Kosher Food Regulation and the Religion Clauses of the First Amendment

Abstract

The Jewish dietary laws dictate what foods are kosher, or fit for consumption. These laws are mainly spiritual. As one commentator has explained, the concept [of kosher] is in all truth a hard one to pin down. 'Kosher' is a late Hebrew word that does not occur in the books of Moses. Perhaps the nearest English word is 'fit' in the sense of proper or suitable. But the fitness, it must be clear, is mostly ceremonial.' An estimated ten percent of the nation's six million Jews regularly follow requirements.2 Kosher food comprises an almost $2 billion-a-year industry, that grew more than twelve percent in 1991.3 In 1991, approximately 6,200 firms nationwide produced kosher-certified products.4 Despite the spiritual nature of the Jewish dietary laws, many states regulate food to protect consumers against fraud. Kosher food laws generally prohibit the advertisement or sale of any food product labeled kosher unless it conforms to state-defined food preparation and handling requirements. A number of purveyors of food prosecuted under food laws have challenged the laws under the Religion Clauses of the First Amendment.6 Such challenges have met mixed success. This Comment analyzes the limitations imposed by the First Amendment on food laws now in force, and proposes a solution for regulating the food industry within those limitations. Section I describes the background of the Jewish dietary