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COMMACK SELF-SERVICE KOSHER MEATS, INC. v. RUBIN

July 28, 2000

COMMACK SELF-SERVICE KOSHER MEATS, INC., D/B/A COMMACK KOSHER, BRIAN YARMEISCH AND JEFFREY YARMEISCH, PLAINTIFFS,
V.
RABBI SCHULEM RUBIN, AS DIRECTOR OF THE KOSHER LAW ENFORCEMENT DIVISION OF THE NEW YORK STATE DEPARTMENT OF AGRICULTURE AND MARKETS, DEFENDANT, AND HON. SHELDON SILVER, THE UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA, ABE ALPER, JON GREENFIELD, JACK LEE, RABBI MOSHE PORTNOY, RICHARD SCHWARTZ, AGUDATH HARABONIM OF THE UNITED STATES AND CANADA, AGUDATH ISRAEL OF AMERICA, NATIONAL COUNCIL OF YOUNG ISRAEL, RABBINICAL ALLIANCE OF AMERICA, RABBINICAL COUNCIL OF AMERICA, TORAH UMESORAH NATIONAL SOCIETY OF HEBREW DAY SCHOOLS, UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA, DEFENDANTS-INTERVENORS.



The opinion of the court was delivered by: Gershon, District Judge.

Opinion and Order

Plaintiffs, Long Island merchants servicing consumers of kosher food products, challenge the constitutionality, under both the United States and New York State Constitutions, of certain of the New York State laws aimed at protecting consumers of food products labeled "kosher" from fraud. The named defendant is the Director of the Kosher Law Enforcement Division of the New York State Department of Agriculture and Markets (the "Department").*fn1 In December 1996, several Orthodox Jewish organizations, a rabbi, a competitor of plaintiffs, and individual consumers of kosher products were permitted to intervene jointly as defendants pursuant to Federal Rule of Civil Procedure 24(b)(2). Discovery has been completed.

Plaintiffs claim that the statutes described below (the "Challenged Laws") violate both the Establishment and Free Exercise Clauses of the First Amendment, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Defendant and the intervenors seek summary judgment dismissing the first six counts of the complaint, which challenge the laws on their face. Plaintiffs seek summary judgment on all claims, including count seven, which challenges the laws as applied.

The Challenged Laws

Section 201-a(1) of the New York Agriculture and Markets Law provides that:

1. A person who, with intent to defraud, sells . . . any . . . article of food . . . and falsely represents the same to be kosher or kosher for Passover, whether such . . . article of food . . . be raw or prepared for human consumption, or as having been prepared under, and of a product or products sanctioned by, the orthodox Hebrew religious requirements, either by direct statement orally, or in writing, which might reasonably be calculated to deceive or lead a reasonable man to believe that a representation is being made that such food is kosher or prepared in accordance with the orthodox Hebrew religious requirements . . . is guilty of a class A misdemeanor, except that . . . provided said meat or meat preparation in violation has a retail value in excess of five thousand dollars, [a person] is guilty of a class E felony. . . .
2. All fresh meats, meat by-products, meat food products and poultry offered for sale at retail as kosher shall be marked on the label when packaged or by a sign when not packaged, with the words "soaked and salted" or "not soaked and salted" as the case may be. Such words when marked on the label or by a sign shall be in letters at least as large as the letters of the words on the label or sign designating such meat, meat by-products, meat food products and poultry as kosher.
3. Fresh meat, meat by-products, meat food products and poultry shall be defined as meat or poultry that has not been processed, except for salting and soaking.
4. Every person who sells or exposes for sale, at wholesale or retail, any kosher meat . . . or poultry shall retail all records with respect to the origin of such kosher meat . . . or poultry. . . .

Section 201-b(1) parallels the provisions of Section 201-a except that it applies specifically to the sale of food products in hotels and restaurants. Section 201-c, entitled "Fraudulent identification of food and food products," provides that no person shall "[w]ilfully mark . . . as kosher, or as kosher-style, or as having been prepared in accordance with the Hebrew orthodox religious requirements food or food products not kosher or not so prepared. . . ."

Section 201-e(2-a) provides that "[i]n the event that non-prepackaged fresh meat or poultry is sold and delivered off-premises as Kosher the meat or poultry and the bill of sale, if any, rendered at the time of delivery shall have affixed to them a label or the printed words `not soaked and salted' or `soaked and salted' as the case may be," and Section 201-e(3-c) provides that "[a]ny person or firm owning or operating a slaughterhouse which produces meat or poultry which is offered as kosher in this state shall keep records with respect thereto, subject to inspection by the department, regarding the time, place, date, person or organization supervising the slaughter of the animal and the number of animals slaughtered in accordance with orthodox Hebrew religious requirements. . . ."

Section 201-f, which bears the caption "Kosher meat or poultry," provides that:

1. All meat or poultry which is sold . . . and is represented as having been prepared in accordance with orthodox Hebrew religious requirements and which has not been soaked and salted immediately after slaughter on the premises where slaughtered:
(a) shall have affixed to it a tag or plumba stating the date and time of day . . . of slaughter; and
(b) shall be washed in accordance with orthodox Hebrew religious requirements within seventy-two hours after slaughter, and within each subsequent seventy-two hour period, by a duly ordained orthodox rabbi or by a person authorized by him. . . .
2. No person shall sell, offer, or expose for sale any meat or poultry which is represented as having been prepared in accordance with orthodox Hebrew religious requirements, unless such meat or poultry is in compliance with subdivision one of this section.

3. For purposes of this section:

(a) [defining "meat"]

(b) [exempting liver from 1(b)]

4. All kosher poultry in the form of the whole bird shall be tagged with a plumba identifying it as kosher. Whole birds shall be so tagged at the original slaughterhouse.
5. The commissioner shall promulgate rules and regulations as are necessary to implement the provisions of this section, including but not limited to, the type of kosher identification to be affixed to each of the parts of such meat and poultry.

Section 201-h provides that "[i]t shall be unlawful to label food or food products with the words parve or pareve or in any way to indicate that the food or food product may be used or consumed indiscriminately with meat, poultry or dairy products according to Orthodox-Hebrew requirements when such food or food products are impermissible for such use or consumption."

Finally, Section 26-a establishes a nine-person advisory board appointed by the Commissioner of the Department of Agriculture and Markets to counsel the Commissioner on policy matters, to confer and discuss regulations regarding the preparation of kosher foods, and to propose amendments to the Kosher Laws for adoption by the legislature. The statute provides as follows:

It shall be the duty of the advisory board hereby established to advise, counsel and confer with the commissioner on matters of policy in connection with the administration and enforcement of laws and rules relating to kosher meats, meat preparations, and food products, to consider all matters submitted to it by the commissioner, and on its own initiative to recommend to the commissioner such changes in the laws or rules relating to the possession, sale and exposure for sale of kosher meats, meat preparations, and food products, as may be deemed advisable to secure the effective administration and enforcement of such laws and rules and, with the consent of the commissioner, to submit for enactment by the legislature such draft or ...

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