Milk in Jewish Law: Is Chalav Yisrael Halacha or a Chumra?

Every morning, well, except for Shabbat or Yom Tov morning, I get an e-mail from Aish HaTorah about various aspects of Judaism. The "Ask the Rabbi" section recently was about chalav Yisrael (חלב ישראל). Chalav Yisrael, which literally means "milk of Israel," is the term in Jewish law that refers to dairy products that were milked and processed under the supervision of a Jew. In addition to talking about chalav Yisrael, the "Ask the Rabbi" response also dealt with chalav stam (חלב סט''ם), which is milk not supervised by a Jew, but is still considered by many observant Jews to be kosher because the supervision over the milking process is so stringent that nothing non-kosher would enter the milk. For those who abide by chalav stam, the status of chalav stam has the same legal status as chalav Yisrael. Although the practice of chalav stam is considered widespread in a country like the United States, it is not a universal practice. I took issue with the "Ask the Rabbi" response because it was unsatisfying, so I decided to find out whether the permisibility of chalav stam was a justifiable leniency or if using chalav Yisrael  is the only acceptable practice under Jewish law.

The practice of chalav Yisrael has its origins in the Talmud (Avodah Zarah 35b). Milk coming from a kosher animal is inherently kosher. However, the talmudic rabbis wanted to make sure that there was no non-kosher animal product that mixed in with the kosher milk, which is why from a legalistic and historic standpoint, the rabbis put up a fence (gezeirah) in which an observant Jew needs to supervise the process (Shulchan Aruch, Yoreh De'ah, 115:1). If there were non-kosher product in the milk, it would be rendered chalav akum (חלב עכו''ם), which is milk from "non-Jews."

In recent times, there have been changes in the regulatory oversight of how milk, amongst other foodstuffs, is produced. One of the rules of a bureaucratic organization such as the Food & Drug Administration (FDA) is essentially that there can be no false advertising on milk, e.g., a gallon of milk being sold as cow's milk actually needs to be 100% cow's milk. If a producer of milk misleads the customer and puts milk from other animals into the cow's milk, then the producer is subject to a heavy fine, not to mention negative publicity. Since there is sufficient supervision and incentive to ensure the quality of the milk, this resulted into a third legalistic category of milk known as chalav stam (plain milk).

As if it were a surprise, this is another example of "two Jews, three opinions," which is to say this issue causes controversy in the observant Jewish community. Can we ignore the need for Jewish supervision because we live in an age where the quality of the milk can be ensured, or do we still have to follow the stringency, even though the reasoning no longer applies?

My answer is a bit nuanced: it depends where you are living. In Israel, most of the citizens are Jews, so the question becomes irrelevant. In countries where they do not have appropriate [government] regulation, which includes most of them, then one cannot rely on a leniency of chalav stam. In a country that has strong enforcement and oversight over food, like the United States, I would opine that using chalav stam is not only acceptable, but dare I say preferable.

Under Jewish law, a gezeirah has a very specific function, which is to act as a fence in order to prevent the violation of a biblical law, which in this case is the consumption of non-kosher animal product (Leviticus 11). The historical context in which the law was created was different from today. Much of the laws in Tractate Avodah Zarah deal with avoiding contact with pagans and idol worshipers. When defining chalav akum above, I put "non-Jews" in quotes, and I did so because the word akum is an abbreviation for עובדי כוכבים ומזלות, which literally means "worshippers of the stars and zodiac signs." The non-Jews with whom Jews interacted in the Talmudic era were decidedly pagan. Going with the insights of HaMeiri regarding non-Jewish neighbors, I would argue that Christians and Muslims don't fit under this definition of akum. Even if one were to [erroneously] consider Christians and Muslims to be under the category of akum, the increased government oversight of food processes causes any disquietude to dissipate. Since the concern of non-kosher animal product mixing in with kosher milk is no longer legitimate, the reasoning behind the fence disappears, as should the law. In this case, R. Moshe Feinstein (Igrot Moshe YD 1:47), zt"l, did make an exception because all reasonable doubt disappeared with government protocol (what is called in the halachic world "anon sahadi"), and he thusly allowed for the consumption of chalav stam. Additionally, R. Yosef Soloveitchik, zt"l, also permitted the consumption of chalav stam. In addition to R. Feinstein's reasonings, R. Soloveitchik pointed out that a) there are no non-kosher animals in the vicinity being milked (ein biedro tamei) and b) the animals are technically being milked by machines, which doesn't render it chalav akum.  

Even if one wants to point out that there is still a small chance that government protocol doesn't act as enough of a deterrent, then let me respond with this: it is always theoretically possible to sneak some non-kosher product into the milk, whether it's through bribery of a bureaucratic official or simply not caring about the law. Let's ignore for a moment that the probability is next to nil. Keeping kosher is a matter of trust. There is a more-than-reasonable assumption that one can make regarding the origin of the milk. If you want to apply this level of skepticism, you better be able to do it to all facets of your life to the point where you even question your own existence and make plans on the improbability that you really don't exist. So let's be reasonable about setting standards and burdens of proof.
  
Now, why do I go as far as saying that chalav stam is preferable? One would think that going with the stricture (chumra; חומרה) of chalav Yisrael would be preferable because it shows that one is so dedicated that the individual decides to abstain from that which is permissible, just to be certain that nothing is violated. The problem with that mentality is human nature. A tzaddik is a righteous individual who consistently follows the law. A chassid is one who goes beyond the law. As much as we'd like to, most of us cannot reach these levels of spiritual meticulousness--we're only human. Observing halacha was never meant to be for the few and the spiritual elite. Halacha was meant to be observable and obtainable. Although chalav Yisrael is easier to accrue than it used to be, it's still more difficult to come by and it's still more expensive, which would violate the idea that "the Torah takes pity on the people Israel's money" (Rosh Hashanah 27a). What's more is that this scenario is a rarity in Jewish legal history because it is a case where a change in the reality allows for us to lower the halachic minimum. This is vital because an institutional change [such as governmental protocol] has turned something that was once law into a chumra, at least in an American context, which is not insignificant because about two out of five Jews worldwide live in America. As such, if you have a legalistic justification for a more lenient ruling, especially when a majority of observant Jews abide by it, and you set the baseline at piety, not only would you be opining that a majority of observant Jews in America are really not observant, but you would also be violating the biblical commandment of not putting a stumbling block before the blind (לפני עבר) because it becomes that much more difficult to observe Jewish law.

The way I see it, chalav Yisrael is yet another example of conflating stricture with religiosity and truth. Sometimes, it's better to be more lenient. This is one of those instances. If you, as an individual, want to take on chalav Yisrael because you find that a chumra shows your devotion to Jewish or that you equate strictness with religiosity, go for it! It is an individual's choice (or in some case, a communal norm) to go beyond the letter of the law. And if you want to deal with the obstacles of mingling with Jews that consume chalav stam, then again, it's your prerogative. But much like R. Feinstein (Igrot Moshe, YD, 1:47-49), let's not treat people who consume chalav stam as if they were violating Jewish law.