Chametz after Pesach

Rabbi Cohen

After all of the Pesach dishes have been put away, we still have one halacha relating to Pesach which helps us hold on to the Yom Tov’s inspiration for just a bit longer.  That halacha is called chametz she’avar alav hapesach, which has taken on new forms in recent years.

General rules

The Torah forbids Jews from owning chametz on Pesach, and in order to discourage people from violating that issur, Chazal legislated that any chametz owned by a Jew on Pesach is forbidden forever to all Jews (Shulchan Aruch 448:3).  Not only may one not eat such chametz, known as chametz she’avar alav hapesach, but one may not even derive any pleasure/benefit from the chametz.  Therefore, if one accidentally purchased chametz she’avar alav hapesach, not only is he forbidden to eat the food, but he may not even return it to the store (as that’s a form of “selling” it to the storeowner) nor give it to a non-Jewish acquaintance (as that person will feel appreciative for the present). 

The only chametz which is forbidden after Pesach is chametz which the Torah forbids one from owning on Pesach; Chazal never imposed the penalty of forbidding chametz she’avar alav hapesach on chametz or mixtures of chametz whose ownership on Pesach is only forbidden mid’rabannan (Mishnah Berurah 442:1 & 447:101). Thus, for example, concerning containers of food which each contain less than a kezayis of chametz, there is considerable discussion in the Poskim as to whether the prohibition to own such a container on Pesach is d’oraisah or d’rabannan; and one ramification of that discussion relates to chametz she’avar alav hapesach.  Although some favor the stricter approach (see Graz, Kuntres Acharon 442:9, Chazon Ish 116:11, 13-14), Mishnah Berurah (ibid.) is lenient. 

In a case where the chametz is a tiny portion of the food (less than 1/60) but serves a crucial role in creating the food’s structure or texture,  mid’oraisah such an ingredient, known as a davar hama’amid, can be batel b’shishim, but mid’rabannan it cannot be; and one would imagine that if a Jew owned food that contains a chametz davar hama’amid it would be permitted after Pesach. Yet Mishnah Berurah (442:27) is machmir that foods that contain a chametz davar hama’amid (or an avidah lit’amah, an ingredient that flavors the entire food) are forbidden after Pesach (see Gra”z ibid. for a possible explanation).  However, as a rule, a retail-sized container of food contains much less than a kezayis of davar hama’amid or avidah lit’amah, and therefore according to Mishnah Berurah mentioned in the previous paragraph, the prohibition of chametz she’avar alav hapesach doesn’t apply.

As noted, the prohibition of chametz she’avar alav hapesach is Rabbinic in nature, and some Acharonim therefore hold that if one is unsure as to whether a specific item is or isn’t forbidden, one may be lenient (based on the rule of safek d’rabannan l’kulah, one may be lenient regarding questions of issurim d’rabannan).  Others argue that in cases of doubt one may not eat the food (although one may have benefit/pleasure from it); Mishnah Berurah 449:5 cites both opinions without offering a definitive ruling, but it is noteworthy that Iggeros Moshe O.C. IV:96 is lenient  Mishnah Berurah does, however, note that all agree that the food is permitted if the majority of that type of food is permitted (i.e. produced after Pesach or owned by a non-Jew over Pesach) or if there is any reason to believe this food was produced after Pesach.  Later in the article we will see that this issue is quite relevant to many kosher consumers.

As with most issurim, it is generally accepted that if some chametz she’avar alav hapesach was mixed into other food, the entire mixture is forbidden unless the chametz comprises less than 1/60 of the mixture (i.e. batel b’shishim) (see Shulchan Aruch 447:11 and Mishnah Berurah 447:105).  For this reason, if a Jew owned chametz flour over Pesach and used that flour in a soup, the entire soup would be forbidden.  One notable exception to this rule is in cases where chametz she’avar alav hapesach was mixed “yavesh b’yavesh” into permitted foods, where the rule is that the mixture is permitted as long as there is less chametz than other foods (i.e. batel b’rov) (Mishnah Berurah 447:105).  Yavesh b’yavesh refers to “mixtures” where no one can tell the difference between the issur/chametz and permitted food, but each retains its distinctiveness.  An example of this would be a supermarket that has five bottles of ketchup on the shelf that contain chametz she’avar alav hapesach and eight bottles that don’t, and no one can figure out which bottles are the ones that are permitted.  The different bottles of ketchup are “mixed together” but each individual bottle retains its distinctiveness; in that case, all 13 bottles would be permitted because the five forbidden bottles are batel b’rov in the eight permitted ones. 

Which foods are included

Chametz is defined as what is created when one of the five grains – wheat, barley, rye, oats or spelt – soaks in water for more than 18 minutes, and only those foods are forbidden after Pesach as chametz she’avar alav hapesach.  Kitnios (e.g. rice, beans, corn) and other foods forbidden based on minhag are not chametz; therefore, a Jew may own them on Pesach and they remain permitted after Pesach regardless of who owned them.

Some foods are obviously chametz – bread, pasta, cookies, crackers, pretzels – and are clearly included in the halacha of chametz she’avar alav hapesach.  Other chametz-containing foods can easily be identified by reading the ingredient panel. Breakfast cereals, soy sauce, fish sticks and other food have one of the five grains listed prominently.  Nowadays, wheat kernels are generally tempered/soaked in water for many hours before they are ground into flour, and therefore Mishnah Berurah 453:24 rules that “standard” flour should be considered chametz, and he strongly implies that the same applies to chametz she’avar alav hapesach as well.  Similarly, water is potentially used in two different stages of the processing of oats/oatmeal, and they should therefore be assumed to be chametz (see end of Mishnah Berurah 454:13). 

On the other hand, plain barley kernels (i.e. pearled barley) generally do have any contact with water during processing, and therefore one may purchase them from a Jew after Pesach.  If barley is soaked in water under proper conditions, it ferments into beer, and since the barley was in water for more than 18 minutes, beer is chametz (Shulchan Aruch 442:5).  The consensus of the Poskim is that whisky produced from one of the five grains is considered chametz as well (Mishnah Berurah 442:4).  It is noteworthy that although certain whiskies are assumed to be made of kitnios (e.g. bourbon is made from corn) a careful reading of the regulations often shows that the product must only contain 51% of that grain and the rest can be – and often is – chametz.

Vinegar is created when alcohol is fermented, and the primary concern as relates to chametz she’avar alav hapesach is the source of the alcohol.  In some vinegars, the source is apparent: malt vinegar is made from malt beer and is chametz, while wine or apple cider vinegar are made from fruits that obviously aren’t chametz.  However, most vinegar is labeled “white distilled,” and the alcohol used to produce it can come from just about any grain.  This vinegar is bottled and sold and is also a prime ingredient in pickles, olives, salad dressing and condiments (e.g. ketchup, mustard, mayonnaise).  Does that mean that all of these products are forbidden if they were owned by a Jew over Pesach?  Surprisingly, the answer to that question depends on where you live, or more specifically, where the food was manufactured, as follows.

As noted, white distilled vinegar can be made from just about any grain, and the finished product tastes exactly the same regardless of which grain was used.  Therefore, vinegar is generally made from whichever grain alcohol is cheapest in that country.  Thus, for example, in the United States, white vinegar is by and large made from corn alcohol (i.e. non-chametz) while in Europe it is often made from wheat alcohol (i.e. chametz).  Of course there are exceptions to this rule due to market fluctuations, but we have seen that as relates to chametz she’avar alav hapesach one may surely rely on the rov/majority.  Therefore, white vinegar (and vinegar-containing products) made in the United States may be assumed not to be in the forbidden category of chametz she’avar alav hapesach, even if  owned by a Jew over Pesach.

Certain enzymes, vitamins, flavors and other items (e.g. xanthan gum, citric acid) are created via fermentation and are found in many products (including vinegar, noted above).  One of the prime ingredients in fermentation is “glucose” (a.k.a. sugar), and – just like white vinegar – glucose can be created from any starch.  As noted above, in many countries of the world this means that the fermentation products can be assumed to be non-chametz.  Even in countries where the glucose is generally chametz (and even in the rest of the world where fermentation products may be imported from these countries), these items don’t pose much of a concern regarding chametz she’avar alav hapesach because (a) the items are generally batel b’shishim in the finished product and (b) even if the cases where they are considered a davar hama’amid, there will always be less than a kezayis of the fermentation product in any retail-sized container.

It is also worth noting that Mishnah Berurah (442:1 end) rules that non-chametz food that was cooked in a chametzdik pot before Pesach may be kept (i.e. owned) by a Jew over Pesach (even if the pot was ben yomo and even if the blios weren’t batel b’shishim in the food).  If the Jew is permitted to keep it over Pesach, then there is surely no issur of chametz she’avar alav hapesach on such food.                    

Jewish storekeepers

It was noted above that the issur of chametz she’avar alav hapesach is limited to chametz owned by a Jew on Pesach, but chametz owned by a non-Jew is permitted.  Towards this end, most conscientious Jews sell all of their remaining chametz to a non-Jew just before Pesach and repurchase it after Yom Tov.  Therefore, as a rule, religious Jews rarely have any of their own chametz which is chametz she’avar alav hapesach, and they only deal with these halachos as relates to food purchased in stores after Pesach.  The issue can be divided into three parts: buying from an irreligious Jewish storekeeper, food produced in a Jewish-owned factory, and food distributors who are Jewish.

If an irreligious Jewish storekeeper owned chametz during any part of Pesach, the chametz is forbidden to all Jews forever.  In a well-known set of teshuvos, Iggeros Moshe (O.C. I:149 & II:91) discusses the case of a storekeeper who asks his Rabbi to sell his chametz to a non-Jew (i.e. mechiras chametz) but then continues to do business with chametz on Pesach.  Does the fact that he continues to do business with the chametz show that the “sale” was just a sham, which is invalid and renders the chametz in the store chametz she’avar alav hapesach?  While there were those who took a strict position on this matter, Iggeros Moshe ruled that the written document of sale overrides the unspoken intentions of the storekeeper, and the sale is valid.  Therefore, any chametz owned by the storekeeper from before Pesach may be purchased and eaten by Jews after Pesach.  However, Iggeros Moshe has two important caveats:

The second caveat is quite relevant to the religious Jew buying in the store after Pesach.  There is a safek (doubt) on every piece of chametz in the store: did the storekeeper purchase it before Pesach so that it’s covered by the mechiras chametz, did he purchase it on Pesach so that it’s forbidden, or did he purchase it after Pesach in which case it’s surely permitted?  In some cases, one can determine exactly which products fit into each category, but in most cases, it is impossible to make an exact determination and the safek remains safek.  We have seen earlier that there is a machlokes as to whether one can be lenient about safek chametz she’avar alav hapesach or not, and one should consult with the local Rav for direction on this matter.

At some point, the majority of the store’s stock will not be chametz she’avar alav hapesach and at that point one can purchase chametz without any qualms.  Obviously, the determination of how long it takes before “most” of each type of chametz is permitted depends very much upon the type of product and the nature of the business.  Fresh bread only lasts for a few days, while whisky, pasta and canned goods have a very long shelf life.  24-hour newsstands get deliveries much less frequently than large supermarkets.  Sometimes, the products delivered on Pesach don’t “hit the shelves” until a few days after Pesach, while in other cases they’ve all been sold by that time.  Clearly, local experts and Rabbonim who are familiar with the store, community and people’s shopping habits must be consulted in making this decision.

Jewish manufacturers

The status of Jewish-owned food manufacturers and distributors is somewhat more complicated than that of a storekeeper.  For if the storekeeper makes a mechiras chametz, at least the chametz which he owned from before Pesach is permitted after Pesach.  However, if a manufacturer (or distributor) sells chametz from his stock to a supermarket on Pesach, we have seen that Iggeros Moshe is clear that that chametz is forbidden, which means that the chametz being sold in the supermarket is chametz she’avar alav hapesach.

As a rule, a food manufacturer or distributor structures his business as a corporation rather than as a sole proprietorship.  This led some Poskim to suggest that chametz she’avar alav hapesach doesn’t apply to the corporation’s chametz because the chametz is considered to be owned by the “corporation” as opposed to the Jew (either due to civil law’s view of a corporation or because the stockholders don’t have voting rights – see Zecher Yitzchok #8, end, and HaElef L’chah Shlomo O.C. 238).  However, the generally accepted opinion is that of Iggeros Moshe (E.H. I:7, end) who rules that if a Jew (or Jews) owns either a very large percentage of the company’s stock or enough stock to have a voice in the management of the corporation, the chametz owned by the corporation is considered to be “Jewish-owned.”  (See also Minchas Yitzchok III:1 who takes a stricter approach.) Thus, the fact that the manufacturer is a corporation doesn’t necessarily obviate concerns of chametz she’avar alav hapesach.

As relates to the food manufacturer, the onus of guaranteeing that the food isn’t chametz she’avar alav hapesach generally falls upon the Rabbis who certify the food as kosher, and there are different opinions as to how to deal with this.  The most straightforward approach is to require that on Pesach, all Jewish-owned companies not purchase, produce or distribute anything that contains any potentially chametz ingredients.  Additionally, many Poskim hold that if a Jew is financially responsible for a non-Jew’s chametz on Pesach, that chametz is forbidden after Pesach (see Mishnah Berurah 440:5), and therefore the Jews would be even more restricted in their dealing with any chametz in the plant. 

Others allow the use of the items listed above as not likely to be chametz (e.g. vinegar, fermentation products).  Furthermore, they allow the companies to use chametz in products that don’t carry a hashgachah, based on Sha’arei Teshuvah 447:2, Be’er Haitev 447:4 and Mishnah Berurah (447:4 & 451:4) who rule (for different reasons) thatequipment used for chametz on Pesach may be used after Pesach without kashering.  (Of course, even those who follow this approach arrange for the company to perform a mechiras chametz on the chametz they own.)  This gives the Jewish-owned companies a certain degree of flexibility to continue operating their business on Pesach, albeit with some restrictions.  However, even those who follow this position would have no choice but to force a Jewish-owned all-chametz company, such as a bakery, to be closed for the entire Pesach. 

There are those who take an even more lenient approach.  They allow the Jewish owners of the company to sell the entire company – not just its chametz – to a non-Jew using a modified mechiras chametz, and consider the Jewish “owners” to be mere employees who help the new owner manage his company for Pesach.  In this manner, the hashgachah considers the company no longer “Jewish owned,” and imposes no restrictions as to what they can do on Pesach. 

Others disagree with this approach for two reasons.  First, they claim that the sale of an entire company to an unknown buyer who has never even seen it, has no idea of what he’s buying, doesn’t have the means to follow through on the purchase, and is never given a fair accounting of the profits he “earned” during his week-long ownership, is such an obvious sham as to invalidate the entire transaction.  Secondly, there are serious halachic questions as to whether chametz purchased during the week of Pesach belongs to the “buyer” (i.e. the Jew) or the company’s “owner” (i.e. the non-Jew); these questions are beyond the scope of this article.

In response to these two concerns, some hashgochos rely on the sale of the “whole company” only in cases of a Jew and non-Jew who are partners, in which case it is somewhat more plausible that they would sell their shares to one another.  To make the sale more “real,” it is structured between the partners (rather than with an outsider), the Jew is forced to not participate in business operations during Pesach, and the non-Jew is required to sell his share to the Jew for a corresponding number of days at some other part of the year (often set as the time when he would otherwise be going on vacation).  This form of mechiras chametz is somewhat better than the one mentioned previously, while still allowing the company to operate on Pesach.

As with all matters of halacha, consumers should consult with their Rav as to which of these methods they deem acceptable, and for information as to which hashgochos follow which standard.

Jewish distributors

In recent years, the Jewish community in the northeastern United States has become aware that a major distributor of food in that area is a company owned by Jews.  This situation is considerably more complicated than those discussed above.  Packaged products from dozens of manufacturers pass through a distributor’s warehouse on a daily basis, yet the distributor isn’t “certified” as kosher so there is no Rav who has any real say as to what he can or cannot do on Pesach.  Furthermore, whereas people can attempt to figure out approximately how long it takes for their local supermarket to deplete the supply of forbidden products and restock its shelves, a distributor is one step removed from the consumers and it is extremely difficult to get an accurate picture of which products were owned on Pesach.

Due to the seriousness (or as others would say, hopelessness) of the situation, some Rabbis have suggested creative ways to allow the distributor to perform a mechiras chametz which will even cover the chametz he purchases and sells on Pesach!  While it is clear that making some effort to correct the situation is better than doing nothing, many Rabbonim have serious reservations about the effectiveness of this sale.  As noted above, they consider the mechirah to be effective only as it relates to chametz owned by the distributor before Pesach and not sold to anyone on Pesach, which for a major distributor may amount to very little of his stock.

Even according to the stricter approach, not all of the chametz products found in supermarkets (owned by non-Jews) are forbidden, because the supermarket itself has stock from before Pesach, or stock which it purchased so long after Pesach that it was not owned by the distributor on Pesach.  In this case more than in those noted earlier, it is close to impossible to figure out which chametz is or isn’t forbidden.   This brings us back to the differing opinions discussed above: If one is unsure as to whether a particular food is chametz she’avar alav hapesach, may one eat the food or not? Please consult the local Rav for guidance.

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