Is Canned Tuna Kosher? Rabbi Herschel Schachter
SUMMARY mgr - original
Tuna is a Kosher fish, it has fins and scales but how do we know what’s in the can is in fact tuna and not a less expensive substitute?
Kosher if we can’t see its scales?
Everyone agrees we cannot rely on the sayso of a non-Jewish fishmonger that a skinned fish fillet is from a Kosher variety of fish. Buying tinned fish should be no different. Rav Henkin therefore forbade canned tuna unless a Mashgiach verifies that it is Kosher. This means that a Mashgiach, a Jewish supervisor, who is able to inspect the fish for scales, testifies that they are Kosher.
This level of supervision is pretty much impossible to provide and almost all Kosher certifiers manage with alternative arrangements.
We will discuss the following issues:
A) Is it possible for later Poskim to permit that which HaRav Henkin z.I. already forbade?
B) Must each fish be examined to confirm it is Kosher? To what extent, if at all, may we rely upon the testimony of a non-Jew and the various quality systems applied in food processing plants?
C) What is the Halachic weight credibility of a professional?
D) What is the Halachic weight value of Rov, majority?
E) Are there any Kosher issues if the plant also processes non-Kosher fish? Is there a concern for Bishul Akkum?
A. Seeking an Alternative Pesak
The Gemara (Avoda Zara 7a) teaches that after receiving a negative ruling one may not seek an alternate authority for a permissive ruling. The Shach rules [YD 242:54] - Even where a second authority was consulted and allowed it, this ruling may not be followed.
Obviously, this does not mean that once a Posek has forbidden something, other Poskim may not disagree. It refers to a discrete ruling about a discrete item. One may not take a chicken that was ruled to be a Tereifah to a second Posek for a second opinion. One may however, take a different chicken with the same blemish to a different Posek. [I believe that it is permitted for someone else to take the first chicken to an alternative Posek, or for an alternative Posek to rule it is Kosher, buy it and eat it - mgr]
This is clearly the ruling of the Rama [YD 242:31] but in any case, it is clear that another Posek may permit it. Other authorities are entitled to argue with this first ruling, provided they are aware of the first Pesak. Besides, even Rashi was contradicted by his grandson, Rabbenu Tam, who ruled leniently.
Thus both Hagaon Rav Aharon Kotler and Rav Yosef Dov Soloveitchik, declared that canned tuna is permissible despite being aware that HaRav Henkin had already ruled that such fish may not be consumed; most likely because circumstances and the risk for substitution were negligible.
B. What are the Halachic requirements to determine that fish is Kosher?
The Gemara [Avoda Zara 39a] explains that fish are Kosher if the species grows scales only when mature, meaning we may eat these fish, even though we are unable to identify actual scales, because we identify its species. So, Halacha does not require actual observation of scales and fins. It is enough if other factors permit us to be confident that it is a Kosher species. The RaMBaM similarly rules about Chagavim [MAsuros 1:22] whoever is familiar with the species may eat them and those who are not must check for the features that indicate it is Kosher. Halacha requires that we have adequate and reliable systems to ensure confidence that it is a Kosher fish. [See Darchei Teshuvah 79 and 83: who explains that the commandment to examine and identify Kosher signs of the animals or fish we plan to eat, applies, as we see in the RaMBaM, only where we are unsure of their Kosher status. Those fools who take the risk of eating what they are unsure is Kosher, transgress this commandment even if fortune arranges they have eaten Kosher.
The RaMBaN (commentary to Torah) however, insists that we must identify scales and fins before being permitted to eat fish, yet the Chasam Sofer notes, as we did earlier, that fish may be eaten just by knowing its species will eventually grow fins and scales. See his resolution Shut YD 75. The Rivash (Responsum 192) also agrees with the RaMBaN, the Torah compels us, it would seem in all circumstances, to establish that fish are Kosher by inspecting it for fins and scales. However, Rabbi Schachter proposes that even the Rivash agrees that we need not verify fins and scales if it is extremely likely that the fish is Kosher.
C. Craftsman are careful to avoid wrecking their reputation and their livelihood.
Although the testimony of a non-Jew is generally not accepted, Halacha does accept that normal people do have some credibility because they are keen to maintain their reputation and preserve their livelihood. Therefore their testimony does carry in various instances, some Halachic legitimacy. In our case, since the brand managers are vigilant to preserve and enhance their brand’s integrity and reputation, they will not misrepresent their product. Their claim that they are selling tuna can be assumed to be Halachically accurate. Additionally, many governments today have enacted legislation and developed authorities to ensure compliance with, strict food and advertising standards and we may Halachically rely upon their compliance with whatever guidelines the government and its agencies require.
This Halahca relies not just on the fear of suffering a single financial penalty, which might be offset by a potential profit, but the ruin of the entire business. Furthermore, Halacha does not seek to provide absolute watertight guarantees - Halacha always follows the norm. Just as we do not check every single beast that is Shechted for every single possible blemish that may render it non-Kosher, Halacha relies upon what is normal - normal beasts do not bear such blemishes and therefore need not be checked.
Furthermore, in our case, the canning company’s success and profit depends upon efficiency. If other species fish enter the process, they seriously disrupt the operation of the plant that is configured for a specific type of fish, in our case a Kosher fish. So the manufacturers, in order to save money and maximise profit, take great pains to ensure that all other varieties of fish are excluded from the processing plant.
D. Applying the “Majority” Rule (Rov)
There are four classes of majority identified in Halacha.
1. A weak majority [51%] against a status quo situation (chazakah) are equally weighted (Tosafos, Avoda Zara 41b). Whilst it makes sense to presume things have not changed, a majority indicates the likely occurrence of a fact that will change the situation. Nevertheless, a weak majority is not compelling against the status quo.
2. A strong probability however, [Rabbi Schachter proposes 70% or 80% - see Tosafos Kiddushin 8oa s.v. SeMoch MiUtah LeChazakah] is compelling against the status quo. Nevertheless, if possible, verification should/must be sought if it is readily available.
3. An overwhelming majority [Rabbi Schachter proposes 90+%] is essentially an unchallengeable fact which requires no further verification even if it is readily available. This is explained in the Chidushei RaMBaN and in Milchamas to the first Perek of Chulin and is cited as the foundation for the ruling of YD 39:1; see Shach (ibid, no. 2)
4. There are probabilities of even greater likelihood and weight [one in a thousand] about which the Chasam Sofer rules [Response Chasam Sofer, YD 338, cited in Pischei Teshuvah YD 357:1] that it is wrong to seek further clarification [disagrees with Maharam Schick YD 244 - regarding the medical need for and purpose of Metzitza and whether it may or should be performed during Shabbos. Most authorities concur with Chatam Safer]
The majority of fish delivered for processing, after trapping and sorting, is clearly in the most powerful category of Rov; which completely relieves us from the command to examine for fins and scales just as we do not check for all forms of blemishes that make beasts Tereifa.
Responsa of Rivash
The Torah commands us to examine the characteristics of each bird to ascertain that it is not one the 24 non-Kosher species ... we must therefore be alert for any of the 24 species even though each constitutes a small minority except for the bearded vulture and the osprey which are completely absent from inhabited areas. However, in those places where these species are possibly found, then we must ensure that we can identify them and that they are not the birds we are taking for our food: as we say by animals "he must be capable of recognizing a wild ass" despite the fact that the wild ass represents an insignificant percentage of the total Kosher animal population.
The Rivash seems to be describing a situation where relying on probability, we wish to take any beast we are unable to recognise as a Kosher species [other than by examining its hooves and verifying it is a ruminant]; or bird we are unable to recognise as a Kosher species, other than by verifying it is not one of the non-Kosher species, and assuming it is Kosher because most of the birds and beasts in this vicinity are Kosher.
[mgr Kosher birds are defined in the negative, meaning there are 24 species listed in the Torah as being non-Kosher, all others bird species are Kosher. So we are not required to identify the Kosher bird but to identify that it is NOT a non-Kosher species. Therefore RaMBaM [MAsuros 1:15] Paskens, "Those who are familiar with the non-K species may eat any bird that is not of those species. And in any location [where they do NOT have this knowledge] they may eat those birds that are known as a tradition to be Kosher."]
A Fish called Chilek - Rashi’s Opinion
The Mishneh, Avoda Zara 35, states that we may not rely on the non-Jewish fisherman/fishmonger when purchasing Chilek. The Gemara [39a] and Rashi [35b] explain that although it is a Kosher fish, it is trapped together with similar looking non-Kosher fish and we are therefore obliged to verify its Kosher identity. Rashi adds that verification is required even if the risk would be only one in a thousand.
However, other than Rashi and the Or Zarua  the phrase "one in a thousand" does not appear in any other commentary, including Rashi on the Rif. Clearly, most commentaries disagree with Rashi on this point. When the probability is merely one in a thousand there is not even a rabbinic obligation to examine each fish.
Rav Schachter considers his most powerful proof from the Rashash in Succah 18A who discusses the Kosher fish, known as Shtinkes, and notes - these fish are frequently trapped together with small non-Kosher fish and the two are indistinguishable ... people assume the entire catch to be Kosher, no one objects, may G-d forgive us.
Yet the Rashash concludes that - Rashi in Avoda Zara defines Tzachante as Chilek, etc. [which develops scales only when older and is therefore a Kosher species but was nevertheless banned because they are commonly trapped with similar looking non-Kosher fish] Clearly, the ban is applied only when there is a risk of confusion between Kosher and non-Kosher fish. The Shach [YD 114:16] rules accordingly as does the Kaf HaChaim.
Thus, where there is no risk of confusion, we may Halachically assume that the fish we can identify by reason other than identifying its fins and scales, is Kosher.
Tuna are readily identified as tuna without risk of them being confused with a similar looking non-Kosher fish. So the Halachic discussion banning Chilek is not relevant.
Furthermore, the Halacha [Avoda Zara 39] concedes that those who can differentiate between the similar looking Kosher and non-Kosher Chilek fish, are to be relied upon - Chilek belonging to an expert [non-Jew] may be eaten.
E. Bishul Akum
Various foods cooked by non-Jews, including tuna, were prohibited by Chazal in order to maintain our social isolation from the host nations we were exiled amongst. This is known as the decree of Bishul Akum. The Minchas Yitzchak (3:26:6) based on two considerations rules that tinned tuna, which is cooked in the tin, is not banned by the decree of Bishul Akum.
A] Firstly, tuna is cooked by people unknown to the consumer, so the decree does not apply.
B] Secondly, tinned tuna is cooked in the tin with steam. Steaming, according to some Halachic authorities, is not included in the ban of Bishul Akum (Darkei Teshuvah: 14). Rabbi Ovadiah Yosef [Responsa Yabia Omer 5, YD 9] [mgr - furthermore, tune is broadly eaten uncooked, which completely sidesteps the entire Bishul Akum decree]
Flavor of Forbidden Foods
In factories that also process non-Kosher fish it is extremely unlikely that cross-contamination will occur. However, the same machinery is certainly used for processing them and Halachic does have concerns that flavour can be imparted via use of shared machinery. Halacha considers that machinery used to process hot non-Kosher food, will absorb non-Kosher flavour and impart that flavour to render a Kosher food, non-Kosher.
Chemists, food technologists, chefs and connoisseurs, all confidently assert that food flavour does not penetrate into and certainly does not pass through our cooking equipment. If they are correct, further discussion is pointless.
However, Halacha considers that flavor from non-Kosher foods can pass into and through food utensils and Kosher foods might be contaminated with non-Kosher flavour that have been absorbed by food utensils.
This absorbed flavour wanes after 24 hours from when it’s absorbed and like actual food, will contaminate only if it equals or exceeds 1/60th of the total Kosher product. In our case this includes the steam in the vessel.
Furthermore, the non-Kosher flavour is absorbed not into the vessel holding the Kosher food but into the rack upon which the tins are stacked. Non-Kosher flavor must pass through the steam before being absorbed by the cans. In this instance all authorities concur that there is no ban on using such equipment even when they have just been recently used.
Tuna is a Kosher fish. Halacha accepts the assurances that the product is authentically Kosher fish and not adulterated with non-Kosher fish.
The ban against eating Kosher fish (Chilek) applies only when the risks of confusing it with non-Kosher fish is significant.
Bishul Akum is not relevant in this case, neither is the concenrn for cross contamination or flavour transfer from non-Kosher fish.