The kashrus system we have in this country is somewhat counterintuitive. The incentives or negiyos are in the wrong places. If a hashgachah is being paid for by the establishment, does this not create an incentive for the kashrus agency to look the other way?
In the 1980s and 90s the field of accounting had a similar problem. False information was released on purpose and investors were doing business based on those falsehoods. Incomes were being misstated. Financial audit statements made companies look more profitable than they actually were. Companies would “forget” to hand over data, and as the deadline for reporting approached, accounting firms had to decide either to let it slide or lose their clients.
in 2002 the government passed the Sarbanes–Oxley Act, a U.S. federal law that set new and expanded requirements for all U.S. public company boards, management, and public accounting firms. The Securities Exchange Commission was charged with creating rules that would help companies comply with the new SOX laws, including criminal penalties for some violations. The biggest underlying problem was the structure of the industry. Companies hired accounting firms to certify their financial documents, but the companies were paying the accountants for that service. Other accounting firms would line up to take such business. The accounting firms felt the need to make their clients happy to keep their business and looked the other way on financial irregularities.
Sarbanes–Oxley created Hechsherim for the hechsherim, so to speak, to regulate this counterintuitive structure. The problems in accounting still exist. This week alone,SEC just came out with new regulations.
In 2009, researchers Bernard Lo and Marilyn Field published a book called Conflict of Interest in Medical Research, Education, and Practice. In the book, Lo and Field defined a conflict of interest as follows: “A conflict of interest is a set of circumstances that creates a risk that professional judgment or actions regarding a primary interest will be unduly influenced by a secondary interest.”
When the inspector is paid by the people he supervises, there is a risk that his judgment and actions will be unduly influenced. The health and safety of the restaurant consumers has been placed at risk. Indeed, the general public has also been placed in danger.
“I once heard a mashgiach refer to his ‘boss’ as the store owner and not the kashrus agency he was working for. As an auditor, I was horrified,” a friend of mine relayed.
The mashgiach is there to protect the public from eating non-kosher or questionable items just as the health inspector is there to protect the public from anything that can compromise their health and safety.
Rav Moshe Feinstein, zt’l
The gadol ha’dor of the previous generation, Rav Moshe Feinstein, zt’l, in his Igros Moshe (Y.D. Vol. IV #1:8) writes this very idea. Rav Feinstein states that the mashgiach should not be paid by the facility that is receiving the hashgachah, but rather should only be paid by the Vaad HaKashrus itself. He should have no direct monetary business dealings with the company.
Let’s imagine the following scenario involving a health department:
It was an innovative way of saving money. The municipality worked it out that they would outsource the financial cost of health inspectors. From now on, it would be the restaurants themselves that would hire the health inspectors. The restaurants would pay them, they would take out the FICA taxes, the worker’s comp — the restaurant would handle it all.
The move “worked wonders” for the state of health in the restaurants. Eateries that were previously designated with a C- rating were now rated A+. There were far fewer health violations to write up.
The above story of the health inspectors that were paid by the restaurants was fictitious. Unfortunately, the analogy to kashrus is anything but fictitious. Kashrus agency after agency coordinates the supervision in a manner that is in direct violation of this Igros Moshe and of common sense.
Foul-Ups
In recent years, there have been numerous instances of kashrus foul-ups. The situation is somewhat akin to the Wild West. Most people remember the treif chickens in Shevach Meats in Monsey, New York. There was Jin Glatt Chinese Kosher in Passaic, New Jersey, selling non-kosher meat. This went on for years and no one caught it. Stan and Pete’s — the main caterer in Johannesburg, South Africa — was found serving treif as well. There was Doheny Glatt in Los Angeles, California. These incidents happen again and again. Certainly there are kashrus foul-ups that we do not even know about.
An expert in the kashrus industry remarked: “It is not a question as to whether or not it will happen again. It is rather a matter of when it will happen again.” The community at large needs to speak up to prevent this from happening. Feeding tarfus to Klal Yisrael is not something that we should sit by and accept.
Just and Good?
The situation needs to be rectified. It could very well be that allowing a conflict of interest to continue may be a violation of the Torah prohibition of “v’asisa ha’yashar v’hatov — You shall do the just and the good” (Devarim 6:18).
The Ramban explains that the Torah gave this general mitzvah because it cannot relate all cases and eventualities that might arise. Therefore, the Torah covers all situations with a general instruction of acting in fairness and justness. In all his ways, the individual is bound to “the just and the good.” Many poskim point to this as the source of the obligation of acting lifnim mi’shuras ha’din, above and beyond what strict halachah dictates. How can there be an obligation of going above and beyond the law? Would that not, by definition, be a non-obligation?
In explanation as to why kashrus supervision continued to include an inherent conflict of interest, we turn to a position paper presented by an executive rabbinic coordinator at the ASK-RCA Yom Iyun held at OU headquarters in New York City on May 1, 2007.
The position paper stated as follows:
“It is self-evident that it is preferable that a mashgiach be paid by the kashrus organization and not by the supervised facility. Unfortunately, this is generally not a viable option for semi or full-time mashgichim of establishments because of insurance considerations.”
This author knows of at least a dozen insurance brokers that would gladly offer any hechsher insurance for a full staff of mashgichim. So “insurance considerations” probably refers to the kashrus agencies that cannot underwrite the payroll and its insurance if the restaurants are late in paying. This can be rectified if the restaurant is made to pay these fees in advance.
If kashrus is something we truly care about, then we really need to restructure things from the ground up. This cannot happen with the prevailing lack of transparency that exists in our kashrus system. What happens now is not ideal or acceptable. Let’s say, for example, that a non-kosher product is found in a restaurant. The mashgiach reports it to his supervisor at the hechsher (and even that is a maybe). The hechsher decides to fine the restaurant, sometimes to the tune of tens of thousands of dollars. We, the public, end up hearing nothing about it. And neither do the other organizations — and an opportunity to improve is lost.
Suggestions
The first suggestion is that we should raise funding to employ roving kashrus inspectors to supervise if the salads we are eating are being checked for bugs, and, if they are, to see if they are being checked adequately. They should be paid separately, perhaps through a network of wealthy individuals.
There is also another option regarding the Rav Feinstein issue. In the United States and elsewhere there are companies called PEOs, professional employer organizations. An employer can outsource employee management tasks to a PEO, such as employee benefits, payroll and workers’ compensation, recruiting, risk/safety management, and training and development. A PEO could be hired to manage all of a hechsher’s mashgichim.
Obviously, the issue should be addressed by kashrus associations.
Rabbi Hoffman can be reached at Yairhoffman2@gmail.com.