Are donuts made by a non-Jew a problem of Bishul Akum?

Question: Are donuts made by a non-Jew a problem of Bishul Akum?

Rav Ovadia focuses on the situation where non-Jews are making donuts in a Jewish home, but we will broaden the question to donuts made in Dunkin Donuts or some other commercial facility.

Introduction:

To properly understand this topic we need to distinguish between the halachic topics of בישול עכו׳׳ם and פת עכו׳׳ם. Bishul Akum refers to food cooked by a non-Jew, while Pat Akum refers to bread or bread family products baked by a non-Jew.

1.     בישול עכו׳׳ם – Food cooked by a non-Jew usually refers to any method of cooking other than baking bread products. This would mean boiling, deep frying, roasting, etc. of any non-bread products. This means that a Jew cannot eat any food cooked exclusively by a non-Jew. This applies whether the food is cooked in the Jews home, restaurant or any commercial facility.

a.     How to make the food considered Bishul Yisrael?

There is a big debate between Sefardic and Ashkinaz poskim as to how much does the Jew have to take part in the cooking process for it to be considered Bishul Yisrael? Sefardim take a much stricter approach, requiring the Jew to have an active role in the cooking process such as placing the food in the oven or mixing the ingredients, while Ashkinazim are more lenient and hold that as long as a Jew put on the oven or stove, the rest of the cooking can be done by the non-Jew. (It goes without saying that all other rules of overseeing the non-Jew to make sure only kosher ingredients go into the food must be strictly adhered to according to both Ashkinazim and Sefardim.)

b.     Other factors in Bishul Akum - as discussed in last week’s halacha, if a food is either נאכל כמות שהוא חי - edible raw or אינו עולה על שולחן מלאכים, wouldn’t be served on the table of a king it is not subject to the rules of Bishul Akum. CLICK HERE to read more about this in last week’s halacha. Presumably, donuts will fit into the category of being served at a kings table and thus subject to the laws of bishul akum (not withstanding the factors we will discuss below).

2.     פת עכו׳׳ם – This refers to bread or bread family products baked by a non-Jew. This halacha has an unusual history. The Talmud in Shabbat (17b) states that בית הלל ובית שמאי added a rabbinic prohibition to eating bread baked by a non-Jew. However, the Talmud Yerushalmi (Avoda Zara2:8) says that Beit Din revoked this prohibition, at least in part. They reasoned that bread was a staple of everyone’s diet and it wasn’t easy to find Jewish bakers who could bake enough for the community. Since there was not enough bread to go around, keeping this halacha would be unattainable. Based on the Talmudic principal of אין גוזרים גזרה על ציבור אלא אם כן רוב הציבור יכולים לעמוד בה (עבודה זרה לו.) – that Chazal only added prohibitions if the majority of the community would be able to keep it. While the prohibition would remain to eat bread baked by a non-Jew in his or her home, eating bread baked by a non-Jew in a commercial setting was permitted (obviously you still need a mashgiach to be sure all the ingredients are kosher).

What would be the halacha in a place where Pat Yisrael is readily available as it is today in Israel and in most Jewish neighborhoods in the NY Metro area and beyond?

Rambam says that the leniency of eating פת נחתום או פת פלתר, the bread of a non-Jewish commercial baker is only where Pat Yisrael is not available. Maran Beit Yosef rules this way in Shulchan Aruch as well. The Rema, however,  states that nowadays, this remains the halacha even in locations where Pat Yisrael is readily available. The Sefer K’neset Hagedolah is also lenient based on the logic that so long as the Jewish bakers cannot provide all the bread and bread family products for the entire neighborhood, the פת פלתר  remains permissible. (I would argue that since this halacha applies to all bread and bread family products such as cookies, cakes, pretzels, etc. there may not be enough of these available made by Jews or Jewish companies.) Rav Ovadia quotes other sources that agree with the more lenient approach and that it seems many Sefardic countries also followed the lenient approach and he himself says that is the Sefardic custom today. In short, this is why the minhag of most Jews today is to be lenient and buy bread, bagels, cakes, cookies, pretzels, etc. from commercial companies that adhere to all kashrut rules, but do not have Jewish bakers on premises. (i.e. Entenmann’s, drakes, Bachman’s, Arnolds, Lender’s, Thomas, etc.)

Answer:

Now let’s focus on the question of donuts made by a non-Jew. The real issue is do we treat donuts as a baked item or a cooked item? If they are considered baked, then there is much more room for leniency as we just discussed. If they are considered a cooked item since they are deep fried, then this will become more complex.

The ריב׳׳ש says that donuts that are deep fried in oil and have thin dough are not treated like a bread product, and is, therefore, subject to Bishul Akum. Thus, we could not eat these made by a non-Jewish baker (unlike “baked” products as discussed above).

The next point of debate requires a some introduction. We are all aware that when making a bracha before eating bread, we make המוציא לחם מן הארץ and when complete, we say ברכת המזון. We also know that when eating foods made with the five grains we say בורא מיני מזונות before eating them and על המחיה afterwards. There is a category of mezonot foods called פת הבא בכיסנן which is a big topic beyond the scope of this week’s halacha, but suffice it to say that although you make a בורא מיני מזונות on them and an על המחיה on them, if you eat a very large amount of them, you would actually have to say ברכת המזון and not על המחיה. Donuts fall into this category.

Based on this, Tosfot quote Rabbeinu Chananel as saying that any food that is in this category of פת הבא בכיסנן and would require bentching if eating a lot of it, would maintain the status of a bread product and NOT be subject to the rules of Bishul Akum. Maran Beit Yosef and the Rema rule this way as well. However, not all poskim agree to this. Maran Beit Yosef quotes other poskim who say that it is determined by the intent when it is cooked. So if donuts are deep fried in oil, which is considered a cooking process (not baking), it would be considered a cooked product and subject to bishul akum. This would also mean donuts would not be considered פת הבא בכיסנן so the bracha achronal would remain על המחיה regardless of how much you consumed.

Who should we follow?

Rav Ovadia says that since this is a subject of debate and it is not totally clear which opinion is correct, we should apply our normal rules of doubt, ספק:

1.     For brachot we should say ספר ברכות להקל  and we would not bentch on eating a large amount of donuts.

2.     For deciding if it should be Bishul Akum or פת פלתר, we can be lenient and treat it like a bread product. Thus bishul akum would not apply and if the donuts were made for commercial purposes they would be permissible.

Based on this, it would be permissible to eat donuts made in a commercial kitchen like Dunkin Donuts even if a Jew had no part in the process. This is because we treat it as a bread product which falls under the heter of פת פלתר.

As a side point, I would imagine that in Dunkin Donuts or other facilities under a local or national hashgacha, there probably is a Jew who turns on the fire as well.

a.     This would make the situation even better for Ashkinazim as even if you took the strict side and consider donuts not a bread item, they are now bishul Yisrael since a Jew turned on the oven.

b.     For Sefardim, this would raise an interesting issue as mentioned in the introduction, they generally require a Jew to have a larger role in the cooking process (like mixing the food or placing it in the over) to consider it Bishul Yisrael. However, Rav Ovadia in the next Teshuvah collects a number of reasons to allow Sefardim to be lenient as well.

Returning to the question of donuts made by a non-Jew in a Jew’s house (where we are certain all ingredients are kosher.) The only difference here is that it is in a private home and not a commercial setting, thus if treated as bread product, we still need a Jew to turn the flame on. If treated like a cooked item, Ashkinazim would be ok if the flame is turned on by a Jew. But what about for Sefardim?

Rav Ovadia quotes Tosfot who quote the Ra’avad who say that bishul akum only applies when the non-Jew cooks in his/her own home, but when cooked in the house of a Jew, there is no concern. Although the vast majority of poskim disagree with this opinion, we can combine this opinion with the doubt around whether donuts are subject to bishul akum at all. However, in this situation, since it is not a commercial bakery, Rav Ovadia only permits this if the Jew is sure to turn the flame on himself.

Summary:

1.     Donuts made by a non-Jew, but cooked in a Jewish home are permissible so long as the Jew lit the flame. This is a chiddush for Sefardim who otherwise would not be lenient by Bishul Akum if the only thing the Jew does is light the flame (as opposed to putting it in the oven or mixing the food).

2.     Donuts made in Dunkin Donuts or some other commercial bakery will be permissible on a number of levels.

a.     The company providing hashgacha will be sure to require a Jew to light the flame. In that case it is no different than being made in a Jewish home in terms of bishul.

b.     As stated above, we can assume that most poskim would consider the donuts a bread product and thus not subject to bishul akum at all. They would be subject to the rules of pat akum, which is permissible when baked in a commercial bakery.

(Summary based on שו׳׳ת יחוה דעת חלק ה׳ סימן נג׳)