There has been a recent worldwide boom in the gourmet food delivery market. Australia has also experienced tremendous growth in this industry. Take-away has traditionally been limited to lower end food establishments, but now, through third party delivery services, one can enjoy a meal from the fanciest restaurants in the comfort of one’s own home. This article will explore the significance this advent has for the conscientious Kosher consumer.

Before we can fully appreciate the Kashrus implications of deliveries we need to understand the following fundamental concept.  There exists a common misconception regarding the role of the Kosher certifying agency.  Many people think that having a product under certification makes that product Kosher.  This is not true. In reality the Kosher status of the product exists with or without Kosher certification. Kosher certification is there only to bear witness to the fact that the product is indeed, Kosher. This determination is in turn communicated to the Kosher consumer by way of a Kosher symbol on the packaging or some other medium.

The same applies to the food service industry. The Kosher certifying agency is responsible to put a monitoring system in place that will provide halachically sufficient ‘evidence’ that the particular establishment is, in fact, Kosher. How exactly these systems work is beyond the scope of this article.  What is relevant is that the system only applies when the food and vessels are under the auspices of the establishment which is in turn under the auspices of a Kosher certifying agency.  However, once food leaves the establishment, the Kosher status of the food is no longer necessarily guaranteed by the certifying agency.  For example, upon purchasing an item from a Kosher establishment one can remove the Kosher food and place a non-Kosher substitute in the original Kosher packaging.

In order to guarantee the Kosher status of a delivery a system has to be put in place that monitors the deliveries ensuring that there was no tampering with the Kosher product.  The Shulchan Aruch dedicates a number of simonim to this topic and based on that we will endeavor to give the basic picture of how the Kosher delivery system works.

Why Do Deliveries Need to Be Sealed?

Often Kosher food is more expensive than its non-Kosher alternative. Therefore, there exists a concern (1) that an individual will succumb to the temptation for financial gain and substitute the Kosher for non-Kosher.  He will then sell the Kosher product at a higher price and pass on the non-Kosher substitute as a Kosher item. It is for this reason that Chazal (2) require the food item be sealed in a way that ensures that no tampering has taken place.

The Mateh Yonasan (3) rules that this concern extends to situations of gain that are not directly financial.  For example, there might exist a concern that the deliverer will eat the Kosher food to satiate his hunger because that is all he has available and will later substitute what he has consumed for a non-Kosher product. 

Rav Hershel Schachter Shlita, senior posek for the OU, applies this to the following scenario (4). A retailer orders vinegar from a distributor. The non-Kosher equivalent of this product happens to cost the same as the Kosher one. One might argue that there is no need for the mashgiach to seal the Kosher vinegar at the distribution plant since there is nothing to be gained by switching the Kosher with non-Kosher vinegar. However, what happens if the distributor runs out of the Kosher vinegar? In this instance the distributor would have an incentive to substitute Kosher for non-Kosher vinegar even though they are the same price. His ‘gain’ is securing the trust of his clients, knowing they can always count on him to deliver the product they need when they need it. Rav Schachter rules that all such deliveries would need to be sealed in order to avoid the above scenario. In a restaurant delivery situation, if the food becomes damaged as a result of the deliverer’s negligence there would exist a concern that the driver would replace the item with a non-Kosher substitute in order to save face or possibly his job.

Our discussion thus far has been focused around the potential of gain from substitution. However, the Rama (5) goes a step further and require a seal even when there is nothing to be gained by switching the product. The Rama rules that if food was sent without a seal then, bedieved (after the fact) the food may be consumed if there was nothing for the deliverer to gain by switching the item. According to the Rama, in the first instance one would not be allowed to send an unsealed package even if there was nothing to be gained (6).

What Is a Chosem (Seal) And How Does It Work?

The definition of a chosem (lit. seal) is some unique label, closure or fastener attached to the packaging or actual Kosher food item or utensil in a way that the food is only accessible by breaking the seal.  The seals must be applied to each opening of the package.

The seal guarantees, from a halachic perspective, that no undetected tampering has taken place.  One who wishes to switch the food item will have to break the seal and then replicate the same seal in order for his fraudulent actions to remain undetected.  In order for the seal to be halachically effective, the forging of the chosem must involve a level of effort that will render the potential gain of substitution not worth the exertion of creating a forged seal.  Alternatively, the amount of time it would take to forge the seal would put the forger in danger of getting caught in the act. The seal is not there to physically prevent tampering, but rather to neutralize the advantage of tampering or identify if tampering has occurred.

It is important to note, that there are some food items that Chazal felt one seal would be insufficient and therefore required two seals.  The following items require a double seal.

1. Meat and poultry: All meat (beef, lamb, veal, etc.) and poultry (chicken, turkey, duck, etc.), as well as all products manufactured from these items must incorporate a double seal on the packaging.

2. Fish: Processed fish i.e., fish which no longer can be identified as a Kosher fish (e.g., skinless or minced) and fish roe (eggs)], must incorporate a double seal (7).

3. All non-mevushal Kosher wines.

The Need for Consumer Alertness

Kashrus, in general, does not require consumer participation. The Kosher certifying agency is there to ensure the Kashrus status of products and establishments and all that’s left for the consumer to do is enjoy the food.  Ensuring Kosher status of deliveries, on the other hand, requires an active role on the part of the consumer. Ideally the consumer should be aware of what kind of seal is being applied to the food item and should check to make sure the seal is intact (8). The consumer should experiment and see if he or she can access the food without breaking the seal. If the food can be accessed a Rov should be consulted as to the Kosher status of the food. The consumer is also encouraged to contact the relevant Kosher certifying agency and report his or her findings.  

Notes:

1. See Tosafos Avodah Zara 12a “ve’shadi”
2. There is a dispute amongst the poskim if food sent without the requisite sealing is prohibited Biblically or Rabbinicaly.  See Darchei Moshe YD Siman 65, Chochmas Odom, and Pri Megodim OC 445:4 (mishbetzos Zahav) who seem to hold it is a Biblical prohibition.  See Chelkas Binyomin 118 Biurim “Yayin” who brings a Taz and others who maintain that the food is only Rabbinicaly prohibited. 
3. YD 118:10
4. OU Document T-14
5. YD 118:2
6. See Biur HaGra who seems to hold that one may send lechatchila in such a case without a chosem.  But Rabbeinu Chananel as brought in Beis Yosef Siman 118 says that this cannot be relied upon lechatchila (in the first instance).  The Beis Yosef concurs with the Rabbeinu Chananel.  It is important to note that the Gilyon Maharsha YD 87:1 rules that if one relies in the first instance (lechatchila) on a bedieved hetter then the hetter does not apply.  Therefore, in a case where the restaurant or delivery service is aware of Kosher requirements and disregards them the hetter of the Rama would not apply.
7. There are two exceptions: 1. Any raw fish which can still be identified as a Kosher fish because it still has skin on (even on one side) need not be double-sealed. 2. Red or pink Salmon or trout – which, because of its red colour, can be identified as Kosher even without the skin on it – need not be double sealed.
8. Shach 118:15. See also Chelkas Binyomin 118:20, 25