Someone used non-hekhshered butter in making macaroni and cheese. They want to know if the pot and spoon is treif. The only ingredients in the butter is cream and salt. My understanding is that butter with whey could potentially be problematic because it comes from cheese making. I would assume that given
- one could make an argument that the cheese itself actually is kosher
- this may not come from whey
- all of this may be batel
that this isn’t really a problem.
They could also just kasher the pot and spoon just to be safe. What do you think?
Your correctly identify many of the reasons that this should not be a problem.
For background reference, here is a good article identifying potential halakhic concerns, and even noting positions that would argue that some of these concerns are not a problem.
That article notes, as you indicate, that whey derived from cheese making may be used in the making of butter. Given that possibility, the article identifies a number of concerns:
- The cheese itself contains non-kosher ingredients. This is without basis. There is no concern nowadays that non-kosher ingredients are used in the cheese. In the past, animal-based rennet was used, which indeed would render the cheese genuinely treif. This concern was the basis for the rabbinic edict of gevinat akum. Nowadays, all cheeses that we find in the supermarket are made with only vegetable rennet and there is no question that all the ingredients are kosher. The only reason that cheese needs a hekhsher is to address the rabbinic edict of gevinat akum which requires that a Jew be involved in the cheese-making process. The general consensus is that this edict applies even when only vegetable rennet is used in the cheese-making process. This concern, then, is a non-issue.
- Since the cheese is forbidden based on the rabbinic edict of gevinat akum, when the whey separates at hot temperatures, the taste of the cheese transfers to the whey. The article concedes that there are cases where this happens before the non-whey part of the mixture has actually become cheese, and thus is not yet forbidden, but still points to a concern of certain cheeses where the whey separates and is cooked together with what is already cheese. Since we rule that the prohibition of gevinat akum extends to its taste as well (Shulchan Arukh YD 115:1), then if the whey is cooked together with the cheese, it is forbidden because it absorbs the taste of the cheese.
The second concern is definitely a potential problem. However, it was addressed 40 years ago by Rav Moshe Feinstein. Rav Moshe (Iggrot Moshe YD 3:17) is emphatic that even if cooked with cheese, the whey remains permissible. He states that it is clear from the Acharonim that this was the practice, despite the logical concern of transfer of taste. His response to this concern is two-fold: (a) All whey would have the taste of cheese, even without cooking, based on how it was made. Since whey is kosher, the Rabbis obviously did not forbid whey that absorbed the taste of cheese in the cheese-making process; (b) Milk and cheese of non-Jews only becomes forbidden when it comes into the possession of a Jew. Thus, when the whey was cooked with the cheese, the cheese is not yet forbidden.
Whatever reason one gives, Rav Moshe’s point of departure is that it must be permitted, based on the evidence of prior generations. As he writes,
… אבל ביבשה גם הריק”ש ורבותיו היו מתירין הרי מפורש שגם הם לא חששו לאסור מצד הבליעה מהחלב. הרי נמצא שכל גדולי הדורות שלפני הפר”ח ושלאחריו לא חשו לזה, וא”כ לא שייך שאנן נחלוק עליהם ולאסור מצד טעם הבליעה מחלב שנאסר שאוסרת עד ששים אך שצריך לידע הטעם.
So, let’s see why butter is permissible:
- Following Rav Moshe there is no problem at all with whey being cooked with the cheese.
- Even if one were to disagree with Rav Moshe:
- In many cheeses, as the article itself concedes, the whey is being cooked before the rest of the mixture becomes cheese.
- Although there are some cases where the whey is cooked with what is already cheese, it is a safeik derabannan what type of cheese we are dealing with, and it should be mutar.
- As you note, there is an opinion that gevinat akum is not a problem today, and although this is not the Orthodox consensus, it can be added to the reasons for leniency here.
- According to some, gevinat akum is bateil berov, which there certainly is in the whey
- A number of kashrut organizations also raise the concern of equipment that might have been used for other products. This is a general concern raised in almost any manufactured product. Here is not the space to deal with this at length, but there are many doubts regarding this issue. How treif, really, are the other products that are used? How clear is it that they definitely were used within 24 hours for these problematic foods (as opposed to the principle of סתם כלים אינן בני יומן)? What is the basis for transferring taste? Is it more than 60? Are the machines are cleaned between uses that should make the absorbed taste pogem? As a general rule, I appreciate the policy of the hekhsher industry in cases like this, but I am skeptical how often there is really a halakhic concern.
All the above is regarding the butter itself and why a strong argument can be made to permit it without a hekhsher.
When it comes to the kelim that were cooked with the butter, there is the additional leniency that they were washed with yad soledet bo water with soap, which according to many is pogeim and makes it permissible (and in some cases, the butter will also have been less than 60).
Thus, the pot and spoon are totally fine. If you wait a day and make it eino ben yomo, all the better. From a policy perspective, you may want to think about whether to tell them to kasher it just to be safe. This is helpful both psychologically (it feels like they did something and fixed it) and in terms of religious norms (to see the use of non-hekhshered products as something that needs fixing, even if just “to be safe”). Or perhaps the opposite is the case – there may be a benefit in people knowing that bedieved it is worth asking a question even when the product does not have a hekhsher.