The Fundamental Question
Should someone be stigmatized because he has a conflict of interest? Apparently, the mainstream media feels this way and ethics review boards often highlight this as a red flag. People are not the only ones who are challenged by this issue. Organizations whose trust and authority hinge on an image of integrity must deal with perceived conflicts of interest, both on the corporate level and with regard to individual employees.
Food certification agencies, whether they oversee kosher, organic, non-GMO, gluten-free or a host of other popular standards1 must all face the inevitable question: How do they ensure that compliance judgements are based on whether the client is meeting its regulatory requirements, without regard to financial considerations?
Government bodies, such as USDA, FDA and health departments largely avoid this question – on the corporate level – because they are funded independently of the businesses they certify.2 Individual inspectors are screened to keep them from evaluating businesses with whom they have an outside relationship. However, governments are neither equipped nor qualified to service niche certification markets. Therefore, the job of certification falls to private sector organizations which must charge fees to remain viable. Given this arrangement, when choosing a certification to rely upon, consumers may wonder how compliance monitors maintain impartiality. How are they shielded from the monetary link between the certifier and certified company?
Deal-Breaker? Not Necessarily
If one adopts a perspective that all conflicts of interest are scandalous, then ultimately this question may remain an unresolved ethical conundrum. Yet, if one is open to a discussion on how certifying agencies can design and maintain systems to protect the integrity of the certification process, the result will lead to increased consumer confidence, lingering imperfections notwithstanding.
Contrary to assertions commonly espoused by skeptics and opponents, the existence of a conflict of interest is not necessarily a deal-breaker. In most cases, once the conflict is revealed the situation can be remedied by increasing transparency in other areas. A conflict of interest becomes an absolute disqualification only when public trust completely erodes.
A present example where conflicts of interest are tolerated, at least officially, is in the newly famous Title 18 Section 208 of the United States Code. This exempts the President and Vice-President from the restrictions imposed on government officials whose financial holdings can profit due to their position in public office. Apparently, the law assumes that if the electorate chose them to lead the executive branch they are considered sufficiently trustworthy to make decisions for the benefit of the nation and not their own pockets. (The Jewish stance is leiv m’lachim b’yad HaShem!)
In halachah, a conflict of interest is also not necessarily taboo. Rambam (Ma’achalos Asurus 8:7) rules that a butcher, without any oversight, is believed when he says he removed forbidden fats (cheilev) and the sciatic nerve (gid hanasheh) from meat that is sold by weight, even though doing so reduces his profits. Nevertheless, this trust is not automatic. The halachah includes a provision that the butcher must be a “person of upstanding moral character and muchzak b’kashrus – possessing an impeccable reputation in matters of kosher food production.”3 Elsewhere (Shechitah 10:14), Rambam writes that an established butcher of good repute, proficient in the laws of kosher meat production, can be trusted even when his primary source of livelihood comes from selling kosher meat. We don’t assume that financial gain will sway his kashrus determinations. In fact, some butcher shops in bygone communities in Europe and America were self-certified and did not carry outside supervision.
In his Pirush HaMishnayos (Bechoros 4:5), Rambam appears to take an opposing stance. He censures communities where the shochtim and bodkim (those who check for defects that would render the animal a t’reifah) are paid only when their work results in kosher meat, but not when the meat is deemed non-kosher. Even when the individual is known to be righteous, we are concerned that the opportunity to make money may sway him to improperly designate meat as kosher. Halachah mandates avoiding ch’shad, engaging in activity that onlookers may misconstrue as dishonest.
Accordingly, Shulchan Aruch (Yoreh Dei’ah 18:18) rules that shochtim be paid for their services regardless of the results. Apparently, one is not trusted to make a proper judgement when his livelihood is at stake. Eventually, this led to the widespread practice of appointing fixed wage community shochtim who function separately from the butchers. Nevertheless, later Poskim acknowledge a few instances in meat processing where the conflict of interest was never fully resolved and the food was still accepted as kosher.
The Rambam’s viewpoint is reconcilable. Aruch HaShulchan (18:43) writes that fundamentally (mei’ikar hadin) a knowledgeable, upstanding person is considered trustworthy and, unless otherwise demonstrated, the presumption is that he will not attempt to present non-kosher food as kosher for the sake of financial gain. Even so, communities throughout the centuries have enacted reasonable precautions to safeguard against the temptation of fraud. Many of these enactments were subsequently enshrined in halachah.
Exploiting halachic confidence to operate without outside certification comes with significant responsibility and risk. After establishing a person’s innate trustworthiness,4 Rambam proceeds to describe how if a butcher is found to be a charlatan a steep penalty is levied for even a first-time offense. The proprietor loses all kosher credibility and is forced to close his business. To restore his previous reputation, remorse and penance are not enough. He must move to a different location and exhibit unsolicited displays of honesty before regaining his former status.5
An advantage of retaining the services of a certification agency is that in the event a mistake is made, instead of being forced to leave town as the Rambam prescribes, the certifier can investigate the matter. If it’s determined that the proprietor acted in good faith, they can help formulate a plan to restore consumer trust. Another benefit to obtaining kosher certification is that even a business that is not staffed by people with kosher qualifications becomes eligible to produce kosher certified foods, provided it meets the certification requirements.
Even when there is no wrongdoing, a trust-based model doesn’t work in communities with large populations where the people don’t know each other very well on a personal level. Especially in today’s business climate, where products must reach a broad market in order to be profitable, it is impossible for customers to verify the good reputation and competency of every food provider. Therefore, credible kosher certification plays a critical role in the food industry.
In recent years, the secular world has joined the kosher bandwagon with a proliferation of other forms of outside food certification, comprising a multi-billion-dollar industry. Sales depend on good distribution abilities, and major food distributors and supermarket chains now carry only products from manufacturers with independently audited food safety and quality credentials.
I’ll Eat In Your House, Not In Your Store
Kosher certification fills a need for small-scale cottage industry businesses, as well. Many consumers innately recognize that commercially produced food should be certified, even when produced by friends or acquaintances, as the following anecdote illustrates:
A wealthy Eastern European Jewish businessman regularly visited his rebbeh, always bringing a gift of goose fat that he personally rendered. Years passed, the businessman’s fortunes declined, and he was left without a source of income. He approached his rebbeh for advice, who counseled him to transform his hobby of rendering goose fat into a commercial operation. Soon enough, the fellow was back on his feet with a new thriving business. During his next trip to the rebbeh, with a generous amount of goose fat in hand, he was astounded when instead of graciously accepting the gift the rebbeh asked him if his product had a hashgochah. For so many years the rebbeh accepted the gift based on personal trust alone! What had changed? The rebbeh gently explained to his chossid that the difference was quite simple. When rendering goose fat was merely a personal activity, his ne’amanus (halachic trustworthiness) was sufficient. However, now that it became a for-profit endeavor it needed a hechsher!
A request for certification is not a disparagement of one’s honesty. Au contraire, certification is offered only to businesses whose management is appraised as honest! The truism “locks are on doors to keep honest people honest” can be adapted to “food producers are certified to keep kosher food kosher.”6
Dealing with the Question
Once the necessity for the institution of a kosher certification agency has been established, let’s return to our original question: What measures can be implemented that will eliminate, or at least minimize, the inherent conflict of interest? Even if there is no halachic dilemma posed by a conflict of interest, and even if organizations were staffed exclusively with professionals possessing impeccable moral character, the Torah imperative of “v’hyisim n’ki’im” (Parshas Matos 32:22) enjoins us to bolster public perception and pre-empt suspicions of impropriety.
The Code of Federal Regulations (CFR) Title 21 establishes the operating rules for the Food and Drug Administration (FDA). Subpart M deals with, “Accreditation Of Third-Party Certification Bodies To Conduct Food Safety Audits And To Issue Certifications.” Section 1.657 is entitled, “How must an accredited third-party certification body protect against conflicts of interest?”7 These regulations primarily address safeguarding against individuals associated with the certifying agency from having any financial ties to the certified entity. They also set parameters of legitimate payment for services and disallow anybody working for the certifier from accepting anything that can be construed as a bribe.8
In the kosher certification sphere, the federal guidelines should be just a starting point for the agency’s organizational structure. Since kosher is, at its essence, a spiritual matter with ramifications on one’s soul and eternal relationship with the Creator, the expectations should be much higher.
In a democratic and capitalistic society, each organization is obviously free to determine their own guidelines in this realm. Moreover, just because a certifier implements tight protocols to guard from conflicts of interest, their actual kashrus standards could be quite lacking. Conversely, a certification may well deserve their excellent reputation despite a perception of having conflicts of interest.
With that disclaimer in mind, what follows are some observations that this author has noticed during his tenure as a kashrus administrator concerning how a kosher certifier can effectively counteract the perceived challenge:
Leadership – The leaders who form the backbone of the organization and set the tone in the workplace are known to be beyond reproach, setting a strong example in both their personal and professional lives. In the words of Yisro (18:21), “. . . sonay votzah.” (See Rashi, Devarim 1:15)
Separation of Divisions – The agency’s regulatory department must have independent authority, with autonomy to evaluate the merit of a certification based on compliance with the kosher system, without regard for financial repercussions.
Checks and Balances – All certification approvals or denials are reviewed by multiple parties. Also, there is a peer review system to continually monitor that policies are followed.
Numerical Strength – A large organization is adequately funded so that its operations and staffing remain unhampered, even if major accounts are discontinued. Its solvency does not depend on retaining any client.
Incentive-less – Although incentive models are a terrific way to motivate employees and make them feel appreciated for their hard work, no certification administrator should be rewarded for securing any client. There are also no consequences if a company is released for failing to comply with certification standards.
Anonymous Presentations – When questions arise regarding a company’s policy compliance, the core issues can be presented for adjudication by the certifier’s poseik (or poskim) without regard to the company’s identity, unless that is also a factor in the specific halachic decision.
Gift Acceptance – Kashrus professionals often work long and sometimes erratic hours on behalf of the companies they service, and their efforts are usually appreciated. A firm policy regarding acceptance of gifts must be in place.
Fee Structure – While we certainly take tremendous pride when our certified companies are successful, certification fees are a function of the resources required to administer the certification and maintain kashrus standards, not the company’s profitability.
Transparency – The certifier readily discloses its standards.
Conformance – While there is ample room for individual variances between hashgachos to meet a spectrum of consumer communities, the certifier adheres to a baseline standard in all circumstances.9
Disclosure – CFR Title 21 sec 1.657 part (d) requires that third-party certification bodies must maintain an up-to-date list on their website of all “the eligible entities to which it has issued food or facility certifications.” Similarly, reputable kashrus organizations disclose the identity of all companies enrolled in their certification program for public examination.
Non-Profit Status – A “for-profit” organization can operate with the same level of integrity and ethics as a “non-profit.” However, a “non-profit” is subject to additional oversight and external scrutiny that may contribute positively in preventing malfeasance.
Whether one is a lone rabbi in a small town who bears the responsibility of providing his community with kosher offerings, or part of a global organization overseeing networks of professionals stretching across continents, the method to resolve conflicts of interest is the same. Protecting the integrity of kosher certification is paramount, to the degree that financial issues do not even qualify as an “interest”.10 In the absence of competing interests, there is no conflict. A certifier who consistently functions with these principles will earn the trust and respect of both consumers and companies alike.
1. Including: food safety, fair trade, and ethical sourcing.
2. Although, government agencies encounter a different set of conflicts stemming from special interest groups, political expediencies, and bureaucratic roadblocks.
3. אין לוקחין בשר מכל טבח אלא אם היה אדם כשר ומוחזק בכשרות
4. חזקת כשרות
5. לשון הרמב”ם: ואם יצאת טריפה מתחת ידו מנדין אותו ומעבירין אותו ואינו חוזר לכשרותו עד שילך למקום שאין מכירים אותו ויחזיר אבידה בדבר חשוב או יוציא טריפה לעצמו בדבר חשוב
6. The experience of kosher certification agencies is that certification works only for businesses with a culture of rectitude. Once it’s demonstrated that the system has been compromised with malicious intent, no amount of oversight is effective.
7. Available at: https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfCFR/CFRSearch.cfm?fr=1.657
8. The one allowance mentioned is: “Lunch of de minimis value provided during the course of an audit and on the premises where the audit is conducted, if necessary to facilitate the efficient conduct of the audit.”
9. Membership in AKO (Association of Kashrus Organizations) requires a commitment to abide by a certain threshold of halachic application and administration expertise. Within AKO, a range of standards exists and there is no expectation of reciprocity. Additionally, member organizations may not use their admittance for promotional means.
10. See Remah, Yoreh Deiah 157:1 and commentaries regarding the obligation to absorb monetary loss instead of transgressing issurim. Causing others to eat non-kosher food involves numerous issurim.