The Jerusalem Post

High Court ruling strengthen­s Chief Rabbinate’s monopoly over kashrut

Order deals heavy blow to alternativ­e licensing

- • 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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