Manuscript Proposal
Can You Believe It’s Kosher?
Trust, Reputation, and Non-Governmental Regulation in the Age of Industrial Food
Frequent outbreaks of foodborne illness and an endless parade of new food labels that
misrepresent processed foods high in fat and/or sugar as “natural,” “fresh,” and “healthy”
highlight the shortcomings of government food regulation and the inadequacy of industry selfregulation. By contrast, kosher food certification by independent private firms is highly reliable,
assuring compliance with religious standards of food production and preventing deceptive
marketing. The success of kosher food certification suggests that independent private
certification could improve food safety and labeling. This book traces the history of kosher food
certification in America from the widespread fraud and corruption that characterized the kosher
food industry a century ago to today’s network of over three hundred private kosher certification
agencies that is highly effective in protecting consumers. The evolution of America’s kosher
food certification system can help chart the course for successful food regulation moving
forward, and it can guide other areas in which this sort of “private regulation” could work better
than government regulation or unregulated free markets. As and example of “soft law,” the
kosher certification system should interest scholars in a wide variety of fields, including
economics, administrative law, political science, public administration, business, sociology,
international law, and jurisprudence.
Kosher food certification in America was not always so reliable. Fraud and corruption
plagued kosher meat production in the United States from the mid-1800s to the mid-1900s. The
New York City Department of Markets estimated in 1925 that forty percent of the meat sold as
kosher in the city was actually non-kosher. The industry was notorious for price-fixing schemes,
racketeering, and even murder for hire. The traditional means of regulating kosher trade in the
Old World was centralized communal control backed by government power, but this proved
impossible in America with its liberal individualism and free markets. The problem of kosher
fraud proved too big even for government regulators. The six full-time kosher inspectors in the
New York City of Department of Markets and the ten in the New York State Kosher
Enforcement Bureau by the late 1930s were insufficient to oversee the 18,000 kosher food
establishments in New York City. Reform finally came to the American kosher food industry
with the rise of a new regulatory institution: the private kosher certification agency.
This book tells the story of how private kosher certification agencies transformed kosher
supervision in America from a tool of fraud and corruption into a model of non-governmental
industry regulation. The book traces the origins of private kosher certification agencies to the
newly emerging market for industrially prepared foods at the turn of the twentieth century. It
shows how the expanding demand for industrially prepared foods among kosher consumers
facilitated the development of a new organizational and business model for kosher supervision
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that did not require centralized community control or government support. The book also
examines the gradual professionalization of kosher supervision, which fostered a sense of
professional ethics and personal integrity among supervisors, and the increasing
bureaucratization of kosher certification agencies, which provided institutional checks and
balances to prevent mistakes and misconduct. The book analyzes how this new breed of kosher
supervision professionals utilizes social networks based on trust and reputation to establish and
enforce what many have called the American standard of kosher supervision.
The story of kosher food certification in America offers an interesting case study of industry
regulation by private standards. Thinking about industry regulation among academics and
policymakers over the past twenty years has moved beyond the simple dichotomy between
command-and-control government regulation, on the one hand, and privatization, on the other
hand. Various “new governance” approaches have generated a broader array of options,
including public-private partnerships, negotiated rulemaking, tradable permits, performancebased regulation, and private standard setting. Of course, private standard setting is hardly new—
organizations such as the American National Standards Institute (ANSI) have long promulgated
standards relating to a wide variety of activities such as agriculture, mining, manufacturing, and
construction. Recently, however, private standard setting has received renewed attention as a
new governance strategy in areas such as nuclear safety, securities rating, and environmental
regulation. Understanding the conditions that favor private standard setting as a new governance
regulatory strategy requires careful attention to the details of its application in particular
industries. This case study of kosher food supervision focuses on how the nature of the regulated
industry, professionalization, bureaucratic controls, trust, and reputation help to explain when
and how private standard setting works.
To be sure, problems in the kosher food industry remain, and this book does not ignore them.
Fraud still occurs, and agencies engage in anti-competitive practices. But there is no denying that
the industry no longer suffers from the type of widespread dishonesty and corruption that was
rampant a century ago. While it is admittedly imperfect, today’s kosher certification system, by
and large, assures that food labeled kosher is kosher.
From a food policy perspective, the successful development of the kosher food certification
system is no small matter. Kosher food is big business. There are over 10,000 kosher producing
companies in the United States alone, making over 118,000 kosher products for over 12 million
American consumers who purchase kosher food because it is kosher. Only 8% of kosher
consumers are religious Jews—the rest choose kosher food for reasons related to health, food
safety, taste, vegetarianism, lactose intolerance, or halal. The U.S. kosher market is worth over
$12 billion in annual retail sales, and more products are labeled kosher than are labeled organic,
natural, or premium. Clearly, there is something about the kosher system that attracts consumers,
and helps to drive market share for the producers of such foods.
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The growing popularity of kosher food in America—most of which is driven by concerns
about health and food safety—is a response to a more general cultural anxiety about
industrialization of the food supply. Like the movements to eat organic, local, or ethically
produced foods, the turn towards kosher is, for many consumers, a way to personalize food
production. The image of a rabbi overseeing production—motivated by a deep religious
commitment to the ritual purity of food—diminishes the anxiety many feel about eating food
manufactured in factories using industrially produced ingredients. Ironically, the demand for
kosher certification among food producers is driven by the increasing industrialization of food
production (the more ingredients and processing, the more supervision required) while the
demand for kosher certification among food consumers is driven by anxiety about this very same
phenomenon. This book looks behind the public perception that kosher certification personalizes
industrial food production. The aim is not to debunk but rather to explain the actual mechanics of
kosher certification—its standards, administration, and self-regulation. In an age when
consumers demand a lot of information about the food they eat—what’s in it, where it comes
from, and how it is made—few people outside of the kosher food industry know much about
how kosher certification really works.
From a public policy point of view, kosher food certification offers a successful model of
industry regulation by private standard setting. A network of over three hundred private kosher
certification agencies oversees the kosher food industry in America, providing independent
private supervision that assures compliance with religious standards in food production and
prevents deceptive marketing. This system lends itself to a comparison between private standard
setting and governmental command-and-control regulation in the same regulatory arena, since
both kosher certification agencies and the Food and Drug Administration are engaged in the
same tasks—preventing adulteration and misbranding of industrially processed foods. The book
examines how private kosher certification agencies have largely overcome the problems that
have historically weakened FDA regulation of the food industry—problems such as regulatory
capture, inadequate inspection resources, and insufficiently powerful means of enforcement.
Kosher certification also lends itself to comparison with independent private certification in
other industries. Independent private certification is widespread in many fields of regulation,
including higher education, healthcare, and consumer product safety. The role of securities rating
agencies in the recent subprime mortgage meltdown demonstrates that independent private
certification can be a poor substitute for government regulation. By contrast, the success of
independent private certification in advancing sustainable forestry practices in the paper and
lumber industries is a recent example of regulatory success. Comparing kosher certification to
these other applications of independent private certification will help to identify the conditions
that favor its use as a regulatory strategy. Scholars have already begun this work in recent studies
of nuclear safety, securities rating, and forestry management. Several features of the kosher
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certification system make it a worthy candidate for comparative study in this emerging field—its
one-hundred year history, extensive network of hundreds of certifying agencies, unusual
combination of fierce inter-agency competition for clients and cooperation in enforcing shared
standards, and effectiveness in regulating one of the nation’s largest industries.
At a more abstract level, legal scholars have long studied the institutional aspects of law.
Intellectual movements such as Legal Realism, Legal Process, Law & Society, Law &
Economics, Public Choice, Behavioral Economics, and New Institutionalism have sought to
delve into the mechanics of how legal norms are generated, applied, and enforced. These
movements have asked probing questions about how different institutional arrangements
influence the operation of law and how the “law in action” really works. Working within this
tradition, scholars have recently begun to think about how government institutions construct
authority by means of professionalization, bureaucratization, public trust, and agency reputation.
This study of kosher food certification examines how these same components of government
authority can constitute private regulatory authority. The book offers an institutional perspective
on how “private regulation” works.
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