Kosher Pickle

When presented with packaged food, my 5-year-old niece will carefully examine the label, looking for the symbol that assures her it's OK to eat: a U inside a circle, which certifies that the food has been prepared according to Jewish dietary laws, under the supervision of the Union of Orthodox Jewish Congregations of America. She will not accept a mere K, which represents the manufacturer's unverified statement that the product is kosher.

You might think that if a preschooler is capable of making such distinctions, so is the average adult, observant Jew. But some people don't want to take any chances. For decades regulators in 20 states have inspected businesses selling ostensibly kosher food to make sure they follow the laws of kashrut—which, among other things, forbid certain categories of food, require the separation of meat and milk, and specify procedures for slaughtering and preparing meat.

The New Jersey Supreme Court recently overturned that state's kashrut regulations as an unconstitutional establishment of religion. A hot-dog vendor has brought a similar challenge against a Baltimore ordinance, and the case is pending in federal district court.

Both cases hinge on subtle and complicated analyses of what constitutes a secular legislative purpose, an advancement of religion, or an excessive entanglement with religion. But they also raise a question that the courts have not been asked to decide: Is there any area at all where consumers can be expected to look out for their own interests?

The defense of state intervention in the kosher-food market, where information is readily available and consumers are highly motivated, illustrates a disturbingly common regulatory mindset—the same mindset that insists that consumers need to be protected from bad haircuts, cannot deal with incomplete nutritional information (such as "no cholesterol"), and don't recognize the hazards of submerging electrical appliances in water. "If the state doesn't regulate, consumers will have no assurance that a food is really kosher," said Nathan Lewin, an attorney for a Jewish group that supports state supervision, in an interview with The Washington Post.

Even if you know next to nothing about kosher food, you might wonder how observant Jews managed to get by for thousands of years without the assistance of agencies such as New Jersey's Bureau of Kosher Enforcement. And if you're familiar with the dining and shopping habits of Jews who keep kosher, you will recognize that Lewin is—well, exaggerating would be a nice way of putting it.

As my niece could tell you, Jews rely upon certification by religious authorities to determine whether something is kosher. There are more than 100 kashrut supervision services worldwide. In addition to organizations such as the Orthodox Union, individual rabbis often serve as supervisors, or mashgichim. In Los Angeles, for example, two local organizations and several independent mashgichim certify bakeries, butcher shops, and restaurants. Supervision generally involves a full-time employee trained in the laws of kashrut, supplemented by outside inspectors who make surprise visits on a regular basis. If you want to know whether a business has supervision, you can ask to see its certificate, which is usually on display.

The Post reported that the New Jersey Supreme Court's decision "may mean consumers determined to keep kosher may have to do a lot more homework themselves on the products they buy." In fact, observant Jews in New Jersey and elsewhere will continue to do what they have always done: look for the mark or certificate showing that a product or establishment passes muster with a religious authority they trust. This is really not so hard or complicated, especially when compared with the intricacies of Establishment Clause doctrine.