(By Rabbi Yair Hoffman for 5TJT.com)

The New York City Council is made up of 51 members.  They introduce and vote on legislation that controls all aspects of city life.  Currently, the New York City Council members are  considering legislation that would ban foie gras from being sold in New York.  The reason is that they believe that the way these birds are fed constitutes terrible cruelty to animals.

The bill has half of the Council signed on as co-sponsors, and Mayor de Blasio himself said that he supports the intent of the proposal.  The bill may be set to be voted on in the fall,

The question is, what does halacha say about all of this?  Is there cruelty to animals involved here?  Are there other kashrus issues in Foie gras as well?

A JEWISH FOOD

Foie gras, shockingly enough has historically been known as a Jewish food. It can either be made from fattened goose or duck. In this case, the one made from ducks is used and is supervised by the OU.

A famous German mercenary soldier and poet who was a contemporary of the Ramah, Hans Wilhelm Kirchhof,  wrote in 1562 that the Jews raise fat geese and particularly love consuming their livers. Indeed, the pope’s own chef, Bartolomeo Scappi, chef to Pope Pius V, writes in his cookbook, “the liver of [a] domestic goose raised by the Jews is of extreme size and weighs [between] two and three pounds.” Clearly, the food was identified as a Jewish food in the time of the Shulchan Aruch.

MODERN FOIE GRAS STANDARDS ARE QUITE HIGH

In the past, some have raised questions about the kashrus of foie gras, but Rav Yisroel Belsky zt”l of the OU researched many of the issues and permitted it. This author also conducted research into the matter and believes that the foie gras industry has been subjected to Lashon Harah. In conversation with the Av Beis Din of Paris, France, Rav Yirmiyahu Menachem Cohen, the author discovered that he shares the same view.  What follows is an in-depth analysis of the underlying issues.

THE PROCESS

The goose is raised normally until it reaches its natural weight of about nine pounds.  The force-feeding then begins, where the geese are fed about one pound of feed three times a day with a specialized feeding machine that measures the amount of feed and has a tube that is inserted into the duck or goose.  This is done for approximately three weeks, until the goose reaches an astounding 18 pounds.  The liver grows at a disproportionate rate, increasing to some four to six times its natural weight.

Some places do the force-feeding manually through what appears to be a huge eye-dropper that is forced down the goose’s throat, which could cause the esophagus to be injured. Nowadays, the kosher force-feeding done in France and Hungary, is done through a soft pvc pipe.

The type of feed used is also crucial. If the feed is ground thinly then there are less injuries, but issues can still arise. Historically, after the Columbine exchange brought corn to Europe, farmers realized the marbleizing capabilities of corn in the fat and began to use corn as feed instead of grains.

In recent years, proponents of kosher foie gras production, claim that the corn feed is ground extra-fine and cooked to the consistency of a thin oatmeal. There are also Bodkim who inspect both the feedings as well as after the Shechita, entirely removing the esophagus, separating it entirely from the mucous membrane and examining it thoroughly.

This is what is done in OU supervised kosher foie gras production.

THE ISSUE OF TZAAR BAALEI CHAIM

Most Rishonim are of the opinion that Tzaar Baalei Chaim is, in fact, a biblical prohibition, as is the implication of the Talmud (Shabbos 128b).  The Rambam, however, is understood by most commentators as holding that it is of Rabbinic origin.  [See Vilna Gaon CM 272:11, notwithstanding the view of the Keseph Mishna who reads the Rambam as holding that the prohibition is biblical as well].

Regarding the issue of Tzaar Baalei Chaim, there is also no question that fowl do fall within the purview of this halacha, as there are many examples of Tzaar Baalei Chaim in the Gemorah pertaining to birds.

NOT A VIOLATION

However, we see circuitously from the responsa of the Ramah (#79) that the force-feeding of geese is actually not a violation of Tzaar Baalei Chaim.   How so?  He rules that if a goose is pained because it is used to being force-fed and it is now Shabbos, one may tell a gentile to force-feed the goose so that it not undergo Tzaar Baalei Chaim.  If the Ramah felt that force-feeding it in the first place was a violation then he would clearly have mentioned that in the first place.

Another question is whether the geese or duck actually do experience undue pain.  There are veterinarians, proponents of foie gras, that claim the ducks and geese do not have a gag reflex, and therefore do not suffer like a human being would when a tube is forced down their throats.  It is true that these geese have a collagen-lined esophagus which enables geese to swallow large fish and other prey without pain.  Yet others have reported that “the oropharyngeal area is particularly sensitive and is physiologically adapted to perform a gag reflex to prevent fluids from entering the trachea. Force feeding will have to overcome this reflex and hence the birds may initially find this distressing and injury may result.”

Who is correct in terms of the “gag reflex?”  It is hard to know for sure, but when this author viewed force-feedings the fowl did not seem to gag at all.  It could be, however, that the very first time or few times that these fowl are force-fed they may experience gagging, but this author was unable to determine this either way.  It is true, however, that the esophagus of waterfowl starts directly below the tongue – thus the gag reflex is significantly different that of human beings.

Veterinarians who are proponents of foie gras also claim that fowl are different than mammals in terms of whether it is the norm for their livers to store fat.  They claim that for humans, it is indicative of illness, while in fowl, it is natural for fowl liver to store fat.  These veterinarians point to studies in France that duck and geese experience more stress feeding in the wild than being force-fed in farms.

Others disagree vehemently with this view and claim that the very fact that the duck and geese pant and run away from the workers that feed them, rather than toward them show that they are anything but the happy geese and ducks that are portrayed by the farms.

Furthermore, the Trumas haDeshen (105) rules, as do numerous Poskim, that when it is for the use of mankind, the issues of Tzaar Baalei Chaim are not factors.  Some may argue that since these birds are being fattened for human consumption Tzaar Baalei Chaim is not an issue.

The counter-argument here is that this may not be the case.  The Chazon Ish writes (Shabbos 48:7) that excessive work beyond the norm for an animal is to be considered Tzaar Baalei Chaim.  The intent of the Chazon Ish is not necessary limited to the working of animals.  It could very well be that excessive tzaar beyond the natural norm for the animal is also forbidden, whether it is brought about through work or through some other aspect of raising them.

There is also another factor beyond tzaar Baalei Chaim, which some of the Achronim quote.  The Torah tells us to emulate Hashem and to walk in His ways, v’halachta b’drachav.  Many meforshim explain that some of the leading sages refrained from acts of cruelty to animals even though the cruelty was for the use of mankind on account of it being a violation of v’halachta b’drachav – and not Tzaar Baalei Chaim.

After writing about the aforementioned Chazon Ish, this author spent a day at a non-kosher processing factory which specialized in Foie Gras production, and observed the entire life cycle of the duck in the processing, from very young ducklings to adulthood (the ducks are kept in many simultaneous stages).  There was nothing in this author’s opinion that could be characterized as Tzaar Baalei Chaim.

OTHER POSSIBLE KASHRUS ISSUES

While the issue of Tzaar Baalei Chaim is one thing – there may be other issues that pertain to kashrus.  In order to understand these other issues, a brief introduction is necessary.

THE ANATOMY

The veshet, or the esophagus, is comprised of two tubes, the outer red tube and the inner white tube. The outer tube is made of muscle tissue that causes food to move down the tract, squeezing it along by putting pressure on the white tube. The white tube is not muscle tissue at all.  It is a mucous membrane that is somewhat slimy, which allows the food to travel down with less friction.

THE HALACHIC QUESTION

If just one of the tubes (either the chitzon – outer, or the pnimi – inner) of the veshet is punctured but the other is intact, the animal is not considered a Treifah. However, Rabbah rules (Chullin 43a) that it is next to impossible to detect a small miniscule hole from the outside in the outer red layer of the esophagus. Depending upon the size of the tube and the type of food being forced down the goose’s throat, the likelihood of damaging the esophagus can sometimes be somewhat high.

What happens, then, if a thorn or a long and thin hard piece of food is found lodged in the animal’s esophagus?

THE GEMORAH AND THE TWO INTERPRETATIONS

The issue is addressed by Ullah at the top of Chullin 43b.  He states: “If a thorn is found lodged in the esophagus we are not concerned that shema hivri – the esophagus may have been punctured and subsequently healed.” The Gemorah asks why this case is different than a case of a safek drusah – an animal that may possibly have been mauled, in which the Gemorah presumes that Ulla is stringent. The Gemorah answers that Ullah, in fact, rules leniently in that case too, and does not require that the a safek drusah animal needs to be examined.

Rashi provides two explanations for the term shema hivri.

The first explanation is that perhaps a membrane expanded over the original puncture wound and covered it. Since it is not a type of membrane that halachically plugs up a puncture, as it came about as a result of a wound, there is no resolution to the problem if the area is inspected.  A bdika of the veshet would not help at all.  The Rambam is in agreement with this explanation of Rashi.

Rashi’s second explanation is that the concern is that perhaps the thorn punctured through both layers of the esophagus. The Rif is in agreement with this explanation of Rashi.

CRUCIAL DIFFERENCE BETWEEN THE TWO INTERPRETATIONS

The difference between the two views is essential to the halacha.  According to the Rif, if one inspected the other layer and found nothing, the animal could still be deemed Kosher.  According to the Rambam, an inspection would be completely futile and the animal would no longer be considered kosher.

STRINGENT VIEW

Now while Ullah rules leniently, the Rif, the Rambam, and the Rashba all rule stringently, since the Gemorah ultimately concludes that we must inspect a safek drusah.  They conclude, therefore, that Ullah’s view was rejected by the Gemorah’s final position.   This would indicate that anytime any thorn or long, thin food particle is found in the esophagus – the goose would be rendered non-kosher.

LENIENT VIEW

The Rosh and Raavan, however, do rule like Ullah and are not concerned when a thorn is found in the esophagus.  They rule in this manner because they equate the case of the thorn found in the esophagus to the case of a needle found in the Bais Hakosos (the reticulum), where if it is just found on one side it is deemed permitted.  [The Rambam would differentiate between the two cases since the walls of the reticulum are much thicker than the tissue of the esophagus.]

The Shulchan Aruch rules like the Rambam forbidding it, while the Darchei Moshe rules leniently like the Rosh.

TWO FURTHER COMPLICATIONS REGARDING THORNS

Another issue is whether there is blood around the thorn that is found or not.  Regarding a needle in the reticulum, it is only forbidden when blood is present.  Was Ullah discussing a case where there is coagulated blood or one where there is no coagulated blood?   Rashi, the Rashba, and the Rambam all understand Ullah as discussing a case where there is neither a drop of blood nor coagulated blood (koret dam), as the esophagus is an area in which liquids are constantly washed down or washed away. Tosfos, on the other hand disagree and state that Ullah even permits it when there is blood present.

Yet another issue is the position in which the thorn is found in the esophagus.  Was it found in the length of the esophagus or in the width?  The Rambam rules that if it is found in the length, then it is not a problem.  This would make for some more room for leniency, however, there is a debate as to how to understand this Rambam.  The Kesef Mishna understands the Rambam to mean that anytime it is found in a sideways position it is considered as if it is lodged.  The Radbaz understands the Rambam to mean that whether it is found lengthwise or widthwise as long as it is not lodged in the esophageal membrane it is permitted.

The Shach (33:21 and 23) rules that essentially the Ramah is in agreement with the Shulchan Aruch’s position, but he is merely providing the rationale why some people are lenient.  The Ramah does require that the veshet be checked because the percentage of problems is significantly higher with force-fed geese.  Nonetheless, he writes that it is preferable not to check them then to check them and ignore the problems.

The Bach was very stringent on these issues and forbade the process.  Indeed, he writes that if he had the power he would abolish force-feeding from the nation of Israel.  On the other hand, the Bach’s own son-in-law, the TaZ (33:18), was lenient on the issue of force-fed geese.  He ruled that, in fact, the examination of the esophagus can be performed on the outside.  He bases his leniency on the view of Tosfos that when in the inner hole is not detectable on the outside and it was due to a physical injury as opposed to an illness, then we do not assume it penetrated to the outside.   The Shach in the Nekudas HeKesef, however, disputes the Taz’s understanding of the Tosfos as it applies to force-feeding.

Regardless, food items found in the esophagus are not rare occurrences when dealing with force-fed animals.  While the percentage of problem cases varies widely between shlochhousen, it is clear that running a completely smooth operation can sometimes be difficult.

OTHER TREIFOS COMPLICATION

The force-feeding may cause other problems as well.  Quite often, force-fed animals have difficulty eating regularly.  This difficulty may, in and of itself cause Treifos complications above and beyond the idea of a thorn found in the esophagus, because the geese cannot last much longer after they have been force-fed three pounds of feed for three weeks.  The Darchei Teshuva (YD 33:132) cites the view of the Aishel Avrohom that if the force-feeding were to cease the geese would certainly not last twelve months.  Another issue backing up the view that there are other complications is that it is alleged that many of the force-fed animals can barely walk.  This may be indicative of an underlying Treifos issue.

THE VIEWS OF THE ACHRONIM ON FATTENED GEESE

There are essentially three views in the later Achronim regarding the halachic implications of force-feeding geese.

The lenient view of the Ch’sam Sopher (explained in Shaarei Tzedek YD #44)  where one must just examine the inner section of the esophagus.  If it is punctured or damaged only on one side, he permits it and we are not concerned that it did in fact puncture the second layer.

Indeed, the Chsam Sopher’s students helped normalize the practice for those people who were hesitant in adopting the older German Jewish custom of consuming it.

There is the Mahari Assad’s view that one must examine the outer layer from the inside of it, and even if the white underlying layer is punctured, the bird is considered Kosher.  Rav Vosner (YD VIII #153) recommends relying on this view, in light of the fact that both the feed as well as the process of feeding have been modified.

And finally, there is the view of the Sephardic and Chassidic authorities who do not allow the consumption of force-fed geese at all.

Many Litvisha Poskim also disagreed heavily with the practice.  Rav Tzvi Pesach Frank (Responsa Har Tzvi YD #26) writes that it has never been the custom in Israel to allow force-feeding and tells the questioner that it would be a good accomplishment if he succeeded in having the practice discontinued.  The Chazon Ish was also strongly opposed to adopting this practice within the borders of Israel as reported by Rav Vosner (Shaivet HaLevi YD IX #153).

It should also be pointed out that the careful examination of the esophagus discussed in the Achronim was in a reality far removed from the mass commercial production of modern times.  It may be a simple matter to check one or two esophaguses.  It is quite another matter when checking the body parts of over one thousand slaughtered birds a day.

It is interesting to note that Rav Ovadiah Yoseph (Yabia Omer Vol. IX YD #3) also strongly condemns the practice – but not just because of the issues of Kashrus.  He brings into the equation the issue of Tzaar Baalei Chaim.  Although he addresses the fact that the logistics of the process have improved significantly, he still writes that there are still serious sfeikos (questions) on the matter.

AUTHOR’S CONCLUSIONS

So what are this author’s conclusions?  Personal observation of the ducks being force fed is that there is absolutely no issue whatsoever of Tzaar Baalei Chaim here.  Although some contemporary Poskim mention the Tzaar Baalei Chaim issue, the author’s conclusion is that these Poskim have not spent time in such a processing plant.

Nor is the issue of the shape of the fowl after it is force-fed an issue.  The fowl, in the manner, that it is force fed today does not produce an out-of-shape product.  They can walk and move around just like regular geese.  And they do.  They move around freely in their pens and there is plenty of room for the fowl in their pens as well.

Indeed, in this author’s opinion, all non-Jewish chicken farms have by far much more real and significant problems of cruelty to animals.  The overstuffing of the chicken into small areas, their exposure to their own fecal matter, and the rough treatment by the workers are by far more significant issues.

And, by the way, economically it is easily understood why there is such a disparity.  The wholesale price of a chicken is a few dollars a chicken.  The wholesale price of a fowl raised for foie gras is over one hundred dollars.  Why would the owners of such an industry place the geese or the business at any risk whatsoever?

Rav Yirmiyahu Menachem Cohen, the Av Beis Din in Paris, France and author of the five volume responsa work “V’heerem haKohaim” in a conversation with this author came to the exact same conclusions.  In short, we have been duped.

The halachic issues of a concern for halachic treifos, however, may be another matter. This author has two concerns from a treifos perspective.  The first concern is that perhaps the feeding pipe may scratch or wound the esophagus on the way down.  The second concern is that somehow, the food may come back up and get lodged in the esophageal lining.

This author did see, occasionally, food in some of the necks of the fowl in the treif plants from a previous feeding.  The workers feel for this in the fowl and do not proceed with the feeding if it is still there from the previous meal.  How does the food get there?  Apparently, at times, the food will come back up through the esophageal tract.

The proponents will argue that there are enough bodkim present to ensure reliable oversight of the process.  Rav Cohen explained that the use of a specially softened pvc material for the pipe lessens the incidence of such damage significantly, and states that the treifos concerns are negligible.  This seems to be the case regarding the OU supervised foie gras as well.

While one can debate the treifos issues, it is this author’s view that the Tzaar Baalei Chaim issues constitute a form of Lashon Harah on the industry.  Steps should be taken to rectify this injustice.

The author can be reached at [email protected]