לעילוי נשמת

יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: I bought an Israeli-produced soap that claims to use fruit extracts for fragrance, without further detail. Does that require a hechsher to ensure it does not contain orla (fruit in a tree’s first three years)?

Answer: Your question shows halachic acuity. We will start with a case where the fruit is orla.

Orla is forbidden in benefit (Orla 3:1; Pesachim 24b), and this is likely a full-fledged Torah-level prohibition in Eretz Yisrael even in our times, when many land-based prohibitions are rabbinic (implication of Shulchan Aruch, Yoreh Deah 294:9; Mishneh Lamelech, Maachalot Assurot 10:11 argues). On the other hand, if a usage is abnormal for this species (likely true for fragrance for many fruit), some say it is only rabbinically forbidden or even permitted (see discussion in Yalkut Yosef, Orla 2:10). Although orla applies only to edible fruit (Vayikra 19:23), the soap’s being unfit for a dog’s consumption (which is important regarding chametz) does not help regarding non-eating benefit, if the fruit became forbidden as orla when it grew (Yalkut Yosef ibid. 19).

The soap’s percentage of orla fruit can be important. While bitul of orla requires 200 to one of permitted substance (Orla 1:6), that is only for mixtures within the same species, but if fruit is mixed in with something else (e.g., soap), the normal rate of bitul of 60 applies (Pri Megadim, introduction to Hilchot Taarovot). If the fruit’s fragrance is clearly discernible (possibly, the main fragrance is chemical, and they put in a tiny amount of fruit as a marketing ploy), we have an interesting question. There is a machloket (see Acharonim on Rama, Yoreh Deah 102:1) whether there is bitul when the mixture’s forbidden part is small enough for bitul, but it is noticeable due to its color. Arguably, the same bitul impediment could apply to the fruit’s noticeable fragrance (likely, only rabbinically—see Badei Hashulchan 102:16).

The doubt about whether the fruit used in the soap are orla at all provides significant, possible grounds for leniency. Orla fruit are almost always a small percentage of the fruit market. The rule is that when there is an actual or virtual “market” of food, where the majority of the sources are kosher, if one encounters food of unknown origin away from the “market” (parish), we may assume it is from the permitted majority. If one took the food from the market without noticing whether it was from a permitted or forbidden source (kavua), we treat the food’s status as a safek (Ketubot 15a). Since the consumer encounters the fruit in the soap away from its “market” ((sections of) orchards throughout the country), the majority chance is that the fruit was not orla. (We are describing a case in which the fruit in the package of soap comes from a limited number of trees. If the fruit element in each comes from a huge mixture coming from a wide amount and variety of locations, we must use different tools of analysis, relating to bitul. That is beyond our present scope, but it likely leans towards a more lenient outcome.)

However, there is a problem. According to the simple reading of the Shulchan Aruch (Yoreh Deah 110:3), if a Jew took or had the food taken—without taking note of its halachic status—from the origin to the place of the person asking the question, we treat the food as kavua and, thereby, as a safek whether it is kosher. Just as it was forbidden for the one who took it, so is it for the ones (e.g., stores, consumers) who got it from him. See Yabia Omer VI, Yoreh Deah 24 who brings many opinions on whether this stringency is correct regarding fruit at the grocer. His conclusion is that there are enough reasons for doubt (including those we have not mentioned) why a given fruit is not orla that we can permit fruit without an orla hashgacha. He praises the many who do seek certification—although it is accepted that for the majority of fruit species with a tiny percentage of orla—we can assume each fruit is kosher.

Considering all the above, we posit that you may freely use the soap in question without concern about orla.

Rabbi Mann is a dayan for Eretz Hemdah and a staff member of Yeshiva University’s Gruss Kollel in Israel. He is a senior member of the Eretz Hemdah responder staff, editor of Hemdat Yamim and the author of “Living the Halachic Process, Volumes 1 and 2” and “A Glimpse of Greatness.”