Question: May one drink milk nowadays?
Short Answer: It is permitted to drink milk nowadays, despite that many of the cows are treifos, because extract of a treifah is only forbidden when it is extracted from an animal that is recognizable as non-kosher.
I. A Significant Problem
Rav Moshe Sternbuch (T’shuvos V’Hanhagos 5:245) asks whether it is permitted nowadays to drink milk. Many elderly cows – more than 50 percent according to Rav Sternbuch – are treifos nowadays. According to the Rambam (Hilchos Ma’achalos Asuros 3:6), milk of a cow that is a treifah is asur mi’d’Oraisa. If so, even though most treifos are visible, perhaps we should be strict and refrain from drinking all milk, lest it came from a cow that had an unnoticeable treifah.
Nevertheless, Rav Sternbuch cites the Piskei T’shuvah and Darchei T’shuvah, who rule leniently, even if treifos are common.
Rav Sternbuch suggests another reason to be lenient. Since the milk is processed in a factory before it is packaged, invariably the milk will all be mixed together in a vat or large container, with a majority of kosher milk. This renders any of the non-kosher milk “nullified,” as “min b’mino” (kosher and non-kosher mixture of the same type of item) is nullified based on a simple majority mi’d’Oraisa. Indeed, the d’Rabbanan requirement to have 60 times more kosher in order to nullify the non-kosher item is only applicable where there is definite non-kosher. It does not apply where, as here, the milk is only a “safeik” (doubt) whether it is a treifah.
But what about when the milk comes directly from a cow and is not mixed first with milk from other cows? Rav Sternbuch writes that he never heard of anyone who forbids such milk. Why not?
III. A Few Leniencies
Rav Sternbuch suggests a few leniencies. First, there is a halachic principle of “kol d’parish, mei’ruba parish” – that when you separate something from a group of doubtful objects, we assume that the separated item is one of the majority (and you did not choose an item from the minority). Therefore, we assume that milk that “separated” from this group follows the majority of milk/cows, which are kosher. Even though we generally do not apply this rule of “kol d’parish” to forbidden foods, here we may apply this rule, because the Pischei T’shuvah (Yoreh Dei’ah 79:2) limits the rule that extract of a non-kosher item is non-kosher to the issue of whether the extract may be eaten. It never becomes an “isur cheftza” – fundamentally considered non-kosher like the item that it was extracted from. Accordingly, there is a basis to apply “kol d’parish” by milk.
Second, Rav Sternbuch posits that an extract from a non-kosher animal is only non-kosher when it is clear that the animal that it was extracted from is non-kosher. This is derived from the Rambam (Hilchos Ma’achalos Asuros 3:1), who writes that the eggs (or any other extract) of the non-kosher animal yaanah are forbidden, but implies that the extract is only forbidden when it is like the yaanah – in other words, it is recognizable to all that it is a non-kosher item/animal. Accordingly, milk that comes from a cow whose kosher status is unclear and unrecognizable (i.e., whether it is a treifah) is permitted.
IV. Ramification of Such Leniency
Based on the second reason above, Rav Sternbuch explains a difficult machlokes between Rashi and his rebbeim. The Beis Yosef (Yoreh Dei’ah 39) cites the case where a shochet loses the lungs of an animal he just slaughtered and is therefore unable to check the lungs to determine whether the animal was a treifah. Rashi’s rebbeim ruled strictly that the animal is now forbidden. Rashi questions this ruling. The milk of this animal was permitted before it was slaughtered, so why should the animal itself now be forbidden simply because it was slaughtered and the lungs are missing?
Rav Sternbuch answers for the rebbeim of Rashi. There is a difference between extract (i.e., the milk) and the animal itself. As explained above, the extract is only forbidden where it is recognizable that the animal it was extracted from is non-kosher. Thus, the milk here was kosher before it was slaughtered; but the animal itself, now that the lungs are missing, is forbidden.
V. Final Word
In conclusion, Rav Sternbuch reiterates that he never heard of anyone in this generation or in previous generations who forbade drinking milk. However, perhaps the reason why it was never forbidden was because earlier generations had a smaller ratio of treifos. Nevertheless, the minhag is to drink milk.
Next Week’s Topic: Must you slaughter a kosher animal that will not be eaten by Jews but will instead be sold to non-Jews?