מסקל Kosher Mezcal from Oaxaca, Mexico: Kashrut or Canard

By Alvin Starkman, M.A., J.D.

How Far Does Kosher Go?

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.

How Observant Must You Be?

Can those Jews who are “observant,” a loaded word in and of itself, confidently drink any mezcal, kosher via kashrut certification, and truly be assured that it is pareve (neutral) or otherwise drinkable? Should they be at all concerned regarding imbibing the agave distillate despite the label designating the contents of the bottle as COR, U, KA-Kosher, K, or another way of identifying the spirit as kosher? Is there another way of satisfying oneself that the spirit is drink-worthy by rules set out in the Bible?

Does Size Matter?

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 perhaps from the most traditional smallest scale production. The latter would likely 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.

Who Decides?

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, I would suggest that only a tiny fraction of the approximately 22% of American Jews who follow a kosher diet, would be uneasy if their spirits are not Certified Kosher.

Does Pareve Make it 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, typically takes it out of the category of being kosher. Or does it?

What Are the Rules?

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 latter chapter is more comprehensive and subsumes the former, and so its pertinent paragraphs (only) are reproduced hereunder:

1 And the LORD spoke unto Moses and to Aaron, saying unto them:

2 Speak unto the children of Israel, saying: These are the living things which ye may eat among all the beasts that are on the earth.

3 Whatsoever parteth the hoof, and is wholly cloven-footed, and cheweth the cud, among the beasts, that may ye eat.

7 And the swine, because he parteth the hoof, and is cloven-footed, but cheweth not the cud, he is unclean unto you.

8 Of their flesh ye shall not eat, and their carcasses ye shall not touch; they are unclean unto you.

9 These ye may eat of all that are in the waters: whatsoever hath fins and scales in the waters, in the seas, and in the rivers, them may ye eat.

10 And all that have not fins and scales in the seas, and in the waters, and of all the living creatures that are in the waters, they are a destestable thing unto you,

20 All winged swarming things that go upon all fours are a detestable thing unto you.

21 Yet these may ye eat of all winged swarming things that go upon all fours, which have jointed legs above their feet, wherewith to leap upon the earth;

22 even these of them ye may eat; the locust after its kinds, and the bald locust after its kinds, and the cricket after its kinds, and the grasshopper after its kinds.

23 But all winged swarming things, which have four feet, are a detestable thing unto you.

24 And by these ye shall become unclean; whosoever toucheth the carcass of them shall be unclean until even.

25 And whosoever beareth aught of the carcass of them shall wash his clothes, and 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, wherewith any work is done, it must be put into wáter, and it shall be unclean until the even; then it shall be clean.

33 And every earthen vessel whereinto any of them falleth, whatsoever is in it shall be unclean, and it ye shall break.

35 And every thing whereupon any part of their carcass falleth shall be unclean; whether even, or range for pots, it shall be broken in pieces; they are unclean, and shall be unclean unto you.

41 And every swarming thing that swarmeth upon the earth is a detestable thing; it shall not be eaten

Whatsoever goeth upon the belly, and whatsoever goeth upon all fours, or whasoever hath many feet, even all swarming things that swarm upon the earth, them ye shall not eat; for they are a detestable thing.

44 For I am the LORD your God; sanctify yoursleves therefore, and be ye holy; for I am holy; neither shall ye defile yourselves with any manner or swarming thing that moveth upon the earth.

46 This is the law of the beast, and of the fowl, and of every living creature that moveth in the waters, and of every creature that swarmeth upon the earth;

47 to make a difference between the unclean and the clean, and between the living thing that may be eaten and the living thing 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 paragraphs reproduced also includes additional rules which are particularly relevant 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 is in the Process

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.

Con Gusano?

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)?

Organic and Kosher Aren’t the Same

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 most 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.

Kosher at the Expense of Artisanal?

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 and reserved 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 these factories are the furthest removed from those of biblical times.

Traditional vs. Kosher

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. For example 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 extremely 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.

A Puff of Smoke

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?

Who’s Watching?

A kosher certification board member visits a palenque or factory operation, certifies the premises enabling proprietor and/or brand owner to put the kosher insignia on the labels, and then returns periodically for audits. The literature suggests that the representative may return once or twice a year for inspections, but depending on his schedule and the location of the operation, he may not.

What About the Tools?

The Old Testament would appear to approve of crushing the baked sweet agave by hand, provided the machete used to initially chop the maguey hearts has not come into contact with anything un-kosher. It could be ants when it was used to cut the firewood, or that coral snake. The wooden mallet of course must be free of infestation. The rule regarding utensils suggests that those which have come into contact with hot non-kosher food may not be used with kosher food. But hot is relative, and may include spicy hot. It is so confusing that for generations rabbis have been fielding questions from their congregants, seeking interpretations for biblical conundra on the topic of utensils, and of course much more. Now there are websites where those in the know are consulted for their expert rabbinical advice. To what extent, if at all, are campesinos and traditional palenqeros trained in such matters, or even consider kosherness in the course making mezcal? And even if they are, does one really think that they would thrust a machete into the ground ten times, each time into a different part of the earth, to return it to its usable status? It would appear that it is virtually impossible to meet any reasonable standard of kosherness when distilling in “earthen vessel” clay pots, since degree of hotness is not really an issue and given the frequency of the “detestables” flying around.

And the Animals?

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. The Bible 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 scriptures accord 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 the Sabbath and otherwise on religious holidays. This takes us along the industrialization end 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 often 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.

Are the Vats Kosher?

You can ferment in any receptable. Industrially produced mezcal employs iron and stainless steel, which presumably is not problematic. In and around the central valleys of Oaxaca, the traditional fermentation vat, the tina, is roughly 1,000 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, but then again the taste of the mezcal would be significantly altered. 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?

Lawn Fertilizer?

An owner of a particular Certified Kosher agave spirit has stated that he never allows his mash to ferment for more than seven days and relies only on airborne yeasts for fermentation. However, during the cold weather months it often takes more than two weeks to achieve prime fermentation, unless one adds a chemical compound such a lawn fertilizer to speed up the process. Would you want to drink that mezcal, favoring its kosher status above anything else, given that is is far from being anywhere close to organic or natural by virtue of that innoculation?

Do You Have to be Jewish?

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.

You Be the Judge

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 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 the Torah.

Is the Label Really Important?

Recall the continuum. Kosherness comes in degrees, as is evidenced by the fact that some Jews opt for trusting in one certification board versus another. 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 current day 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 supervision (remember that no blessing is required) and drink up: cheers, salud, l’chaim and quisbheú.