Hard To Swallow: Controversies Over the Kashrus of Contemporary Toothpaste

May this special post be an iylui neshama (merit for the soul) of my dear mother, Mrs. Joan Maybruch, Yocheved Pesha bas Hillel a”h, on her yahrzeit (date of passing).

Is Kosher Toothpaste A Paradox?

Toothpaste is on a very short list of items that many people put into their mouth without a concern for kosher supervision. This is a curious phenomenon, because commercially made fluoride toothpastes contain glycerin. Glycerin is a syrupy, sweet liquid that can add both texture and taste to the paste. There are many sources for glycerin; some are vegetable and some are animal. Manufacturers frequently alter the type of glycerin they use based on the market price. That means that many products that have glycerin as an ingredient might contain a non-kosher meat byproduct, which is prohibited.

There are two angles from to explore this question. Firstly, toothpaste is not eaten altogether. It is just used in the mouth and expectorated. Does that pose a kashrus concern? Secondly, toothpaste is a non-food. Is there a need to be concerned about its kashrus?

Tasting a Non-Kosher Food Without Swallowing

The first issue, if brushing with toothpaste is considered eating, hinges on a century-old debate. The Talmud discusses an ancient practice of smelling the scent of wine with one’s mouth, without touching the actual beverage. Abaye prohibits smelling non-kosher wine and Rava permits it. Rava maintains that fragrance alone has no substance and cannot be considered non-kosher (reicha lav milsa hi). The Rivash (Responsum 288) notices that the Talmud stops short from allowing one to actually taste the wine, even if it would not be swallowed; it only permits smelling it. This implies that putting a non-kosher food in one’s mouth without swallowing it is prohibited.

The Rivash is curious as to why tasting non-kosher is prohibited, after all it is not full-fledged eating? He advances two possibilities. First, he suggests that it might go along the lines of the prohibition of eating miniscule amounts. Although halacha only exacts punishment for eating a specific amount of prohibited food, less than that is also included in the prohibition. This is termed chatzi shiur – less than the requisite amount. Similarly, the Rivash suggests that when one puts non-kosher food in his mouth, he is doing part of the act of eating, and it is prohibited. Chatzi shiur usually applies to eating small amounts, here it applies to a small part of eating. The Rivash then rejects that possibility. He highlights that the Talmud (Yoma 74a) explains why eating less than the requisite amount is still prohibited. If one would keep on doing the same act of eating, it can become a full-fledged violation of halacha. Therefore, even ingesting less than the punishable amount of a forbidden substance is prohibited, lest he continue. In contrast, putting something into one’s mouth without ingesting it cannot become a full prohibition. It requires a new action – swallowing – for it to become a prohibition. Since the act of tasting itself is not the same as eating, the Rivash shies away from saying that the Torah would prohibit tasting as a part of eating.

The second rationale the Rivash advances for prohibiting tasting without swallowing is that it is simply a rabbinic enactment. The Sages wanted to ensure that a person would not mistakenly swallow non-kosher, so they added a restriction on tasting, too. The Rivash concludes his responsum in favor of that logic. Tasting without swallowing is a rabbinic prohibition lest one come to swallow.

This ruling of the Rivash is codified by the Rama in Shulchan Aruch (YD 108, 5).

Two Are Better Than One

Although tasting without swallowing is prohibited, a fascinating leniency is advanced by Rav Menachem Mendel Krochmal of Nikolsburg (1600 – 1661) in his Responsa entitled Tzemach Tzedek. (This work is not to be confused with the work of Rav Menachem Mendel of Lubavitch (1789 – 1866) who also composed responsa entitled Tzemach Tzedek. Both authors had the same names and both chose the same titles because the gematria of “Menachem Mendel” is equal to that of “Tzemach Tzedek.”)

The Tzemach Tzedek (Responsum 47) was asked about the permissibility of a soaper tasting his soap while it was being made to check the ingredient proportions. The soap contained non-kosher fats, as well as ashes and lime. Although it was not a foodstuff, since it contained non-kosher, it might be prohibited to taste.The Tzemach Tzedek rules leniently. His logic is based on a combination of rabbinic prohibitions which synergize to make it permissible.

Firstly, soap is not fit for human consumption. The Talmud (Avodah Zarah 67b) rules that a prohibited food which becomes inedible is no longer forbidden. The Talmud hermeneutically deduces this from the unique phraseology used in the Torah (Devraim 14, 21). It describes that if one finds an animal that died without shechita in his possession, he should give it to a non-Jewish neighbor. The Talmud understands that the Torah is hinting that a non-kosher item remains non-kosher only as long as it is suitable to share with another person. When it decomposes or reaches an inedible state, it is not longer covered by the prohibition of non-kosher. (This is termed nosein taam lifgam.) Although a now inedible food is biblically permitted, it is still rabbinically prohibited. As mentioned, tasting a prohibited food without swallowing it is also rabbinically prohibited.

The Tzemach Tezek rules that those two rabbinic prohibitions combine to create permissibility. While the Sages prohibited ingesting inedible food, they did not prohibit tasting it without swallowing. Full consumption of an inedible food is rabbinically prohibited, but the Sages did not prohibit mere tasting of it. Therefore, the soaper may taste his soap.

Don’t Swallow!

The Nodah B’Yehudah (YD 52) clarifies the ruling of the Tzemach Tzedek. He accepts the permissibility of tasting non-food items theoretically. Yet, he is concerned that if one puts a non-kosher food into his mouth, it is almost inevitable that he is going to swallow some of it. Swallowing non-kosher is a biblical prohibition. Therefore, even if the food itself is inedible, the act that one is doing should be prohibited. How can one allow putting a rabbinically prohibited food in his mouth – if it will result in ingestion of a small amount? Consequently, the Nodah B’Yehudah maintains that when the Tzemach Tzedek wrote that one is allowed to taste an inedible food, he only meant to permit tasting it with his tongue, which will not lead to ingestion.The Tzemach Tzedek concurs that putting a non-kosher food in one’s mouth fully and expectorating it is still prohibited because it is inevitable that he is going to swallow some of it.

The Pischei Teshuva (YD 88, 1) quotes the Nodah B’Yehudah and disagrees. He maintains that when the Tzemach Tzedek permits tasting of inedible food, he even means inserting it fully into his mouth. It appears that the Pischei Teshuva is not concerned about the minute amount a person may swallow. SInce the prohibition of eating inedible food is rabbinic, the Sages did not include ingesting a minute amount while tasting in the prohibition.

In summary, in the view of the Nodah B’Yehudah, one may not put a prohibited food in his mouth, even if it is no longer edible, because it is inevitable that he is going to swallow a bit. In contrast, the Pischei Teshuva maintains that one may put food that is inedible in his mouth completely. Even if he swallows a bit, that is not included in the rabbinic prohibition of eating inedible foods.

Brushing With Toothpaste

This dispute has direct relevance for using toothpaste. Toothpaste contains abrasives, such as hydrated silica. This substance renders the toothpaste on the whole a non-food item. If it would contain animal glycerin it still would be rabbinically prohibited to eat, like any other food that is nosein taam lifgam. Yet, it would not be biblically problematic.

Consequently, it falls into the dispute between the Pischei Teshuva and the Nodah B’Yehudah. In the view of the Pischei Teshuva one may put it into his mouth and then dispose of it. Even if it is inevitable for him to swallow some of it, that minute amount was not prohibited by the Sages. However, according to the Nodah B’Yehudah, putting non-food items in the mouth past the tongue is prohibited. Therefore, one might not be able to use toothpaste that contains glycerin. Since toothpaste is a non-food that is rabbinically prohibited, he may not brush his full mouth with it because it is inevitable that he is going to swallow some.

[It is curious that Rav Tzvi Pesach Frank (Har Tzvi Responsum 95, where I first encountered the citations of many of these sources) writes that brushing teeth with prohibited toothpaste should be permissible even according to the Nodah B’Yehudah. Since one expectorates, even the Nodah B’Yehudah would allow it to be fully in the mouth. Yet, that sentence appears to be difficult to swallow. The Nodah B’Yehudah unequivocally rejected having non-kosher in the mouth beyond the tongue. He reasoned that one always swallows a bit. Consequently, Rav Tzvi Pesach Frank’s stating that even the Nodah B’Yehudah would agree that toothpaste may be used seems to go against the thrust of the Nodah B’Yehudah’s words.]

Rocky Ground

The second perspective that one can explore to allow using toothpaste containing glycerin is the rule of nullification. Halacha states that if a non-kosher substance is mixed with a kosher food, the mixture may be eaten if there is a ratio of 60:1 of kosher to non-kosher (Shulchan Aruch YD 98). That ratio does not usually exist in toothpastes. Even if it did, glycerin is intentionally added to the paste for taste and body and its effect on the mixture is noticeable. Therefore, it falls into the category of products that impact their mixtures (milsa d’avida l’taama) and is not nullified even after 60, as codified by the Shulchan Aruch (Rama YD 98, 8).

Yet, Rav Yaakov Kaminetzky (recorded in the footnote to Emes L’Yaakov YD 103) used an intriguing and novel idea to permit toothpaste with glycerin. He states that in most cases of halachic nullification, a proportion where the kosher food is in a simple majority to the prohibited food is permissible. There is no need for a ratio as large as 60:1. Halacha only demands a proportion of 60 in order to obliterate the flavor of the non-kosher food. If it would not give flavor, the simple majority would suffice.

Rav Yaakov maintained that in non-food items, a simple majority is always sufficient. Since it is a non-food, the addition of flavor by the prohibited food is irrelevant. Therefore, there is no need to have a 60:1 ratio. A simple majority of kosher to non-kosher is enough to permit using it.

Consequently, Rav Yaakov would say that as long as toothpaste is less than 50% glycerin, it is permissible. Since it is a non-food item, it only needs a simple majority to nullify the glycerin.

Not Too Abrasive

There are different approaches regarding if Rav Yaakov Kaminetzky’s fascinating leniency applies to contemporary toothpaste. When Rav Yaakov issued his ruling, there was a large amount of abrasive (originally calcium carbonate) in toothpaste. Toothpaste was mostly tiny pieces of mineral rock, with some glycerin, water, and other ingredients added. Rav Yaakov even refers to toothpaste as “stone.” In the toothpaste of Rav Yaakov’s day, the abrasive alone was enough to outnumber the glycerin; it was a direct majority in proportion to it. In that toothpaste, Rav Yaakov maintained that since it is mostly abrasive, there was no need for a proportion of 60.

More recently, the American Dental Association advocated severely reducing the amount of abrasive in toothpaste. The abrasive (now commonly hydrated silica) is much less prominent as an ingredient. It usually takes up no more than 20% of the volume of the toothpaste and does not have enough volume to halachically counteract the glycerin. Yet, aside from the glycerin and abrasive, the toothpaste contains halachically and gastronomically neutral ingredients such as water, fluoride, and flavorings. The volume of all the other ingredients compared to the glycerin is still greater than 50%, even though the abrasive alone does not outweigh it. Since the abrasive does not outnumber the glycerin, but the ingredients combined still do, may one use Rav Yaakov’s leniency that non-foods needs a simple majority?

Two major American Kashrus organizations, the Orthodox Union and the Chicago Rabbinical Council, maintain that Rav Yaakov Kaminetzky’s leniency would not apply anymore. They explain that because many of the other ingredients in toothpaste are easily ingestible and the non-food abrasive does not directly outweigh the non-kosher glycerin, Rav Yaakov would no longer say that a simple majority against the glycerin is sufficient.

One might cogently advance a different approach. Although the direct ratio of abrasive to glycerin has greatly changed, toothpaste is still fundamentally a non-food. The addition of even a small amount of silica, a mineral rock, should still warrant categorizing toothpaste as a non-food item. Since it is a non-food, it would governed by Rav Yaakov Kaminetzky’s principle that in non-foods a simple majority outnumbering non-kosher is enough to permit it. The abrasive and halachically neutral ingredients in toothpaste together may be considered a simple majority against the glycerin, rendering all toothpaste kosher.

Which Tube To Use?

In conclusion, toothpaste is a non-food, which still might be rabbinically prohibited. Yet, there are at least two reasons to permit toothpaste even if it contains animal glycerin:

• One does not swallow toothpaste but expectorates it. In the view of the Pischei Teshuva one may put a non-kosher non-food fully into his mouth. Yet, the Nodah B’Yehudah disagrees because one will inevitably swallow some.
• Toothpaste itself has a simple majority of kosher ingredients that can nullify the glycerin. Although the usual proportion that is necessary to nullify non-kosher taste is 60:1, Rav Yaakov Kaminetzky maintained that in non-food items a simple majority is sufficient.

Whichever toothpaste you use, I hope you have a lot to smile about!