An Eye on Kashrus: The Impact of Maris Ayin on Contemporary Kashrus

By Rabbi Tsvi Heber, Director of Community Kosher

Introduction

Maris ayin is a unique rabbinic enactment[1] whose breadth spans the entire spectrum of halacha. From proscribing a Jewish agent from lending a gentile’s money to another Jew[2] to prohibiting the use of a road leading toward a town that is celebrating an idolatrous holiday,[3] Chazal disallowed otherwise innocent actions in instances where they may be misconstrued by an onlooker.[4] Perhaps the most prevalent application of maris ayin is to the laws of Shabbos and Yom Tov where it is the basis for several edicts.[5]

As Canada’s largest kosher certifier, COR – Kashruth Council of Canada certifies approximately 165 food service establishments and must navigate a number of maris ayin issues. This article analyzes the impact of maris ayin on kosher food consumption through a variety of questions including:

1. Does maris ayin apply to simulated kosher products i.e. kosher products that are similar in name, appearance, texture or taste to non-kosher products such as imitation crab meat? Can one consume, or even cook, a glatt-kosher burger topped with soy cheese or a cheese pizza topped with soy pepperoni?

2. Can a kosher restaurant be open to the public on Shabbos or Yom Tov and serve pre-ordered meals?

3. Can one eat a kosher meal in a non-kosher venue, restaurant, event or business meeting?

New Maris Ayin Cases

There is a difference of opinion as to whether it is acceptable to extend the principle of maris ayin beyond what is specifically delineated by Chazal. The Pri Chodosh[6] asserts that a broad application of maris ayin is not appropriate. Should we prohibit the consumption of an undomesticated animal (chaya) without removing fats lest someone mistaken it for a domesticated animal (b’hayma) in which such fats are forbidden? Should we prohibit the consumption of wine, lest the onlooker believe that it is blood?[7] Pri Chodosh argues that it would be near impossible to develop consistent criteria to apply maris ayin beyond the cases that are specified by Chazal. Nevertheless, a cursory glance through many Poskim who deal with maris ayin questions reveals that many do apply maris ayin to cases that are not specified by Chazal.[8] Ultimately, it seems that the right to evoke the principle of maris ayin and apply it to contemporary situations belongs solely to the generation’s Torah leaders.[9]

Maris Ayin on a Rabbinic Prohibition

Generally speaking, Chazal enacted barriers as protection to avoid a mere possibility of transgressing Biblical prohibitions but they refrained from doing the same for rabbinic prohibitions. Similarly, Rama[10] allows the consumption of chicken with almond milk since even had the milk been authentic, the consumer would not transgress a Biblical prohibition.[11] The implication is that that there is no maris ayin on rabbinic prohibitions. Others disagree and do not differentiate between Biblical and rabbinic prohibitions.[12] Perhaps even the Rama did not intend to generalize, only to permit cases of chadrei chadarim, where the action is taking place in the privacy of one’s own home[13] or other such private settings. Only in chadrei chadarim would the Rama permit maris ayin on rabbinic prohibitions.[14]

Maris Ayin in Kosher Food

The Gemara[15] states that although fish blood is technically permitted, nevertheless, once it has been drawn into a cup it is prohibited since it can be mistaken for animal’s blood.[16] By extension, Poskim[17] prohibited the consumption and even the cooking[18] of meat[19] together with simulated milk from almonds or from women.

Three primary dispensations to Maris Ayin that are found are outlined as follows:

1. The aforementioned Gemara allows the fish blood drawn into a cup if there are fish scales in the cup as well. The scales would serve as a heker to demonstrate that the blood is from fish and not from an animal. Similarly, Rama allows meat and almond milk if almonds are placed on the table. Several Poskim extend this dispensation and allow almonds as a heker even for other simulated milk since the almonds alleviate the maris ayin.[20] In line with this reasoning, we might consider product packaging as a sufficient heker.[21] We might even go one step further and consider writing “pareve” or similar verbiage on a menu to indicate that the product or menu item is simulated.[22]

2. There should be no concern if the simulated product is already well known since we need not further suspect that the situation be misconstrued.[23]

3. Maris ayin is limited to specific cases where the permitted product and the prohibited product resemble one another in appearance, name, texture and taste such as animal blood with fish blood. But, if the two products really differ from one another in name, taste and texture we should not be concerned about maris ayin even though the two products may appear to be similar.[24]

These dispensations can be applied to many of today’s simulated products. For example, due to the fact that non-dairy creamer and margarine have become increasingly popular, they may be served at a meat meal[25] or immediately after a meat meal without a heker.[26]

Cheese pizza topped with soy pepperoni, a beef burger topped with soy cheese and even imitation crab meat might also qualify for a dispensation if their use is already well known or their tastes and textures are substantially different. Since these points are somewhat subjective, the common practice is to require proper signage on their menus and menu boards that would indicate their true identity.[27] Some add an additional requirement to accurately identify these items on store invoices and receipts.[28]

While the aforementioned signage would seemingly serve as a heker for eat-in customers, should there not still be a problem for people who take-out since the heker is not present when they are eating? Furthermore, some people order by phone and do not even see the menus or receipts. What about those who eat at an event where they are served this type of take-out food from a restaurant?

Shulchan HaLevi[29] explains that proper signage indicating the product’s simulated status on menus would indeed serve as a sufficient heker to alleviate the aforementioned concerns. He reasons that such signage is not any less a heker than the almonds mentioned in Poskim. That heker is quite subtle and many people who see the almonds won’t make the inference that the milk is pareve. In fact, some people may not even see the almonds. It seems that the heker only has to give some indication of the reality but doesn’t have to be foolproof. Rav Belsky shlit”a is not concerned that the heker may not be present during consumption since it is so well known that kosher restaurants do not serve the authentic non-kosher equivalent. He is further comforted by the fact that any customer who orders the product would certainly refer to it by its simulated name. This alone might alleviate the concern of maris ayin since the product is referred to accurately and does not bear the name of the authentic non-kosher version. Regarding serving take-out orders to others, Rav Belsky recommends that a heker be placed on the table.

An alternative approach to alleviate the concern of maris ayin on take-out orders is for the establishment to ensure that they are accompanied by a sticker describing the simulated status of the product or that the establishment’s take-out menu be placed into the consumer’s take-out order. These can act as a heker for those who are eating at home.[30]

Kosher Restaurants on Shabbos and Yom Tov

Can a restaurant operate on Shabbos and Yom Tov? Should a restaurant be any different than a caterer who operates on Shabbos according to the dictates of hilchos Shabbos?

The Mishna[31] rules that a Jew may rent his field to a gentile sharecropper who will work on Shabbos since the gentile is not his employee. However, a Jew may not rent his bathhouse to a gentile since the gentile may operate the bathhouse on Shabbos. What is the difference between the field and the bathhouse?

In those times, it was commonplace for people to rent out their fields but it was not common for people to rent out their bathhouses. Rather, the bathhouse owner generally hired employees to operate his business for him. Therefore, there is no issue of maris ayin in regard to the field but there is an issue of maris ayin in regard to the bathhouse.[32]

In the same vein, one can argue that restaurants operate differently than caterers. Caterers deal with pre-ordered menus and always prepare their meals in advance of the meal’s service. Restaurants, on the other hand, take orders on the spot and prepare food on demand. Payment also works differently. Caterers invoice their clients in advance of the event and generally do not receive payment at the event. Restaurant meals are always paid for immediately after the meal is concluded. Accordingly, there is no issue with catering a meal on Shabbos since the onlooker will assume that it was prepared in advance and was or will be paid for before or after Shabbos. On the other hand, one might argue that restaurants should not be allowed even to serve pre-ordered meals on Shabbos since the onlooker might suspect that the restaurant is violating Shabbos by cooking and selling meals. The current practice of some Jewish communities seems to be aligned with this approach.

We are well aware that many Rabbonim in large cities around the world have allowed restaurants to open their doors on Shabbos and Yom Tov and function as catering halls. Perhaps there is room for leniency because many restaurants regularly rent out their entire facilities and transform into catering halls, even during the week. Perhaps these restaurants can use a heker by placing a sign in the window to indicate that they can act as a catering hall. Perhaps the kashrus certificate is enough to indicate that the restaurant is operating under permissible guidelines. Perhaps, in these cities, this practice has become so commonplace that the onlooker already knows of the transformation.

Why is a restaurant different than the aforementioned bathhouse to which a sign would not be an effective way of communicating that the gentiles that are operating it are not employees of a Jewish person or company? Perhaps one can differentiate based on a subtle difference between the cases. In the case of the bathhouse, the onlooker can literally see the action which appears to violate Shabbos. He assumes that it is done in a prohibited manner even though the reality is otherwise. In the case of the kosher restaurant, the onlooker does not see any such action because there is none. Rather, he merely creates a scenario in his mind which causes him to suspect that there has been some sort of Shabbos violation.[33] There appears to be no precedent which would label such a scenario as maris ayin.

Kosher Meals in Non-Kosher Environments

There are several common scenarios that should be examined:

1. Is it permitted to order whole fruit[34] or drink water in a non-kosher restaurant? If not, can one enter a non-kosher restaurant to use their restroom or sit down at a meeting without eating anything?

2. Many workplaces provide a cafeteria or eating area where employees purchase non-kosher food or bring their own food to eat. Some cafeterias may even have packaged kosher food available. Is it permitted to eat kosher food inside such a cafeteria?

3. Can one purchase a kosher muffin and coffee at a coffee shop such as Starbucks and eat it inside the establishment; even though they sell non-kosher products?

4. Can someone eat a pre-packaged double wrapped meal at a non-kosher conference or wedding? What about on the airplane?

Let’s examine the following two scenarios that are brought in the Poskim:

1) It is forbidden for two friends to eat meat and milk on the same table without a visible heker lest they come to eat from one another’s plate.[35] This halacha is further applied to other scenarios such as chometz on Pesach[36] and a mudar hana’ah – someone who is forbidden to benefit from his friend because of a neder.[37] But the requirement is not extended to someone who wants to eat kosher on the same table as someone who is eating non-kosher (with the exception of non-kosher bread).[38] This is because a person naturally distances himself from non-kosher food (except bread) and is not suspect to forget himself and take from his friend’s plate.

While the setting of this scenario is not clear in the Poskim, it is clear that there exists a scenario that one would be permitted to eat together with another who is eating non-kosher food. Perhaps we may disregard this proof since it is plausible to suggest that this is only permitted in a kosher home.

2) There is a dispute as to whether travellers can use non-kosher dishes in order to eat herring and pickles that are provided by a hotel (assuming that their kashrus status is verifiable).[39] In this discussion, the Poskim do not prohibit eating in the hotel because of maris ayin. Perhaps we may infer that it is indeed permitted to eat kosher food at a hotel’s restaurant.[40]

Rav Moshe Feinstein zt”l[41] was asked if it is permitted to eat kosher food in a non-kosher dairy restaurant. His unequivocal response was to forbid “going into the restaurant to eat even food that is known to be kosher”. Some have understood that Rav Moshe intended to prohibit even going into a non-kosher restaurant, perhaps even to use the restroom.[42] Some suggest that this is permitted for a traveller since it is well known that he is using the facility for other purposes.[43]

A careful reading of Rav Moshe’s response indicates that he did not forbid entering into the restaurant. Rather, he is addressing a scenario where someone is ordering food from the non-kosher establishment and eating it. In that case, the onlooker would perceive that he was being served treif food by the restaurant. It is not clear that Rav Moshe would forbid entering the restaurant or even sitting down to eat one’s own food or even pre-packaged food that is served by the restaurant since there is a clear differentiation between your food and the regular non-kosher food. Furthermore, pre-packaged kosher meals have become a popular item in the kosher catering industry. Perhaps this new phenomenon alleviates to concern of maris ayin since it is now well-known that this option is available.

On an airplane it is certainly permitted to eat kosher food together with the others on the airplane that are eating non-kosher even though it is served to the passenger by the same stewards serving non-kosher since it is well known that kosher travellers can order kosher meals. One can suggest that it should also be permitted to eat one’s own food in a non-kosher cafeteria since everyone knows that people bring their own food there and there is a differentiation.

Should the same logic apply to the Starbucks scenario or purchasing kosher food in a non-kosher cafeteria? It appears that these scenarios are no different than Rav Moshe’s dairy restaurant since one is purchasing the food directly from the establishment and perhaps there is more reason to be stringent in that scenario. Perhaps Rav Moshe intended to forbid this only when the sole purpose of entering the restaurant is to eat. Nowadays, many people go into restaurants, halls and conference centers for other reasons such as business or for celebrations. Therefore, these people can be compared to travellers and we may permit them to eat their kosher meals in these non-kosher venues.[44]

An abbreviated version of this article originally appeared in Hamodia’s Kinyan Magazine