As noted above, nearly one-third of the people who intentionally buy kosher food are Jewish. A fraction of these people work within the kosher food industry, as retailers, members of KSAs, or monitor- ing agencies.
There is a great deal of variance within the Jewish population with regard to knowledge of the laws of kashrus. Even those who ac- tively keep a kosher kitchen at home may not be experts on kashrus. The bulk of consumers who exclusively purchase and eat kosher food are the most sophisticated consumers within the entire industry.168
While many might not understand the intricacies of kashrus, these kosher consumers know more of the basic rules, recognize more of the KSA symbols, and are more actively involved in seeking out in- 166. Interview with consumers and consumer watchdogs (Fall 2002) (for interview clarification see supra note 5).
167. Dollars Spent, supra note 161; Kosher Today, The Kosher Food Market in the U.S.A.: Scope and Size of 2002 Market Who Are Looking for Kosher Products, at http:// www.koshertoday.com/resourcecenter/charts/scopeandsize.htm (last visited Nov. 2, 2003) [hereinafter Scope and Size].
168. Interviews with various KSA representatives, consumers, and consumer watch- dogs (Fall 2002) (for interview clarification see supra note 5).
dustry information than any other group.169 They comprise the major-
ity of subscribers to those publications monitoring and gathering in- formation and are the intended audience for the typical “kosher advi- sories and alert.”170
Not all Jewish consumers of kosher food are Orthodox, but most are. Not only do intra-Orthodox debates exist, there also are differ- ences between the standards of kashrus required by Orthodox and Conservative Judaism. Some may consider these differences negligi- ble; yet these nuances are very important to the observant individ- ual. And it is these types of differences that led to the current consti- tutional assault on kosher fraud statutes.
Kashrus standards vary by individual, as well as the amount of risk a consumer is willing to assume. Even with the supervising and certifying industry, no one can be one hundred percent certain that food is kosher, but this does not seem to deter most consumers. Though they would not identify it as such, most Jewish consumers appear to have adopted a negligence standard of observance: it is for- bidden to eat food that one knows to be or should know to be not ko- sher.171
Though the laws of kashrus do not explicitly require this level of observance, they do provide an analogous rule concerning mistake and nullification. As noted above, one may not mix meat and dairy products. However, if some milk is mistakenly added to a pot cooking meat, then that amount is nullified if it is less than one-sixtieth of the overall contents.172 This exception applies in cases of genuine
mistake, rather than intentional, reckless or negligent conduct.173
The laws of kashrus allow for certain other leniencies in the after- math of an honest mistake that is not the result of negligence, reck- lessness, or intentional behavior.174
169. Id.
170. Id.
171. Id.
172. SHULHAN ARUKH, supra note 24, at ch. 106. The principle behind this nullification is to prevent large quantities of food from being wasted by virtue of an accident. Interview with KSA representative (Fall 2002) (for interview clarification see supra note 5).
173. SHULHAN ARUKH, supra note 24, at ch. 106. If the mixing is intentional, no amount can nullify the impermissible combination. Interview with KSA representative (Fall 2002) (for interview clarification see supra note 5).
174. For example, imagine that three consumers each buy and eat one hot dog, hon- estly believing that the food is kosher. If it is later discovered that one of the three hot dogs was in fact not kosher, but no one can identify which hot dog it was, each consumer is per- mitted to assume that she was in the majority and purchased one of the two kosher hot dogs, even though it is a forgone conclusion that this assumption will be wrong as applied to one of the three. However, if a consumer learns that there is a one in three chance that the food he or she purchased or will purchase is not kosher, he or she may not simply as- sume to be in the kosher majority. Interviews with various KSA representatives (Fall 2002) (for interview clarification see supra note 5).
It is difficult to quantify the amount of harm done to the relig- iously motivated consumer who buys nonkosher food either by mis- take or through fraud. In some cases, the consumer may have paid a premium for the food to be kosher, so at a minimum, the damage would be the extra amount paid for a good not received.175
Beyond this, if a consumer brings nonkosher food into her home, it can set off a chain of transference and absorption problems that lit- erally can contaminate an entire kitchen.176 For the lucky consumer,
it is merely time consuming to restore the affected pots, pans, appli- ances, and utensils to their kosher status.177 The less fortunate may
find that these items need to be replaced entirely.178
Given the chain reaction that discovery triggers, it may appear that the kosher consumer is better off not knowing that she has pur- chased nonkosher food. After all, provided she has not been negli- gent, how could she possibly be held responsible for the fact that she has consumed, and continues to consume, nonkosher food? Nonethe- less, many observant Jews believe there is a spiritual harm that oc- curs when they eat nonkosher food, even if it was by accident and undiscoverable.179 An unknowing violation that affects an entire kitchen perpetuates this non-quantifiable harm indefinitely.