New York State’s kosher laws, rewritten in 2004 to make them a labeling and disclosure law, are constitutional, a Brooklyn federal judge ruled last week in dismissing a suit by the Commack, L.I., butchers who successfully challenged the original law.
“The act requires that manufacturers and packers of food represented to be kosher — and also retail vendors who package food for sale as kosher — label the food as kosher,” wrote Judge Nina Gershon in a 17-page opinion.
She rejected the claim of Commack Self-Service Kosher Meats that such a requirement discriminated against non-Orthodox Jews and their kosher food establishments.
Brian Yarmeisch, an owner of Commack Kosher, said he disagreed with the judge and would consult with his lawyer before deciding whether to appeal.
Yarmeisch, along with his brother, Jeff, and their mother, Evelyn, filed suit in 2008 after a state inspector entered their store and announced that he was there to verify that all products being sold bore acceptable labels and that it was “acceptably kosher.” They argued that by sending inspectors to kosher establishments to verify compliance with the law, the state had “renewed the accusation that the plaintiffs may not be reliable in matters of kashruth.”
Gershon pointed out that the state in its papers disavowed the inspector’s comments, saying he had no authority to verify whether food was “acceptably kosher.” And she noted that the inspector did not issue a violation.
“That an inspector may be mistaken as to the meaning of a newly enacted statute does not render the statute unconstitutional,” the judge wrote. “Because the state does not determine if a product is kosher under religious law, whether Orthodox or not, it does not create excessive state entanglement with religion. In sum, there is no danger here that the state will become involved in deciding what is or is not kosher or other questions of Jewish religious law.”
The earlier law that Gershon ruled unconstitutional, she said, had created “excessive” entanglements between the state and Judaism.
The new law, on the other hand, contains “no definition of kosher, and there is no mechanism in the act to evaluate whether a food product is kosher by any standard,” Gershon said. “The state cannot define what is and is not kosher because that is a matter of religious law. But the state is entitled to protect all purchasers of food represented to be kosher, whatever their religion, from fraud.”
The Orthodox Union’s Institute for Public Affairs issued a statement calling the court decision a “welcome development for kosher consumers in New York who, in addition to the work of hashgacha [kosher supervisory] agencies, can rely on secular law penalties to assure truth in labeling in the marketplace.”
Robert Dinerstein, the lawyer for Commack Kosher, told The Jewish Week that the law is “not a truth in labeling” statute.
“If anything, it misleads the public into believing that anything with a ‘k’ label is kosher,” he said. “In fact, it has to be something your rabbi says is OK even if it has a ‘k’ on it.”
Dinerstein submitted affidavits from four rabbis (three Conservative and one nondenominational) objecting to the law because it requires kosher establishments to do something Judaism does not require — put kosher labels on anything sold for off-premises consumption. In addition, they complained, it requires kosher stores to put kosher labels on products resold from someone who represents it as kosher even if they were delivered without a kosher label and even where no kosher label is required by Jewish law.
That means, Dinerstein argued, that all hard cheeses and marshmallows that are not marked kosher by the manufacturer but are deemed kosher by Conservative Judaism must have a kosher label on them if the store buys them in bulk and repackages them into smaller quantities for resale, he said.
In addition, Dinerstein said the law is also occasionally impractical.
“How do you put a kosher label on a hot dog and sauerkraut someone buys and walks out eating?” he asked.
The law requires also that basic information be filed with the state about the qualifications of the person providing kosher supervision, that it be posted on a publicly available database and that the individual’s name be posted at the establishment. The suit did not challenge those provisions.