. Like Judge Frank, Judge Abrams looked beyond the named defendant and focused on the real meat of the complaint: Triangle K’s certification. While plaintiffs “[f]or some unexplained reason... opted not to include Triangle K” as a defendant, the “100% kosher” representation at issue in the complaint was predicated on Triangle K’s independent certification—not any independent conduct by ConAgra. Plaintiffs’ claims “therefore challenge the certification and underlying determination made by Triangle K that the beef and resulting products were kosher,” which would in turn require the court “to review the propriety of the rabbinical determination made by... Triangle K.” As before, Judge Abrams refused to act as “an arbiter of the application of kashrut by a Rabbi over a kosher determination; an impermissible entanglement and infringement upon religious practices,” and dismissed plaintiffs’ complaint.3
The Wallace decisions are premised on the same principle: A civil court cannot resolve disputes that ultimately come down to matters of religious philosophy. Indeed, both Judge Frank and Judge Abrams implicitly faulted plaintiffs for attempting to circumvent this barrier by suing a secular entity (ConAgra) rather than pursuing the entity actually responsible for the kashrut determination—Triangle K. And in both cases, despite appreciating the seriousness of plaintiffs’ allegations, the courts reasoned that the remedy was to simply refrain from eating foods failing to satisfy the individual consumer’s religious beliefs, in this case by “opting not to purchase or ingest Defendant’s Hebrew National products, or other products certified by Triangle K.” But to ask a civil court to dictate matters of religious practice was, simply put, not kosher.
Kosher labeling laws and Commack I
While the Wallace plaintiffs’ proposed remedy was ultimately rejected, the underlying concern at issue—food being fraudulently labeled kosher—was not unfounded. As the American Jewish population began to grow during the turn of the 20th Century, so did the rise of kosher food consumption and, with it, the sordid and scandalous elements often associated with the meatpacking industry of that era. In the absence of any central religious supervision, Jewish shop owners and butchers began hiring their own “house rabbis” (some with questionable ordination) in order to apply their own “kosher” certifications. The ability to charge a premium for food without any regulatory oversight was an open invitation to fraud, and some estimate that half of the “kosher” meat sold to the Jewish public during this time was not kosher.4
Faced with this growing corruption and without any communal mechanisms to enforce standards of kashrut, the Jewish community turned to the government. In 1915, the New York State Legislature enacted the country’s first “kosher food bill,” which criminalized the fraudulent labeling of non-kosher food as kosher. While there is no indication that Minnesota faced a similar epidemic of kosher fraud, on April 26, 1929, the Minnesota Legislature passed Minn. Stat. 31.651. The law, sponsored by three Twin Cities rabbis (whose synagogues are still active to this day) and explicitly modeled after the New York kosher food bill, stated in relevant part that it was a misdemeanor to sell, “with intent to defraud,” any raw or prepared meat and “falsely represents the same to be kosher... or as having been prepared under and of a product or products sanctioned by the orthodox Hebrew religious requirements.” The conflation of “kosher” and a specific Jewish denomination’s kashrut determination would prove to be the statute’s most controversial provision.
.png?sfvrsn=524e8c67_0 "Kosher Bill (Druck)")
Early challenges to these food bills were largely unsuccessful, however. In
Hygrade Provision Co., Inc. v. Sherman,
5 the United States Supreme Court took up an appeal from a kosher food dealer, who argued that the statutory references to “kosher” and “orthodox Hebrew religious requirements” was unconstitutionally “indefinite” given the alleged “impossibility, or at least the great difficulty, of determining with certainty what is kosher according to the rabbinical law and the customs, traditions, and precedents of the orthodox Hebrew requirements.” But a unanimous Court (minus Justice Louis Brandeis, who interestingly took no part in the case) held that there was no due process concern because New York’s statute required not only a false representation but also an intent to defraud. Thus, the statute merely required that a seller “assert an honest purpose to distinguish to the best of their judgment between what is and what is not kosher.” Delving into the specifics of Orthodox rabbinic law was therefore unnecessary as long as the seller “exercise[d] their judgment in good faith” in attempting to comply with the statute, thereby ameliorating the vagueness concerns raised by appellants. The highest authority had spoken.
But a second wave of constitutional challenges to the kosher food bills, this time under the establishment clause, saw far more success. The 2nd Circuit’s decision in Commack Self-Service Kosher Meats, Inc. v. Weiss6 is illustrative. There, a kosher meat seller cited for various violations of New York’s kosher food bills challenged the law on the grounds that the law equated “kosher” with “orthodox Hebrew religious requirements,” as well as the same vagueness concerns raised in Sherman. This time, the court agreed with plaintiff. The panel explained that the laws “excessively entangle government and religion” because they “effectively discriminat[e] in favor of the Orthodox Hebrew view of dietary requirements,” which constituted not only an “official position on religious doctrine” but also a delegation of “civil authority to individuals apparently chosen according to religious criteria.” This was in spite of the numerous “differences of opinion within Judaism regarding the dietary requirements of kashrut.”
Indeed, by discriminating in favor of this Orthodox view, the law prohibited members of other branches of Judaism from using kosher labels “in accordance with the dictates of their religious beliefs where their dietary requirements differ from those of Orthodox Judaism.” Additionally, without naming Sherman, the court explained that it was “unpersuaded” by the “intent to defraud” portion of the laws because, ultimately, “State authorities could not make a determination that the [plaintiffs’] meat did not conform to kosher requirements without first having arrived at an official position on what the kosher requirements are.” This unorthodox viewpoint, the court concluded, constituted a position the state could not take.
Kosher labeling laws revisited and Commack II
States soon began amending their kosher food bills to avoid the constitutional issues highlighted by the 2nd Circuit, and Minnesota was no different. In 2004, Minn. Stat. 31.651 was amended to remove reference to “orthodox Hebrew religious requirements” and instead required that a product being sold as “kosher” display a label or other indicia from a “rabbinic authority” indicating that the product was prepared or processed in accordance with said rabbinic authority. In presenting the amendment, state Rep. Frank Hornstein (DFL-Minneapolis) made explicit reference to the constitutional challenges levied against similar statutes in other states (including New York), and expressed the need to assure that Minnesota’s statute was “constitutionally appropriate.” (Rep. Hornstein further assured the chamber that there was no pork in the bill.)7
But was this new version of the kosher food bill actually “appropriate”? The 2nd Circuit revisited the issue in Commack Self-Service Kosher Meats, Inc. v. Hooker8 (Commack II), where Commack again raised a First Amendment challenge to New York’s similarly modified kosher food bill. But the absence of any Orthodox-specific language—the primary concern in Commack I—proved decisive. Agreeing with the district court that the law’s changes had turned the legislation into “purely a labeling and disclosure law,” the panel explained that the statute had a secular purpose of protecting against fraud by informing a consumer that the seller believes a product is kosher, at which point the consumer can examine “the kosher certifying criteria of the seller.” More importantly, the court highlighted that the new law did not adopt an Orthodox standard of kashrut (or even provide a definition of “kosher”), did not regulate which foods are acceptably kosher, and did not take a position on what it means for a product to be kosher; it simply required that “if a product is to be held out to the public as ‘kosher,’ the product must bear a label describing it as such.” This newer act—which neither advanced nor impeded religion, had a secular purpose, and did not excessively entangle the state and religion—had the panel’s blessing.
Thus, while it has never faced a direct challenge, Minn. Stat. 31.651 would likely be deemed constitutionally sound, given its move from Orthodox-specific kashrut determinations to those made by any “rabbinic authorities.” This transition additionally satisfies the spirit of the Wallace decisions, which resolved that determinations of whether a product is reliably “kosher” should be made by the consumer, rather than civil authorities. An observant Jew believing that a certain rabbinic authority’s kashrut determination is sufficiently unreliable can choose instead to purchase a product with another authority’s label. This legal landscape, in which the state does not favor one interpretation of kashrut over another, presents a truly kosher Minnesota.
Conclusion
The next time you go into a supermarket and pick up a food item, examine the packaging for any unfamiliar markings. What may seem like an innocuous symbol—a “U” within an “O,” a “K” within a star, the letters “CRC”—actually carries great significance for thousands of consumers holding to an ancient custom. It also provides a vivid example of the state’s limits on regulating inherently religious practices. While the debate over what is and is not “kosher” may be never-ending, the state’s rightful role as a passive observer has been conclusively settled.
JUDAH DRUCK is a litigation attorney Maslon LLP in Minneapolis. He represents corporate and individual policyholders in insurance coverage and complex business disputes, including recent cases involving coverage for covid-19 losses. He also maintains a robust commercial litigation practice spanning multiple industries and forums.
Notes
1 920 F.Supp.2d 995 (D. Minn. 2013).
2 747 F.3d 1025 (8th Cir. 2014).
3 Order Dismissing Plaintiffs’ First Amended Class Action Complaint, No. 19HA-CV-12-3237 (10/6/2014).
4 E.g., Sachar, A History of the Jews in America, pg. 389.
5 266 U.S. 497 (1925).
6 294 F.3d 415 (2d Cir. 2002).
7 House Floor Session, 5/10/2004 (archive available at https://www.house.leg.state.mn.us/hjvid/83/2163). Special thank you to Rep. Hornstein for taking the time to speak with me as part of my research into this article.
8 680 F.3d 194 (2d Cir. 2012).