High Court rul­ing strength­ens Chief Rab­binate’s mo­nop­oly over kashrut

Or­der deals heavy blow to al­ter­na­tive li­cens­ing

The Jerusalem Post - - FRONT PAGE - • By JEREMY SHARON

In a huge blow to the re­cent phe­nom­e­non of in­de­pen­dent kashrut au­thor­i­ties, the High Court of Jus­tice ruled on Mon­day that restau­rants may not use the words “kosher” and “un­der su­per­vi­sion,” or present them­selves as a kosher es­tab­lish­ment in any way, un­less they have a kashrut cer­tifi­cate from the rab­binate.

The de­ci­sion will strengthen the mo­nop­oly of the chief rab­binate over kashrut cer­ti­fi­ca­tion, since, un­til now, in­de­pen­dent kashrut au­thor­i­ties have been able to is­sue su­per­vi­sion cer­tifi­cates and use the word “un­der su­per­vi­sion.” In par­tic­u­lar, the rul­ing will have a heavy, and pos­si­bly crip­pling im­pact on the in­de­pen­dent kashrut-li­cens­ing author­ity Hash­gacha Pratit, which in re­cent years has pro­vided Ortho­dox kashrut su­per­vi­sion for restau­rants and busi­nesses that did not want to use the rab­binate’s su­per­vi­sion.

Hash­gacha Pratit said in re­sponse to the de­ci­sion that it would con­tinue to op­er­ate and pro­vide kashrut su­per­vi­sion to “the pub­lic, which has lost all

faith in the rab­binate.”

Be­cause of reser­va­tions ex­pressed by the jus­tices about the rab­binate kashrut sys­tem, they ruled that the de­ci­sion was ef­fec­tive for only two years.

Hash­gacha Pratit, which pro­vides kashrut su­per­vi­sion to 26 restau­rants in Jerusalem, Tel Aviv, Her­zliya, and Kfar Saba, was es­tab­lished sev­eral years ago as an al­ter­na­tive to the rab­binate’s services, which have been strongly crit­i­cized for nu­mer­ous prob­lem­atic prac­tices.

The Law against Kashrut Fraud states, how­ever, that only the chief rab­binate, through its lo­cal rab­binate branches, may is­sue kashrut cer­tifi­cates and only restau­rants that have a rab­binate cer­tifi­cate may rep­re­sent them­selves in writ­ing as kosher es­tab­lish­ments.

In May 2015, then attorney-gen­eral Ye­huda We­in­stein is­sued a rul­ing ex­plic­itly per­mit­ting restau­rants and other culi­nary busi­nesses to de­clare them­selves to be “un­der su­per­vi­sion” even if the su­per­vi­sors are not li­censed by the rab­binate.

The High Court de­ci­sion, in a two-to-one rul­ing, re­verses that de­ci­sion, how­ever, and closes this loop­hole – a step that will make Hash­gacha Pratit’s con­tin­ued op­er­a­tions ex­tremely dif­fi­cult, if not im­pos­si­ble.

The rul­ing came in re­sponse to a pe­ti­tion filed sev­eral years ago by the Is­rael Re­li­gious Ac­tion Cen­ter of the Re­form Move­ment in Is­rael on be­half of two res­tau­rant own­ers who ob­jected to the prac­tices of kashrut su­per­vi­sors from the Jerusalem rab­binate and de­cided to halt their rab­binate su­per­vi­sion.

They stated, how­ever, that they fol­lowed kashrut laws in their es­tab­lish­ments and con­tin­ued to ad­ver­tise them­selves as kosher restau­rants.

The restau­rants were fined for con­tin­u­ing to ad­ver­tise them­selves as kosher with­out the rab­binate su­per­vi­sion, in ac­cor­dance with the Law against Kashrut Fraud.

The pe­ti­tion sought to have the fines an­nulled, ar­gu­ing that, although the pur­pose of the Law against Kashrut Fraud was jus­ti­fi­able, the means for pre­vent­ing fraud dis­pro­por­tion­ately harm the choice of res­tau­rant own­ers to con­duct and mar­ket their busi­ness as they see fit, even if they are not per­pe­trat­ing fraud, i.e. they are in fact kosher.

The pe­ti­tion­ers also ar­gued that if a res­tau­rant presents it­self as kosher and ob­serves kashrut laws, the res­tau­rant own­ers should not be de­fined as de­ceiv­ing its cus­tomers by telling them the es­tab­lish­ment is kosher and, there­fore, should not be viewed as vi­o­lat­ing any laws.

Jus­tice Noam Sohlberg wrote in the rul­ing that kashrut laws are com­plex and re­quire a great deal of knowl­edge and train­ing to im­ple­ment prop­erly. He also wrote that a res­tau­rant owner has an in­her­ent in­ter­est of to present the busi­ness as kosher to in­crease the num­ber of its po­ten­tial cus­tomers, while at the same time kashrut ob­ser­vance in­curs a sig­nif­i­cant fi­nan­cial cost.

There­fore, Sohlberg said, the rea­son­ing for the Law against Kashrut Fraud to pre­vent con­sumers from be­ing mis­led is sound.

The jus­tice ac­knowl­edged that the law does do a cer­tain amount of in­jury to the Ba­sic Law: Free­dom of Oc­cu­pa­tion, but said that such in­jury was un­avoid­able given the pur­pose of the law, and ar­gued that the law does not ban a res­tau­rant from pre­sent­ing it­self as kosher at all, but only from do­ing so with­out the au­tho­riza­tion of the rab­binate.

Sohlberg ruled, there­fore, that the Law against Kashrut Fraud was con­sti­tu­tional and that with­out a kashrut li­cense from the rab­binate, a busi­ness may not present it­self as kosher, even if it does so in a way that does not men­tion the word “kosher.”

He said, how­ever, that the rul­ing was not de­signed to rub­ber stamp the rab­binate’s kashrut sys­tem, say­ing there were se­ri­ous mal­func­tions in the cur­rent sys­tem. He men­tioned kashrut su­per­vi­sors who visit the restau­rants un­der their aus­pices for just a few min­utes a week; who do their work im­prop­erly; de­mand pay­ment un­der the ta­ble; and su­per­vi­sors who will not eat in the es­tab­lish­ments they su­per­vise.

Sephardi Chief Rabbi Yitzhak Yosef wel­comed the rul­ing, say­ing it would pre­vent con­sumers from be­ing de­ceived, and said the rab­binate was mak­ing ef­forts ev­ery day to make things easier for con­sumers and busi­ness own­ers.

Ashke­nazi Chief Rabbi David Lau said, “Any de­ci­sion that would have al­ter­na­tive kashrut li­censes, some of which are fic­ti­tious, would have led to se­vere de­cep­tion of the gen­eral pub­lic.”

The pe­ti­tion­ing restau­rants said, how­ever, that the rul­ing gave the rab­binate “an un­prece­dented mo­nop­oly over kashrut,” and pointed out that it went against the po­si­tion of the pre­vi­ous attorney gen­eral.

They added that, ow­ing to the difference of opin­ion be­tween the three jus­tices, they would re­quest an ad­di­tional hear­ing in front of an en­larged panel of jus­tices.”

Hash­gacha Pratit added, “De­spite the de­ci­sion we are not go­ing any­where... As the most pro­fes­sional and prin­ci­pled body in the coun­try in the field of kashrut, we will not aban­don the pub­lic to the hands of the rab­binate and will con­tinue to pro­vide qual­ity kashrut services to Is­raeli cit­i­zens.” •

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