By Rabbi Yair Hoffman or 5tjt.com

It is a little strange that the Kashrus system we have in place in this country is somewhat counter-intuitive in terms of its structure.  The incentives or negiyos – are in the wrong places.  If a hashgacha is being paid by the establishment, does this not create an incentive for the Kashrus agency to look the other way?

In the 1980’s and 1990’s the entire field of accounting had a similar problem.  The way the system worked was such that false information in terms of the financial health of a company was put out there and investors were being ripped off.  Incomes, for example, were being misstated.  Financial audit statements made companies look rosier than they actually were.  Supposedly independent CPAs just took the information from the company reports and spit it out as fact.  They did this even though there were blaring red flags.

The government passed the Sarbanes–Oxley Act of 2002.  It is a United States federal law that set new and expanded requirements for all U.S. public company boards, management and public accounting firms. It included criminal penalties for those who violated it.  The reason for the problems was the counter-intuitive structure.  The problems in accounting still exist.  Indeed, this week alone SEC just came out with new regulations.  A recent two billion dollar massive fraud just happened with Wirecard and the European supervisory institutions want to break up the accounting firms.

The solution for the accounting problem is that there should be more watchdogs for the auditors:  Hechsherim for the Hechsherim, so to speak.

In 2009, researchers Bernard Lo and Marilyn Field published a book called, “Conflict of Interest in Medical Research, Education, and Practice.”  In the book, Lo and Field defined a conflict of interest as follows:   “A conflict of interest is a set of circumstances that creates a risk that professional judgement or actions regarding a primary interest will be unduly influenced by a secondary interest.”

When the inspector is paid by the people that he supervises there is a risk that his judgement and actions will be unduly influenced.  The health safety of the restaurant consumers has been placed at risk.  Indeed, the general public has also been placed in danger.

An auditor friend of this author told me, “I once heard a mashgiach refer to his “boss” as the store owner and not the kashrus agency he was working for. As an auditor, I was horrified.”

SAME FOR KASHRUS

The same should be true in the field of Kashrus.  The mashgiach is there to protect the public from eating non-kosher or questionable items just as the health inspector is there to protect the public from anything that can compromise their health and safety.

RAV MOSHE FEINSTEIN ZT”L

Indeed, the Gadol haDor of the previous generation, Rav Moshe Feinstein zt”l in his Igros Moshe (YD Vol. IV #1:8) writes this very idea.  Rav Feinstein states that the Mashgiach should not be paid by the facility that is receiving the hashgacha, but rather should only be paid by the Vaad HaKashrus itself.  Indeed, he should have no direct monetary business dealings with the company.

Let’s imagine the following scenario involving a Health Department:

It was an innovative way of saving money.  The municipality worked it out that they would outsource the financial cost of the Department of Health inspectors.  From now on, it would be the restaurants themselves that would hire the health inspectors.  The restaurants would pay them, they would take out the FICA taxes, the worker’s comp – the restaurant would handle it all.

The move “worked wonders” for the state of health in the restaurants.  Eateries that were previously designated with a C minus rating – were now rated A plus.  There were far fewer health-violation-write ups too.

The astute reader will detect an obvious problem here.  This is what is called a classic conflict of interest.  The upgraded rating and lowered violations are probably due to the unique financial arrangement.

The above story of the health inspectors that were paid by the restaurants was fictitious, of course.  Unfortunately, the analogy to Kashrus is anything but fictitious.  Kashrus agency after Kashrus agencies coordinate the supervision in a manner that is in direct violation of this Igros Moshe and of common sense.

A HISTORY OF FOUL UPS

In recent years, there have been numerous instances of kashrus foul-ups.  Indeed, the situation is somewhat akin to the wild west.  Most people remember the treif chickens in Shevach Meats in Monsey, New York.  There was Jin Glatt Chinese Kosher in Passaic New Jersey whose hechsher was removed suddenly.   There was also Stan and Pete’s – the main caterer in Johannesburg, South Africa.  It was found to be serving treif as well.   There was Doheny Glatt in Los Angeles, California.  These incidences are happening again and again and again with no respite in sight.

There are also Kashrus foul-ups that we do not even know about.

WILL IT HAPPEN AGAIN?

The question arises as to whether or not it will happen again or did these incidences teach us all a lesson?  An expert in the Kashrus industry who is both well-known and well-respected remarked, “It is not a question as to whether or not it will happen again.  It is rather a matter of when will happen again.”  The community at large needs to speak up to prevent this from happening.  Feeding Tarfus to Klal Yisroel is not something that we should sit by and accept.

MAY BE A VIOLATION OF DVARIM

The situation needs to be rectified. It could very well be that allowing a conflict of interest to continue may be a violation of the Torah prohibition of “v’asisa hayashar v’hatov – You shall do the just and the good” (Dvarim 6:18).

The Ramban explains that the Torah gave this general Mitzvah because it cannot relate to all cases and eventualities that might arise. Therefore, the Torah covers all situations with a general instruction of acting in fairness and justness. In all his ways, the individual is bound to the “just and the good.”  Many Poskim point to this pasuk as being the source of the obligation of acting lifnim mishuras HaDin – above and beyond what strict halacha dictates.  How can there be an obligation of going above and beyond the law?  Would that not, by definition, be a non-obligation?

In explanation as to why the situation in kashrus remains in a state of built-in conflict of interest we turn to a position paper presented by an Executive Rabbinic Coordinator, at the ASK -RCA Yom Iyun held at OU Headquarters, in New York City on May 1st, 2007.

The position paper stated as follows:

It is self-evident that it is preferable that a Mashgiach be paid by the Kashrus organization and not by the supervised facility.

Unfortunately, this is generally not a viable option for semi or full-time Mashgiachim of establishments because of insurance considerations.

It is unclear what is meant by insurance considerations.  This author knows of at least a dozen insurance brokers that would gladly offer any hechsher insurance for a full staff of mashgichim.  What is probably being referred to is that the kashrus agencies cannot underwrite the payroll and its insurance if the restaurants are late in paying.  But this can be rectified if the restaurant is made to pay these fees in advance.

If Kashrus is something that we truly care about – then we really need to re-structure things from the ground up.  Also, when an error or problem is found, we should all use our collective heads to figure out how to resolve the problem.  This cannot happen with the prevailing lack of transparency that exists in our Kashrus system.  What happens now is not ideal nor acceptable.  Let’s say, for example, that an unkosher product is found in a restaurant.  The mashgiach reports it to his supervisor at the hechsher (and even that is a maybe). The hechsher decides to fine the restaurant, sometimes to the tune of tens of thousands of dollars.  We, the public end up hearing nothing about it.   And neither do the other organizations – and an opportunity to improve is lost.

TWO SUGGESTIONS

The first suggestion is that we should raise funding to employ roving kashrus inspectors to supervise if the salads we are eating are even being checked for bugs and if they are to see if they are being checked adequately.  They should be paid separately, somehow. Perhaps a group of wealthy individuals could fund it.

THE PEO OPTION

There is also another option regarding the Rav Feinstein zt”l issue.  In the United States and elsewhere there are companies called PEOs –  professional employer organization.  A PEO is a firm that provides a service under which an employer can outsource employee management tasks. These include employee benefits, payroll and workers’ compensation, recruiting, risk/safety management, and training and development.  A PEO could be hired to take over all of a hechsher’ mashgichim.

Regardless, the issue should be addressed by the Kashrus associations.

The author can be reached at [email protected]