Can Traditionally-Made Mezcal be Kosher?

​Alvin Starkman, M.A., J.D.

Can Orthodox Jews confidently drink a traditionally made agave distillate, specifically mezcal, purported to be kosher via kashrut certification,  and truly be assured that it is pareve (neutral) or otherwise drinkable?  Should they be concerned regarding imbibing Mexico’s increasingly popular spirit despite the label designating the contents of the bottle as COR, U, KA-Kosher, K, or another way of identifying the drink as kosher? Is there another way of satisfying oneself that mezcal is drink-worthy by biblical standards?

A palenquero in a Oaxacan field is harvesting agave espadín destined to be distilled into kosher mezcal. He comes across a rattler or coral snake.  Can he kill the snake with the machete he is using to cut the pencas off the maguey?  I’m far from a Talmudic scholar or an Orthodox Jew, and I don’t even keep a kosher home, but I have been around the production of agave distillates in southern Mexico for more than a quarter century, so the question intrigues me.  More importantly it leads to the broader issue of the extent to which traditionally made mezcal, labeled as kosher, actually complies with biblical dictates.
 
It is suggested that perhaps the only really kosher mezcals, regardless of what’s stated on the label, are the most industrialized products in the marketplace, or from the most traditional smallest scale production. The latter would never find its way out of Mexico based on economies of scale. The corollary is that if the orthodox Jewish imbiber wants to drink artesanal or ancestral mezcal, he may not be enjoying what the Law of Moses suggests is the only spirit he should be ingesting.  It is submitted that rabbis, directors and employees of kosher certification boards, as well as owners of kosher mezcal brands and their palenqueros, have a vested interest in assuring the public that kosher means Stricly Kosher in compliance with accepted standards. Admittedly I’ve become more of a skeptic while a permanent resident of Oaxaca, and so interviews with any of the foregoing people regarding practices and procedures doesn’t satisfy my curiosity nor allay my trepidation.

The rabbinical certification of food to make it kosher involves ascertaining  that the food (or drink) has no ingredients or processes forbidden by Jewish law.  Nothing anyone can say or do, including a rabbi, can make non-kosher food kosher. There are organizations which monitor process, from the initial production stages to mezcal being packaged and ready to go on the shelf of the retailer.  The organization is then able to certify something as Kosher, with its icon clearly identifiable on a label.  But every organization has its own standards, and not all Orthodox Jews accept every board’s seal of (kosher) approval. In virtually every religion where there is ancient text, different groups, sects and individuals interpret some words, phrases and chapters, differently. So right off the bat we have the makings of a concern, for me an issue when it comes to passing judgment upon what is kosher. If you are Orthodox, perhaps no mezcal should be deemed Kosher. In any event, it is suggested that only a tiny fraction of the approximately 22% of American Jews who follow a kosher diet, would be uneasy if their spirits are Certified Kosher.

The agave, a succulent, is, in and of itself, pareve. It’s not meat, and it’s not dairy; nor has it ever swam, hopped, flown or slithered.  But what does happen to agave and with what it comes into contact in the process of becoming mezcal, in the lion’s share of cases takes it out of the category of being Kosher. Or does it?

Most of what can and what should never be consumed, and in what and when, is contained in Deuteronomy Chapter 14, and Leviticus Chapter 11. Different books in The Torah cover other related matters as will be explained further along. The former chapter is more comprehensive and subsumes the latter, and so is reproduced here in its entirety, for the sake of completeness, and to illustrate the breadth of The Law:
 
Leviticus 11 King James Version (KJV)
11 And the Lord spake unto Moses and to Aaron, saying unto them,
2 Speak unto the children of Israel, saying, These are the beasts which ye shall eat among all the beasts that are on the earth.
3 Whatsoever parteth the hoof, and is clovenfooted, and cheweth the cud, among the beasts, that shall ye eat.
4 Nevertheless these shall ye not eat of them that chew the cud, or of them that divide the hoof: as the camel, because he cheweth the cud, but divideth not the hoof; he is unclean unto you.
5 And the coney, because he cheweth the cud, but divideth not the hoof; he is unclean unto you.
6 And the hare, because he cheweth the cud, but divideth not the hoof; he is unclean unto you.
7 And the swine, though he divide the hoof, and be clovenfooted, yet he cheweth not the cud; he is unclean to you.
8 Of their flesh shall ye not eat, and their carcase shall ye not touch; they are unclean to you.
9 These shall ye eat of all that are in the waters: whatsoever hath fins and scales in the waters, in the seas, and in the rivers, them shall ye eat.
10 And all that have not fins and scales in the seas, and in the rivers, of all that move in the waters, and of any living thing which is in the waters, they shall be an abomination unto you:
11 They shall be even an abomination unto you; ye shall not eat of their flesh, but ye shall have their carcases in abomination.
12 Whatsoever hath no fins nor scales in the waters, that shall be an abomination unto you.
13 And these are they which ye shall have in abomination among the fowls; they shall not be eaten, they are an abomination: the eagle, and the ossifrage, and the ospray,
14 And the vulture, and the kite after his kind;
15 Every raven after his kind;
16 And the owl, and the night hawk, and the cuckow, and the hawk after his kind,
17 And the little owl, and the cormorant, and the great owl,
18 And the swan, and the pelican, and the gier eagle,
19 And the stork, the heron after her kind, and the lapwing, and the bat.
20 All fowls that creep, going upon all four, shall be an abomination unto you.
21 Yet these may ye eat of every flying creeping thing that goeth upon all four, which have legs above their feet, to leap withal upon the earth;
22 Even these of them ye may eat; the locust after his kind, and the bald locust after his kind, and the beetle after his kind, and the grasshopper after his kind.
23 But all other flying creeping things, which have four feet, shall be an abomination unto you.
24 And for these ye shall be unclean: whosoever toucheth the carcase of them shall be unclean until the even.
25 And whosoever beareth ought of the carcase of them shall wash his clothes, and be unclean until the even.
26 The carcases of every beast which divideth the hoof, and is not clovenfooted, nor cheweth the cud, are unclean unto you: every one that toucheth them shall be unclean.
27 And whatsoever goeth upon his paws, among all manner of beasts that go on all four, those are unclean unto you: whoso toucheth their carcase shall be unclean until the even.
28 And he that beareth the carcase of them shall wash his clothes, and be unclean until the even: they are unclean unto you.
29 These also shall be unclean unto you among the creeping things that creep upon the earth; the weasel, and the mouse, and the tortoise after his kind,
30 And the ferret, and the chameleon, and the lizard, and the snail, and the mole.
31 These are unclean to you among all that creep: whosoever doth touch them, when they be dead, shall be unclean until the even.
32 And upon whatsoever any of them, when they are dead, doth fall, it shall be unclean; whether it be any vessel of wood, or raiment, or skin, or sack, whatsoever vessel it be, wherein any work is done, it must be put into water, and it shall be unclean until the even; so it shall be cleansed.
33 And every earthen vessel, whereinto any of them falleth, whatsoever is in it shall be unclean; and ye shall break it.
34 Of all meat which may be eaten, that on which such water cometh shall be unclean: and all drink that may be drunk in every such vessel shall be unclean.
35 And every thing whereupon any part of their carcase falleth shall be unclean; whether it be oven, or ranges for pots, they shall be broken down: for they are unclean and shall be unclean unto you.
36 Nevertheless a fountain or pit, wherein there is plenty of water, shall be clean: but that which toucheth their carcase shall be unclean.
37 And if any part of their carcase fall upon any sowing seed which is to be sown, it shall be clean.
38 But if any water be put upon the seed, and any part of their carcase fall thereon, it shall be unclean unto you.
39 And if any beast, of which ye may eat, die; he that toucheth the carcase thereof shall be unclean until the even.
40 And he that eateth of the carcase of it shall wash his clothes, and be unclean until the even: he also that beareth the carcase of it shall wash his clothes, and be unclean until the even.
41 And every creeping thing that creepeth upon the earth shall be an abomination; it shall not be eaten.
42 Whatsoever goeth upon the belly, and whatsoever goeth upon all four, or whatsoever hath more feet among all creeping things that creep upon the earth, them ye shall not eat; for they are an abomination.
43 Ye shall not make yourselves abominable with any creeping thing that creepeth, neither shall ye make yourselves unclean with them, that ye should be defiled thereby.
44 For I am the Lord your God: ye shall therefore sanctify yourselves, and ye shall be holy; for I am holy: neither shall ye defile yourselves with any manner of creeping thing that creepeth upon the earth.
45 For I am the Lord that bringeth you up out of the land of Egypt, to be your God: ye shall therefore be holy, for I am holy.
46 This is the law of the beasts, and of the fowl, and of every living creature that moveth in the waters, and of every creature that creepeth upon the earth:
47 To make a difference between the unclean and the clean, and between the beast that may be eaten and the beast that may not be eaten.
 
Aside from some of the standard prohibitions of which virtually all Jews and most non-Jews are aware (i.e. against pork and seafood), the chapter reproduced also includes additional rules which are particularly pertinent to the thesis herein, regarding:

• flying insects v. those which hop such as our beloved Oaxacan chapulines (grasshoppers);
• slithering creatures such as snakes and our cherished Oaxacan gusanos (“the worm,” actually a larva);
• the use of utensils, pots and tools, which have come into contact with the “unclean” or “detestable.”​

Kosher beverages (and food) must start out as such, and follow a kosher process from start to finish, right up until and including imbibing that first sip of mezcal in an appropriate vessel.  Great care should be taken at each step begining with growing of the agave. Consideration should be given to the character of the raw material, tools and equipment used at every stage leading up to and including bottling, as well as  how the maguey has been harvested, cooked, crushed, fermented and distilled.  The transformation into mezcal should take place in facilities that have been retrofitted for kosher production.

From the outset, that is planting agave, there is an issue, even assuming that the seed, pup or hijuelo transplanted into a furrow where it will remain for the better part of a decade, is kosher.  When the small maguey is sown, the more industrialized operations may spray a bit of insecticide in each hole to assure no immediate infestation. Traditional campesino growers, and palenqueros producing artesanal or ancestral mezcal, likely will not.  There is a reasonable likelihood that flying insect and/or larvae infestation (i.e. the slithering gusanos), both un-kosher, will begin to interact with the piñas grown by traditional means. If a home remedy 100% natural insecticide is employed, do we have to examine the kosherness of the ingredients used to make it (i.e. how the garlic, the chiles and all the rest have been produced)?

The foregoing suggests that, contrary to some lay belief, there is not a relationship between on the one hand Kosher, and on the other certified organic, 100% natural, etc. Furthermore, the industrial mezcal (labelled by CRM dictates as simply mezcal, as opposed to artesanal or ancestral) which present-day mezcal aficionados loathe, is more likely than the others to comply with biblical standards. Traditionally produced mezcal indeed may approximate organic or natural standards, but tends to be further removed from the ambit of Kosher, right from the beginning. 

Taking The Bible literally, perhaps the only truly kosher mezcals are those produced in the most industrialized plants.  Sterility is maintained using stainless steel, versus clay or copper, diesel versus ant infested firewood, bleach versus cola for cleaning floors of concrete as opposed to dirt, and exacting particular tools designed for each specific task, versus our machete used to both cut agave and kill that (prohibited) snake. Nary a forbidden fly is found in such facilities.  Of course this is the furthest removed from factories of biblical times (or its subsequent composition).

Means of production and tools of the trade in agave distillate manufacture lie along a continuum. It is suggested that, regardless of Kosher certification,  in some respects the closer one moves towards the traditional mezcal production axis (coveted by many, and assumed to be more organic and natural), the less likely the spirit complies with strict biblical standards. Yet in other respects this doesn’t hold wáter.  If we move to the absolute smallest scale of production, the palenquero controls everything, from planting through to bottling. It’s his own agave, harvested from the quiote or transplanted from clones.  He simply cannot afford Kosher certification and his production is extremely limited, though he has the ability to be the utmost vigilant.  By contrast, those who produce Kosher mezcal may state that they examine every piña to ensure no gusanos have infested.  But can we really take at face value their assurances? They are successful business people. They, as most who now produce mezcal for export and many who do not, purchase piñas from growers, by the lot or three ton truckload.  Will they discard every piña where they see a gusano? And what about the piñas where the existence of gusanos cannot be readily detected? The non-Jewish grower just wants to ensure that he gets his fair price, infested or not. 

Ants, and well as other creepy crawlers and flyers often infest the logs used to bake agave traditionally in that conical shaped below-ground airtight chamber.  They are surely impacting the flavor and character of those pristine piñas. Is that permisible based on biblical dictates?

The Old Testament would appear to approve of crushing the baked sweet agave by hand, provided the machete used to chop the maguey hearts has not come into contact with anything un-kosher such as the ants when it was used to cut the firewood, and again that coral snake. The wooden mallet of course must be free of infestation. The rule regarding utensils is that those which have come into contact with non-kosher food may not be used with kosher food. This applies only where the contact occurred while the food was hot. How hot out does it have to be for a campesino harvesting agave with his machete, to kill a rattler then continue his harvest, and in good faith be able to maintain that his tool has remained “clean” throughout the day?

But when it comes to crushing traditionally, using a beast of burden, the Bible provides a complete code of conduct, regarding treatment of animals.  Chapters in Books such as Genesis, Exodus, Proverbs, Samuel, Deuteronomy and Leviticus instruct, as does The Talmud.  Jewish law  prohibits causing unnecessary suffering or cruelty to animals.  In many cases they are afforded the same sensitivity as human beings. They can be used to satisfy legitimate needs, like food for sustenance and clothing, and even within these contexts we must use and kill using the least painful way possible. Deuteronomy is specific in forbidding the muzzling of an ox to prevent it from eating while it is working in the field.

Now to the extent that The Bible accords animals the same rights as humans (i.e. resting on the Sabbath), palenquero compliance should not be problematic. However, can mezcal be considered Kosher at all if a horse, mule or team of oxen is used to mash the agave? After all, alcohol consumption does not satisfy legitimate needs, although a reasonably argument can be made for drinking wine on Friday evenings and otherwise at Sabbath. This takes us along the industrialization área of our continuum, where machinery is used for crushing and extracting the sweet agave juice. Even if we deem consumption of spirits as a legitimate need, horses are typically muzzled when crushing agave, so as to reduce the likelihood of them constantly having their heads down in an effort to consume that enticing caramelly maguey.

You can ferment in any receptable. Industrially produced mezcal employs stainless steel, which presumably is not problematic. In and around the central valleys of Oaxaca, the traditional vat is roughly 1000 liters and made of oak or pine. Pine can more easily become infested.  How does one prevent that from happening? Cedar is not typically used, but perhaps it should be. Depending on the time of year of fermentation, variously bees, flies and knats buzz around the containers, nourishing themselves by feeding off of the sweet agave which has had wáter added.  Yes, one can prevent that by using a metal mesh cover.  Has the vendor of that piece of equipment been eating pork just prior to lifting it off of his truck?

Can non-Jews even make mezcal? Wine made by non-Jews is prohibited. For agave distillates, assuming at face value they can be certified Kosher, which individuals in the production chain have to be Jewish, and how devout? I’ve never seen a campesino harvest agave in a field while wearing a yarmulka. Wine must be made by Jews because there is a restriction against using products of idolatry.  Wine was regularly sanctified for pagan purposes while it was being processed, and thus the prohibition. Should the rule apply to only wine, since mezcal, just as wine, is an intoxicant? Talmudic scholars have debated the suggestion that wine should be no different than whisky, rum and other non-grape based spirits.  Further discussion on the issue is beyond the purview of this essay.
​
Taking any ancient religious text literally is dangerous. When The Bible was written there were no exacting standards.  Sanitation and cleanliness were nowhere near where they are today.  We pick and choose what suits us.  It is not suggested that you should only drink industrially produced mezcal, but rather that that class of agave distillate more closely approximates what the drafters of The Bible had in mind. Satisfy yourself as a devout Jew, that the processes employed in producing your favourite artesanal or ancestral mezcal, meet your personal standards as you extrapolite them from Torah. 
 
Recall the continuum.  Kosherness comes in degrees, as is evidenced by the fact that some Jews opt for trusting in one Kosher certification board versus the other.  The system of defining which foods are kosher was developed by the rabbis of late antiquity, hundreds of years ago. Given that the word “kosher” means fit or appropriate in Hebrew, perhaps as long as one is confident of sanitary standards, and the treatment of any animal used in the process, that should weight more importantly than that little logo on the can of tuna, or bottle of mezcal.  Cleanliness is essentially irrelevant since we are dealing with a distillate. Know your palenquero, visit his palenque to assure yourself of his treatment of any beast of burden used in production, and don’t sweat the rest.  Conduct your own rabbinic supervisión (remember that no blessing is required to consider anything Kosher) and drink up: cheers, salud, and l’chaim. 

Alvin Starkman operates Mezcal Educational Excursions of Oaxaca (www.alvinstarkman.com). His sources researched and quoted are:
​
http://www.answers.com/Q/Does_a_rabbi_has_to_say_something_from_torah_to_make_food_kosher
http://www.myjewishlearning.com/article/kashering-utensils   
https://www.broadwaybasketeers.com/blogs/what-makes-something-kosher
http://kosherfoodsireland.com/does-a-rabbi-have-to-bless-food-for-it-to-be-kosher/
https://www.myjewishlearning.com/article/kosher-food/
https://www.kashrut.com/articles/liquor2/                  
http://www.jewmalt.com/category/kosher-spirits/mezcal/
http://tequilaaficionado.com/2015/12/14/big-business-kosher-tequila-part-iv/
http://www.askelm.com/doctrine/d040402.htm
https://www.jewishvirtuallibrary.org/overview-of-jewish-dietary-laws-and-regulations
http://www.jewfaq.org/animals.htm
http://www.jewfaq.org/kashrut.htm#Utensils
https://www.biblegateway.com/passage/?search=Leviticus+11&version=NIV