|Charting the Course of Orlah
Rabbi Tzvi Rosen, Star-K Kashrus Administrator; Editor, Kashrus Kurrents
Outside the Land of Israel, after addressing the problem of bug infestation, consumers are accustomed to treating fruits and vegetables as kosher without special certification. But while visiting Israel, or enjoying produce that has been exported from the Land, one must navigate the unfamiliar complexities of mitzvos hat’luyos ba’aretz (kosher laws relating to agricultural products). Unless one is proficient in these laws, he must be careful to partake only of agricultural products from which tithes (t’rumah, ma’aser) have been properly separated, and whose sabbatical year (shemittah) status has been verified.
Most restrictions pertaining to fruits infused with kedushas ha’aretz (sanctity of the Land) can be rectified to render them fit for consumption, sometimes with limiting conditions. An exception to this is orlah, fruit produced by a tree within its first three years from the time it was planted.1 Not only are orlah fruits prohibited to eat, one may not even derive any sort of benefit from them.2 The prohibition of orlah applies equally to trees that grow outside the Land as well, but certain leniencies mitigate the issue on a practical level. Therefore, our focus is on orlah as it pertains to fruits grown in Israel.
Managing orlah fruits in the marketplace requires thorough knowledge of the sophisticated agricultural methods currently applied in the orchards of Eretz Yisroel. These practices help to boost product yields and promote efficient use of resources, but complicate the ability to determine which fruits are affected by orlah. A major factor is that trees are now producing delectable fruit already in their second year. Furthermore, economics dictate that it costs more to harvest fruit from an older tree that has grown taller, thus, it is better to cultivate smaller trees by replanting them every few years. This causes the three year count to start again from the beginning.
To assist consumers, the Institute for Advanced Studies in Halacha for Agricultural Settlements,3 led by Rav Yosef Efrati, publishes charts which can be consulted regarding which fruits are affected by orlah. Unfortunately, these charts do not provide a simple ‘yes or no’ answer; instead, they offer information based on percentages. Therefore, to make use of these charts one must first understand some of the basic halachic background of how orlah is managed today.
At any given time, there is a mixture of orlah and non-orlah fruits in the marketplace. Undoubtedly, the non-orlah varieties comprise the majority, but the orlah fruits can form a significant minority. Poskim have adopted various positions toward this situation.
A possible lenient approach is purportedly offered by the Chazon Ish zt”l.4 He says we are allowed to look at each individual fruit purchased as coming from the majority, based on the rule of ‘kol d’parish mei’rubah parish.’ Therefore, if the majority of a particular species of fruit is not orlah, we may assume the fruit is permitted.
However, this leniency is limited by the rules of kavuah.5 Following the majority is only valid when the orlah status of a tree is not readily apparent at the time of harvest, and the doubt began prior to the fruit arriving in the store. Growers today are usually aware of which trees are orlah, and therefore one can no longer follow the simple majority.6
Nevertheless, a different lenient reasoning can be suggested. Namely, if the presence of prohibited items is deemed to be sufficiently small, one need not be concerned that his fruit came from that minority. What is the threshold for “sufficiently small’? Conventional halacha follows the view of Mishkanos Yaakov, who places the amount at 10%. Therefore, if orlah fruits from a given species are less than 10% of all available fruits of that type, one may purchase that fruit and ignore the minority of prohibited fruits.
Based on a variety of factors, Rav Elyashiv zt”l7 ruled that the percentage of orlah fruits among a particular species that would prohibit all fruits of that type is actually 5%. Research indicates that a presence of less than 5% indicates that the orlah problem exists only in specific localized districts and is not uniformly distributed throughout the country. Since we can ascertain that many regions do not contain any orlah fruits at all, fruit in the market is originating from a place which is only a safek (doubtful) status of kavuah. As such, the majority may once again be followed.
Another approach is to view the orlah and non-orlah fruits available in the market as one large mixture. The Mishnah8 teaches that when orlah fruits become mixed together with non-orlah fruits in a way that the two types are indistinguishable from one another, the orlah is nullified in a ratio of 200:1 or less. Thus, if it can be determined that the presence of orlah among all similar fruits is less than ½ %, one may purchase the fruit.
A very restrictive approach says that the presence of just one fruit bearing tree among a species establishes a state of kavuah for all fruits of that species. Only a comprehensive trace-back to a tree that is known to definitely not be orlah will permit the fruit.
The policy among most mehadrin kosher certifications in Eretz Yisroel is to permit the fruits of a variety only if the presence of orlah is less than ½ %.
As growers become more sensitive to the demand for orlah-free fruit they are taking measures to reduce the percentage of orlah in the market. One method used is to leave the saplings in tree nurseries for more than a year before being planted in the ground. According to some Poskim, the three year count begins from the original planting, so that after two years in the orchard the fruit no longer is designated as orlah. While the standard Rabbanut certify cation makes use of this leniency, the mehadrin hechsheirim do not and require that three years be counted after the tree has been planted in the ground.
The published charts are updated twice a year, for summer fruits and winter fruits, indicating the percentage of orlah in the field for each type. Attention should be given to the different varieties within a species since they may differ. For example, one type of peaches may be 7% and another type only 1%.
PROVIDE A WEBSITE FOR CONSUMERS TO ACCESS THESE CHARTS – check Magazine הליכות שדה published by מכון לחקר חקלאות על פי התורה based in מושב יד בנימין.
SAMPLE CHART with translations for Hebrew headings (% of orlah trees, month harvested, amount of dunam planted, how much fruit produced)
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 If a tree or sapling was transplanted, often the count must begin anew.
 Mishna, Orlah 3:1
 בית מדרש גבוה להלכה בהתיישבות החקלאית
 He viewed the leidas hasofek, the initial moment of doubt, as beginning in the store where the fruit was purchased. As long as more than 50% of this type of fruit is not orlah, we may assume this fruit came from the majority. See Chazon Ish, Yorah Dei’ah, Ta’aruvos 37:14. See also Yabi’a Omer 6:24
 Kavuah dictates that if the doubtful halachic status of an item begins in a location where similar items with a verified prohibited status have a permanent station, both possibilities (permitted and prohibited) are assigned equal probability. As such, it can no longer be assumed that the item in question was derived from the majority. The intricacies of these very complex halachos are discussed throughout the Talmud, see Kesuvos 15a, et al., and codified in Shulchan Aruch, Yoreh Dei’ah, section 110.
 The greater awareness of orlah among farmers and distributors, even non-religious, causes the doubt to born in the place of kevius, permanence, and therefore even the Chazon Ish would rule differently today. See Minchas Shlomo, 1:12 and 2:3.
 See Ashrei Ho’Ish, Yoreh Dei’ah, chap. 67, HaKashrus K’Halacha p. 588., Yedi’os Sadeh chap. 38.
 Mishna, Orlah 2:!