While thousands of kosher consumers in New York are left without protection from fraud, top state officials are headed in separate directions in their efforts to craft a new bill.
Days after the U.S. Supreme Court refused on Feb. 24 to hear an appeal that might have kept New York’s constitutionally shaky statute alive, Assembly Speaker Sheldon Silver and Attorney General Eliot Spitzer announced the formation of a broad committee to study the implementation of a new law.
That same day, Gov. George Pataki announced he would sponsor a measure that would immediately fill the need for kosher fraud protection while avoiding constitutional pitfalls. He was joined by Orthodox leaders and officials of the state’s Kosher Law Enforcement Division.
Relations between Pataki, the state’s top Republican, and Silver, a top statewide Democrat, have been increasingly tense as they battle over budget cuts, making it highly unlikely the two leaders will work together in the immediate future on the kosher issue.
"There is concern that the governor is going to promote a bill in the Republican-dominated Senate, while Shelly wants it to be more thought out, to make sure it is going to pass constitutional muster and does not look like the governor’s bill," said Menachem Lubinsky of Integrated Marketing, which sponsors the annual Kosherfest exposition and follows trends in kosher food.
"My fear is that at the moment, millions of consumers are not protected. Hopefully at some point they will realize they have to get together to come up with a bill that makes sense."
Lubinsky added that the stricken law affected not only Jews but Muslims, vegetarians, sufferers of lactose intolerance and others who take advantage of its enforcement for their own needs. Because many associate kosher food with higher quality, he said, "28 percent of Americans buy kosher products."
The state’s 88-year-old kosher law, which preceded statutes in 19 other states, was found by federal courts to have enmeshed the state in religious decisions by requiring adherence to "Orthodox Hebrew" standards.
Silver on Tuesday said he had held no discussion with Pataki or his aides about the kosher legislation since the Supreme Court announcement and had "no idea what the governor is doing."
The speaker dismissed Pataki’s press conference last week as "a political event to give political credit to people who are his endorsers … and have no basic knowledge of what the case is about."
Silver said he intended to convene a panel that included Spitzer; Nat Lewin, the lawyer who filed the stateís appeal before the Supreme Court; Marc Stern of the American Jewish Congress, which opposed the previous law; Rabbi Menachem Genack of the Orthodox Union’s kashrut division, and others.
"My approach is to put together people who have been involved in the case," said Silver. "I have no clue whether the governor has done that or not."
Silver said that while he was concerned about the current absence of a law, "We will work within whatever reasonable time frame it takes to do it right. I would rather have a law that is not subject to another challenge."
A Pataki spokesman had no immediate comment. But state Sen. Carl Kruger, a Brooklyn Democrat who crossed party lines to endorse Pataki last year and appeared with the governor at his press conference, said Pataki was ìvery intent on getting this thing moving. It’s incumbent on the speaker to move forward and not get involved in the petty politics."
Kruger said he had been set to introduce his own bill last week when the governorís counsel, Richard Platkin, called to invite him to the press conference.
"It’s not important who gets the credit," said Kruger, who said he initially wanted to use as a model the modified law adopted in New Jersey after it faced a similar court challenge in 1991.
The law passed in Trenton eliminates state inspections but requires merchants to specify what standard of kashrut they observe.
"The governor wants to go further," said Kruger. "What we are proposing is an advisory group to take away the policing powers of the Department of Agriculture and make the law a consumer protection bill, making it a felony to sell a product labeled as kosher that is not kosher."
The bill envisioned by Pataki would pass constitutional scrutiny by empowering the independent advisory group, rather than state officials, to make determinations about who is guilty of an infraction.
That proposal is similar to one announced this week by Lewin, an expert on legal-religious issues, and his son-in-law, Jules Polonetsky, a former commissioner of the city’s Department of Consumer Affairs. The two also favor removing the state from the business of policing kosher establishments, except in "aggravated cases" where prosecution is warranted.
But rather than create an advisory panel, Lewin and Polonetsky, in an outline sent to The Jewish Week, call for mandatory disclosure of merchants’ kashrut standards to be enforced "by individual citizens or by community groups or agencies."
Under the plan, private citizens or "watchdog groups" who spot violations, such as a vendor who fails to have or display a certificate, "would be authorized to send the offender a notice by registered mail, specifying the violation and its precise time and place. The vendor may choose not to contest the alleged violation, in which case he should send the complaining citizen or group a payment that for a first offender might be 10 times the price of the product that the complainant purchased or a fixed amount specified by the law.
"The complainant may then register the offense with the Consumer Protection Bureau, and if the offender repeats a violation, the fine should be doubled."
Lewin and Polonetsky also urge that no one be allowed to sell food as kosher without the certification of an "expert" whose credentials are available for public scrutiny.
"If they want, they can hire a Roman Catholic priest to say it’s kosher," Lewin told The Jewish Week. "But then the priest has to say how he is certified."
Any kosher food legislation would have to be agreed upon by both Silver and Pataki. The third man in the Albany troika, Senate Majority Leader Joseph Bruno, a Republican, is expected to follow Pataki’s lead on the issue.
But with the state facing its largest budget crisis ever, and so many contentious issues on the agenda, it’s considered unlikely that the speaker and governor will come to an accord any time soon on the kosher bill.
"The four major issues in Albany are the fiscal crisis, healthcare reform, rent protection and insurance reform," said political consultant Hank Sheinkopf. "Where does the kosher law fit in? Not at the top of the list."
Kruger said that if the parties were resolute, "We could theoretically have [a new law] on the books by next week. Right now there is an open window where [merchants] can do whatever they want."