Observations

Shaking Up Israel’s Kosher Certification System


After graduating from Brandeis in the mid-1970s, Ilana Raskin moved to Jerusalem and got a master’s degree in counseling. When she grew bored with social work, she began taking belly-dancing lessons from a friend in Tel Aviv and developed a successful second career dancing at parties, weddings, and bar mitzvahs. Then, suddenly, in 1988, her business took a downturn.

When Raskin asked restaurant and banquet hall owners what had changed, they explained that Jerusalem’s religious council disapproved of belly dancing and had threatened to revoke their kosher certification. One owner showed her a letter from the council containing new guidelines prohibiting owners from “arranging or permitting immodest performances” on their premises. Raskin filed a lawsuit against the council, alleging that its kosher certification authority extended only to the food under its supervision. The council’s no-belly-dancing policy was, she told The New York Times, “just one more area where they want to exercise control and their way of thinking on people.” Raskin’s lawyers argued that “Eastern-style dancing may not be to the rabbis’ taste, but there is no connection between it and the kashrut of the food served in banquet halls.”

Rabbi Avraham Yosef, Jerusalem 2013. (Photo by Flash90.)

Rabbi Avraham Yosef, Jerusalem 2013. (Photo by Flash90.)

In a landmark 1989 decision, the Supreme Court of Israel ruled in favor of Raskin. The court held that religious officials’ authority to impose kosher certification standards under Israel’s kosher fraud law is limited by the law’s purpose, which is to protect consumers. Restrictions on the style of entertainment in a restaurant or banquet hall are unrelated to preventing fraud, said the court. The religious council had asserted that immodest performances interfered with proper kosher supervision, because they precluded the presence of an inspector during the show, but the court rejected this argument, pointing out that entertainment does not interfere with supervision of food preparation before the show, and that it would be possible to suspend food service during the performance rather than ban the show altogether.

The Raskin case exposed how government involvement in Israel’s kosher certification system fuels dissatisfaction across the religious spectrum. Israeli law makes it a crime to sell food as kosher without government certification, and government agencies—like Jerusalem’s religious council—set mandatory minimum standards for kosher certification. This leaves those who wish to observe less stringent standards limited options: They can resentfully accept the official standard, file a lawsuit to overturn the standard, or ignore the standard and seek illegal private certification—all of which, over time, erode consumer confidence in the system.

Moreover, like other government regulatory agencies, religious councils are subject to judicial oversight to make sure that they do not exceed their statutory authority. In the Raskin case, the court believed that the religious council had overstepped its authority, and the court replaced a rabbinic ruling with a standard imposed by a secular court. Such decisions undermine rabbinic authority and degrade the religious integrity of official kosher standards. This is one reason many kosher-observant consumers consider government standards inadequate and rely instead on stricter private standards, which they view as more authentic

 

Today, 25 years after the Raskin affair, Israel’s government-run kosher supervision system is in crisis. In addition to widespread dissatisfaction with government standards, revelations of inefficiency and corruption have fueled calls for reform, the implications of which extend far beyond dietary restrictions. Competing proposals for how to restore public confidence in the system are now at the center of larger debates about religious and economic liberalization. Kosher reform raises deep questions about the country’s long-standing commitments to a strong role for the state in religious matters and economic regulation.

Israel’s chief rabbinate consists of a rotating presidency between the Ashkenazi and Sephardi chief rabbis who supervise a chief rabbinate council and a network of local chief rabbis. It serves as the ultimate authority on matters of Jewish law, including kosher certification. The Ministry of Religious Services, presided over by a cabinet minister, appoints and partially funds municipal and regional religious councils, which administer kosher certification locally. A restaurant or banquet hall seeking kosher certification must apply to its local religious council. The council sends a staff member to conduct an initial inspection of the applicant’s facility. If the council approves, it refers the application to the local chief rabbi, who formally grants certification by signing a certificate. The council then assigns a qualified inspector to provide ongoing supervision. These kosher inspectors must pass a test administered by the chief rabbinate. The certified business pays an annual fee to the council to maintain its certification. Fees to the council range from $100 for a small restaurant to $3,500 for a large hotel. In addition, the business pays the inspector an hourly wage set by the chief rabbinate of approximately $10.50.

From left: Rabbi Eli Ben-Dahan, Israel's Deputy Minister of Religious Affairs; Naftali Bennett, Minister of Religious Services; and Chief Rabbi David Lau at a press conference, February 2014. The banner behind them reads “The Revolution in Religious Services.” (Photo by Yonatan Sindel/Flash90.)

From left: Rabbi Eli Ben-Dahan, Israel's Deputy Minister of Religious Affairs; Naftali Bennett, Minister of Religious Services; and Chief Rabbi David Lau at a press conference, February 2014. The banner behind them reads “The Revolution in Religious Services.” (Photo by Yonatan Sindel/Flash90.)

But, as government audits, public commissions, and ongoing press coverage have shown, there are problems. To begin with, since kosher inspectors are paid directly by the restaurants and banquet halls that they supervise, the inspectors have a conflict of interest. A business owner who isn’t happy with an inspector can request a different one. Thus, inspectors have an incentive not to be too rigorous for fear that the business owner will replace them.

Another problem is absenteeism. In May and June 2007, Israel’s state comptroller made unannounced visits to 54 businesses under the supervision of Jerusalem’s religious council. During morning hours, investigators found inspectors present in only six locations; in the afternoon, they found none at all. The comptroller’s report also noted a general lack of documentation, such as timesheets for inspectors and inspection reports. Private complaints and press accounts of kosher inspectors who show up infrequently (or not at all) are, in fact, common. One business owner quoted in Ha’aretz described his inspector as coming “to the restaurant daily, sometimes every two days. When his wife’s father died, he sat shiva and didn’t come all week. Whenever he did arrive, he’d come for exactly 40 seconds. He’d come, say good morning, go to the drawer, check the invoices, and leave.” Rabbi Shimon Biton, a whistle-blower who formerly served as chairman of the Petah Tikva religious council, has also recently detailed allegations of nepotism in the employment of kosher inspectors and described cases of inspectors drawing multiple salaries by holding several supervisory jobs simultaneously while working at none of them.

A third problem is lack of transparency. Standards and policies—like the Jerusalem religious council’s anti-belly-dancing “guidelines”—are frequently not published or part of any public record. Moreover, local variation between religious councils is common. For example, a chain restaurant can get kosher certification in one municipality but be denied in another. This exacerbates a perception that rules are arbitrary or, worse, manipulated to favor some and disadvantage others. It has also recently been reported that religious councils use this lack of transparency to hide anti-competitive practices and other forms of corruption. In February, Ha’aretz published allegations that Be’er Sheva’s chief rabbi, Yehuda Deri, who is the brother of Shas party chairman and Knesset member Aryeh Deri, controls Be’er Sheva’s kosher beef business by conditioning certification on wholesalers’ willingness to sell their products only in retail stores where he directs them to be sold. According to a beef producer in Haifa quoted by Ha’aretz, “They don’t want to let me in Be’er Sheva. That’s how it is. The rabbinate determines which meat will be sold in which city, and in Be’er Sheva, the largest city in the south, there is Deri who decided that he’s not prepared to receive meat from my slaughterhouse because he has enough.”

A police investigation of Rabbi Avraham Yosef—chief rabbi of Holon and son of the renowned former chief rabbi and spiritual leader of the Shas party, the late Rav Ovadia Yosef—found sufficient evidence of “extortion, fraud, and breach of trust” to recommend criminal prosecution. The investigation found that Avraham Yosef required businesses seeking mehadrin kosher certification—a stricter level of private certification—to purchase meat and other products certified by a religious court—Beit Yosef—owned by the Yosef family and run by his younger brother Moshe. It was further reported that Shas representatives on local religious councils threatened to revoke the kosher certification of supermarkets that refused to give priority to a particular Beit Yosef-certified brand of meat—which costs  30 percent more than competing brands.

 

Israeli Minister of Religious Services Naftali Bennett has announced efforts to address these problems through a series of reforms that are part of a larger “revolution in religious services” that he announced upon taking office in 2013. Bennett proposes to improve oversight by outsourcing management of kosher inspectors to private corporations that will administer uniform salary and benefits arrangements, monitor quality control of inspection services, and address concerns raised by business owners. The corporations would work under contract with local religious councils. This public-private partnership would, according to Bennett, reduce inspectors’ conflicts of interest and absenteeism by putting corporations working for local religious councils in charge of paying and supervising them.

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In order to promote greater uniformity while at the same time accommodating different consumer preferences, Bennett proposes clearer guidelines that would define three levels of government kosher certification: kosher (the current standard), kosher mehadrin (“special”), and kosher lemehadrin min hamehadrin (“extra special”). Local chief rabbis who depart from these guidelines would be disciplined or replaced. Bennett hopes to increase transparency by developing a public website that would provide information about each certified business and alert consumers to any problems.

A popular Jerusalem restaurant under illegal private kosher certification. (Photo courtesy of Timothy Lytton.)

A popular Jerusalem restaurant under illegal private kosher certification. (Photo courtesy of Timothy Lytton.)

Finally, Bennett has promised a crackdown on private alternatives to government kashrut standards by stepping up enforcement of Israel’s kosher fraud law, which makes it illegal to represent food as kosher without government certification. He has announced plans for a special kosher police unit that would stage raids on restaurants and catering halls displaying private certification, seize food samples, and summon individuals for questioning. At a press conference in February, Deputy Minister of Religious Affairs Eli Ben-Dahan dismissed private certification efforts: “This is a miniscule trend, I would say, a mere sprinkling, that is trying to create some kind of alternative kashrut [which] can’t replace the chief rabbinate’s kashrut.” He pledged to “enforce the law by which the state is the one to issue kashrut certificates . . . and those who do not obey should be punished.”

The ministry’s crackdown does not include all forms of private kosher certification. Israeli law allows for private certification, provided that it is in addition to government certification. The most common such certification is issued by ultra-Orthodox organizations known by the generic name BADATZ—an acronym that stands for beit din tzedek, meaning “court of justice,” and dates back to before the establishment of the state. Originally, a single certification issued by the Jerusalem-based ultra-Orthodox communal organization, Edah Ha-haredit, there are, today, 24 independent BADATZ certifications. Overlapping membership in religious councils and BADATZ organizations is common and, in some localities, they are one and the same. They frequently employ the same inspectors.

The Ministry’s beef is with businesses that adopt private certification instead of government certification. Ben-Dahan’s tough rhetoric notwithstanding, however, the government has failed to crack down on independent kosher certifiers. For years, government authorities have turned a blind eye to businesses in ultra-Orthodox communities, like Jerusalem’s Meah Shearim neighborhood, that employ private certification by community rabbis. In 2012, it appeared as if things were about to change. In that year, the Jerusalem religious council fined five restaurant owners for representing their food as kosher without government certification. The owners had stated publicly that they were unhappy with government certification and would not obtain it. When they contested the fines—which ranged between $270 and $500—the council, surprisingly, did not pursue the matter.

Aaron Leibowitz, an American-born rabbi in Jerusalem who has been a vocal critic of government certification and a prominent organizer in the growing movement for private certification, speculates that the government is afraid that if it pushes the issue in the secular court system, it could lose a lot more than particular cases. According to Leibowitz, a secular judge might require the government to prove not merely that the restaurants defrauded the public by representing their food as kosher without government certification, but also that the food itself was not kosher, which would be more difficult. It would also open the door to the defense that the food in question was, in fact, kosher even without government certification, effectively undoing the government’s exclusive certification authority.

 

For the last several years, a restaurant in Tiberias has openly defied the chief rabbinate and the kosher fraud law by displaying a certificate in its front window that states in Hebrew Ba-hashgacha shel Ha-kadosh Baruch Hu—“Under the Supervision of the Holy One, Blessed Be He.” Although not every kosher rebel appeals to such a high authority, a growing number of restaurant owners and activists—primarily in Jerusalem—have begun developing private alternatives to government kosher certification. In October 2012, they established a Facebook page called “Kosher without a Certificate” to advertise restaurants that wish to represent their food as kosher without government certification. They followed with a highly publicized demonstration to protest alleged absenteeism and corruption in government kosher supervision. In a play on words based on the popular Israeli song “Mashiach Lo Ba”—“the Messiah is not coming”—they called the event Mashgiach Lo Ba—“the kosher inspector is not coming.”

Proposals for reform of Israel’s kosher certification system fall along a spectrum. Radical reformers call for drastically reducing government involvement and allowing a free market in private certification. Uri Regev, a Reform rabbi who heads Hiddush—an organization that advocates religious pluralism—insists that “the institution of the Rabbinate should be eliminated.” Regev recommends a minimal role for government as a regulator of private certification—the government would accredit private agencies and merely require them to “declare their policies and abide by them.”

Ruth Gavison, a law professor and leading civil rights authority, and Yaacov Medan, an Orthodox rabbi and prominent figure in the yeshiva world, published a Foundation for a New Covenant among Jews in Matters of Religion and State in Israel in 2003 under the auspices of the Avi Chai Foundation and The Israel Democracy Institute, in which they advocate a national kosher authority that would set minimum standards and approve and fund private organizations to issue kosher certification. Under this proposal, the state would support non-Orthodox kosher certification organizations, which could employ standards “in accordance with their customs,” provided that they submit their standards in writing and that their certificates and symbols are distinguishable. By contrast, the Ministry of Religious Services’ proposals preserve the government’s monopoly over kosher certification while seeking to make its administration more efficient and accountable. When compared to more radical proposals, Bennett’s reforms look less like a “revolution” than a consolidation of government power over kosher certification.

Government reformers like Bennett and Ben-Dahan fear that privatization of kosher certification would result in anarchy and widespread consumer fraud. But the example of the U.S. kosher certification system suggests otherwise. In the United States, a network of over 300 private certification agencies reliably ensures the kosher status of more than 135,000 retail products manufactured by some 10,000 companies. The system also provides certification to thousands of food service operations—such as restaurants, caterers, and hospitals—throughout the United States. Competition between agencies, which depend upon their good reputation among consumers and the quality of their service to clients to remain in business, makes the agencies eager to avoid mistakes and misconduct before they happen and to report them promptly when they do occur. Moreover, agencies are quick to publicize the problems of rival agencies. Despite the competition, American kosher certification agencies are also highly interdependent—certifiers of finished products or food service operations rely on other agencies’ certification of ingredients further upstream in the production chain—which leads them to closely scrutinize each other’s operations, creating a network of interagency oversight.

The United States government’s role in all of this is minimal. It simply provides civil laws and court systems that make it possible for private kosher certification agencies to make binding contracts with their clients and pursue trademark claims against fraudulent use of their certification symbols. In rare cases of intentional misconduct by uncooperative companies, state prosecutors can subpoena information, order the seizure of goods, and impose criminal sanctions. In addition, courts can award compensation to consumers who fall victim to fraud.

The contrast between the Israeli and U.S. systems is highlighted by the American analog to the belly-dancing battle in Jerusalem. In 1990, a year after the Raskin decision, controversy erupted over mixed dancing during evening cruises on the Hudson River on a ship called the “Glatt Yacht.” A rabbi from the private agency certifying the ship’s food insisted, “When we certify an establishment as kosher, it must meet all of the regulations of Jewish law, including the entertainment.” Mixed dancing was not permissible. “The Rabbi should be in the kitchen,” an outraged passenger who was asked to stop dancing told The New York Times. When the ship owner refused to prohibit dancing, the agency withdrew its certification. Instead of giving in, or filing a lawsuit, or engaging in civil disobedience—the options available to an Israeli business owner in the same position—he simply obtained the services of an alternative agency with standards more to his liking. While the U.S. kosher certification system is not perfect, its accommodation of diverse consumer preferences has not resulted in anarchy or rampant fraud.

 

There is more at stake here than consumer protection. Naftali Bennett’s push for kosher reform is part of a larger effort to move Israel away from an old, socialist, command-and-control approach to government regulation towards a new, market-oriented philosophy. Outsourcing government oversight to private corporations and relying more heavily on information disclosure to consumers are standard neo-liberal regulatory reforms. Given Prime Minister Netanyahu’s decades-long ambition to promote privatization and limit government regulation of the Israeli economy, as well as Bennett’s background as a very successful high-tech entrepreneur in New York City, this shift in regulatory approach is not surprising.

Nonetheless, Bennett has emphatically rejected the option to privatize kosher certification completely. In addition to being partial to neo-liberal regulatory philosophy, he is also committed to a religious ideology that is more modern and nationalistic than that of the ultra-Orthodox establishment, which dominates public religious institutions like the chief rabbinate and has often played a pivotal role in governing coalition politics. Bennett’s Bayit Yehudi (Jewish Home) religious Zionist political party outflanked the ultra-Orthodox parties in forming a government coalition with Netanyahu’s Likud party following the 2013 elections. Shortly thereafter, Bennett’s forces lost a bruising contest for the chief rabbinate, which was once again captured by the ultra-Orthodox camp. As Minister of Religious Services, Bennett is engaged not only in regulatory reform but also a power struggle against the ultra-Orthodox establishment.

A neo-liberal when it comes to economic regulation, Bennett is a supporter of established religion, and his party has been steadfast advocating reforms that will “strengthen the state kashrut system.” Whether this hybrid—or, from a classical liberal perspective, schizophrenic—approach will restore confidence in Israel’s kosher certification system remains to be seen. Its success in kosher reform may prove to be a testing ground for Israel’s attempt to reconcile neo-liberal economic policy with established religion.

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About the Author

Timothy D. Lytton is the Albert and Angela Farone Distinguished Professor of Law at Albany Law School and the author of Kosher: Private Regulation in the Age of Industrial Food (Harvard University Press).

Motti Talias is a PhD student at The Federmann School of Public Policy and Government at The Hebrew University of Jerusalem. His research focuses on private regulation and consumer protection.

 

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