B) Potential Limitations to Bitul
Since any forbidden wine mixed with Scotch requires nullification, as discussed above, we must determine if it is possible to nullify the blios of Sherry wine absorbed by the Scotch. Various considerations that prevent bitul from taking effect are discussed in halachah. These considerations are treated below.
a. Avida L’ta’ama (Added for Taste Purposes)
An important limitation to the rule of bitul is avida l’ta’ama [added for taste purposes]. The Rema (98:8) writes that even a minute amount of forbidden spice prohibits kosher food into which it has become mixed. Non-kosher food is generally nullified when mixed into a kosher food whose volume is substantially greater, but spices cannot be nullified in this way because a minute quantity imparts detectable flavor even to a large volume of food, thus retaining their non-kosher identity. Are the wine absorptions in Scotch avida l’ta’ama? To answer this question it is necessary to determine why Scotch producers prefer Sherry casks.
There is no clear consensus as to the specific reason that Scotch manufacturers prefer to use wine casks for maturation. One accepted reason is to add color to the naturally light-colored Scotch. It is also likely that the manufacturers want the wine flavor to enhance the Scotch, as explained in the background section above. This may be especially true with regards to “finishes.” Many distilleries transfer fully matured Scotch to casks previously used for wine. This is called “finishing.” Many argue that the primary purpose of finishing is to permit the Scotch to absorb the wine flavor. If this is true, then the absorbed wine is considered avida l’ta’ama and can never be nullified.
However, it is more likely that the distillers are not interested in the actual flavor of wine – after all, they are producing Scotch, not wine. Rather, they want the enhanced flavor created by the blend of Scotch with the wine absorptions. According to Keith Cruickshank, Master Distiller of Benromach, by using various wood-finishes for aging and finishing, one is not flavoring the whisky but achieving “a complementation of elements, a strong merge.” Since one cannot actually taste the wine flavor, but only a new blend of flavors, the case with Scotch is not comparable to spices where one can taste the actual forbidden spice.
Additionally, some maintain that distillers are not interested in the wine flavor at all; they only want the flavor of the wood. The Glenlivet’s Ian Logan says: “We’re not interested in what’s been in the barrel but in the wood itself.” In this case, the wine flavor would certainly not be considered avida l’ta’ama because the wine flavor is both undesirable and indiscernible, unlike a forbidden spice whose taste is desirable and discernable.
On the other hand, even if the distillers were specifically interested in the wine flavor there are grounds to argue that avida l’ta’ama does not apply to the wine absorbed in Scotch. As discussed above once wine is batul b’sheish it loses its status as wine and is treated as kiyuha [“acid”] instead. This idea is also brought in Igros Moshe (Yoreh Deah 1:63). There, Rav Pinchos Teitz is quoted as arguing that wine added to whiskey should not be nullified because it was avida l’ta’ama, added for flavor. Rav Moshe countered that even if wine was added for flavor the whiskey would not be prohibited because wine which is batul b’sheish is referred to as kiyuha and treated as “acid.” Rav Moshe supports this position (in the previous siman) from various sources, including Tosfos (Chulin 25b d.h. hamitamed) who writes that diluted wine is called kiyuha and is not considered “ta’am gamur – authentic flavor.” This indicates that even though the flavor of the wine can be tasted, it loses its status as “wine,” even if the intention was to add wine flavor.
Some suggest that the wine does not contribute any flavor and wine barrels are used simply because the wine neutralizes the bitter wood flavor (see Minchas Yitzchok Vol. II 28:21, Mishneh Halachos 10:109). However, the Minchas Yitzchok points out that this seems to be sharply disputed by many experts who claim that the wine does contribute to the overall flavor of the drink. An additional difficulty is that the Mishneh Halachos favors this theory that the Scotch makers aren’t interested in the wine flavor based on the premise that if distillers truly wanted the wine flavor, it would be simpler to add wine directly to the Scotch. However, this premise is based on a false assumption. As stated clearly in the Scotch Whisky Regulations 2009, Scotch must not contain any added substance other than barley (or other grain), yeast, water and plain caramel coloring. Accordingly, even if Scotch distillers wanted wine flavor, they may not add wine directly to the whisky without risking fines and ruining their reputation. Indeed, the only way to add wine flavor would be through aging the whisky in wine casks.
Based on this concept, it would certainly seem that any wine flavor absorbed by the Scotch can be nullified according to the rules of bitul, even in the case of distilleries that are truly interested in the wine flavor.
The issue of avida l’ta’ama is also addressed by Rav Weiss. In Minchas Yitzchok Vol. II (28:5-7, written in 5716) he argues that if the actual wine flavor can be detected then it can never be nullified. If, however, the taste cannot be detected and there is only some change in the flavor due to the presence of wine, then it may be permitted based on the principle zeh v’zeh gorem (ibid. s.k. 16-18). The rationale for this is that many factors in the production of Scotch affect the final flavor of the drink, including malted barley, water, wood flavor, peat and Sherry flavoring. Since the overall flavor is affected by many factors, the wine’s particular contribution cannot be considered avida l’ta’ama. This is also the opinion of Mishneh Halachos (10:109).
It appears that most Scotch experts agree that, although the wine affects the overall flavor, the actual taste of wine cannot be detected. The Minchas Yitzchok himself (s.k. 21) acknowledges that this seems to be the accepted opinion. Therefore, even though blios of wine in Scotch is avida l’ta’ama, the forbidden wine blios can be nullified.
However, it is hard to accept the application of zeh v’zeh gorem in the case of Scotch. The concept of zeh v’zeh gorem is applicable only in cases where the resulting flavor could have been achieved with the other kosher ingredients had they been present in larger quantities, and the non-kosher ingredient is not absolutely required to achieve the desired outcome. In contrast, the distinctive flavor of Scotch matured in Sherry casks cannot be achieved without the addition of forbidden Sherry flavor. Rav Weiss himself grapples with this issue in a later volume (Vol. VII 27:4, written in Iyar 5738) and writes that zeh v’zeh gorem is not applicable to Sherry casks, since the distinctive Scotch flavor could not have been attained solely with the other kosher ingredients. Rav Weiss notes that this differs with the earlier Teshuvah and concludes that this issue is tzorich iyun [requires further elucidation].
An additional reason to disregard the concern of avida l’ta’ama is that some poskim are of the opinion that avida l’ta’ama prevents bitul only of actual forbidden items (bi’en); imparted flavors (blios), however, are not subject to the limitations of avida l’ta’ama (Beis Shlomah OC siman 87; S’dei Chemed, Ma’a’reches chometz u’matzah 4:6:10 and 4:12, Volume 7, pages 103 and 108). Other poskim, however, argue that the concern of avida l’ta’ama applies to bi’en and blios alike (Pri Megodim M”Z OC 451:27).
To summarize: It is unclear if Scotch makers are interested in the Sherry casks for the flavor of their wine blios (presenting a concern of avida l’ta’ama), or for the overall effect of the wine or wood on the Scotch. Most experts agree that the original wine flavor is not preserved and cannot be identified in the Scotch, and therefore it is subject to bitul. One may not invoke the principle of zeh v’zeh gorem; nevertheless, according to Rav Moshe once the wine is diluted at a ratio of 6:1 it is “acid” and not “wine,” and there is no longer any concern of avida l’ta’ama. Additionally, according to some poskim avida l’ta’ama does not apply to blios. Thus, it appears that there are sufficient grounds to consider wine blios not subject to the limitation of avida l’ta’ama.
b. Darkon B’kach (An Integral Ingredient)
The Shulchan Aruch (134:13), quoting the Teshuvos HaRashba (3:214), rules that one may not drink any beverage of a gentile if it is customary (darkon b’kach) to add (non-kosher) wine to it. The Rashba clarifies that the drink is forbidden even if there is enough kosher liquid to nullify the wine. The reason for this is that any food or liquid routinely added to a mixture is considered an integral ingredient of the mixture. This fundamental part of the mixture defines the final product, similar to the concept of davar ha’ma’amid (i.e., a forbidden food that acts as a “support” for the final product), and cannot be nullified (Minchas Yitzchok Vol. II 28:12, based on the Machatzis Hashekel 447:45 towards the end). Accordingly, it would seem that Scotch containing absorptions of Sherry wine should be forbidden.
However, the Noda B’Yehuda (Mahadurah Tinyana, YD siman 56) notes that since many poskim (Rambam and Ri Migash, quoted by Ran, Avodah Zorah 13b) argue with the Rashba, one may be lenient and permit these beverages as long as the wine is batul. This is also the position of Gilyon Maharsha (gloss to Shulchan Aruch 134:13).
Furthermore, Rav Weiss (ibid. 28:18), based on the Machatzis Hashekel mentioned above, maintains that this prohibition does not apply when zeh v’zeh gorem is applicable (just like it doesn’t apply to davar ha’ma’amid). Since the desired taste of the beverage cannot be achieved without the other permissible ingredients, the forbidden substance cannot be said to define the entire mixture. Hence, since the unique taste of Scotch is only achieved with a combination of various ingredients, the presence of non-kosher wine cannot be reason to forbid the Scotch.
Rav Moshe Feinstein (Yoreh Deah 1:63) seems to have a different view on this halachah. After quoting the Shulchan Aruch that one may not drink the beverage of a gentile if it is customary to add wine to it, he notes that the Rema (114:4 and 6) disagrees and rules that the beverage may be consumed as long as the wine is nullified. Rav Moshe maintains that although the halachah follows the Rema, it is advisable that a ba’al nefesh abstain from drinking such a beverage in order to accommodate the position of the Rashba.
c. Chazusa (Coloring)
The Rema (102:1) rules that if a forbidden ingredient adds color to a mixture, the ingredient cannot be nullified. Accordingly, since one of the primary functions of Sherry casks is to add color to the light-colored Scotch, the wine should not be batul. However, the Minchas Yitzchok (Vol. II 28:19) cites the Pri Chodosh (102:5) who rules that Chazal were not concerned about coloring when dealing with an item which is only Rabbinically forbidden, which includes the prohibition of stam yeinam. Furthermore, since the color is affected by many other factors, including the barrel and caramel color, this is certainly a case of zeh v’zeh gorem and the non-kosher ingredient can be nullified.
d. Bitul Issur L’chatchila (Intentional Nullification)
Another potential issue of concern is bitul issur lechatchila. It is forbidden to add even a minute amount of non-kosher food (even if only Rabbinically forbidden) to a kosher mixture, even though the amount will certainly be nullified (Shulchan Aruch YD 99:6). If the non-kosher ingredient was intentionally added, Chazal imposed a penalty and prohibited the food to the one who mixed it in and to the person for whom it was added (ibid. 99:5). This prohibition is referred to as bitul issur l’chatchila. What is the halachah if a forbidden ingredient was added intentionally by a commercial manufacturer – is the product forbidden to the consumer? Rabbi Akiva Eiger (gloss to Shulchan Aruch ibid.) quotes the Rivash that it is forbidden to the customers because it is considered as if the manufacturer mixed in the forbidden item specifically for the customer. He notes, however, that the Taz (s.k. 10) permits the item to the purchasers because it was not mixed with any particular individual in mind. Accordingly, it would appear that the absorption of Sherry wine in Scotch is considered bitul issur l’chatchila according to the Rivash, but not according to the Taz.
However, Rav Moshe Feinstein (Igros Moshe, Yoreh Deah 1:62) writes that since Scotch is mainly marketed to gentiles, it is considered as if the addition of wine was done for them. As such, there is no problem for Jewish consumers even according to the Rivash.
Rav Moshe reasons further (ibid. siman 63) that even though the manufacturer created additional Scotch to accommodate the Jewish market, no penalty can be imposed upon the Scotch because the (non-Jewish) Scotch manufacturer did not violate any prohibition by adding the wine. Furthermore, many poskim side with the Taz that the penalty of bitul issur l’chatchila was not imposed on consumers of commercially produced food and beverage. Additionally, gentile wine in contemporary times has the status of stam yeinam and not yayin nesech. The distinction here is crucial. In the days of old when gentile wine had the status of yayin nesech, it was forbidden to have any benefit, directly or indirectly, from the wine. Stam yeinam is less problematic, for though one may not drink it, one may benefit from it indirectly, for instance, by selling it. This indicates that the injunction against stam yeinam is not due to any real concern that the wine was used for idolatrous purposes, but rather that it is a Rabbinical ordnance meant to prevent intermarriage and has no direct Torah source (ain lo shoresh min haTorah). Accordingly, some poskim permit intentionally nullifying this wine (Tosfos, Pesachim 30a). In addition, the Rambam (Hilchos Ma’achalos Asuros 15:26) rules that one may intentionally nullify any food that is only Rabbinically prohibited.
In light of all these considerations, Rav Moshe concludes that whiskey containing wine cannot be prohibited because of bitul issur l’chatchila. Rav Yitzchok Weiss (Minchas Yitzchok Vol. II 28:20) cites an additional reason that bitul issur l’chatchila does not apply to Scotch. The Maharsham (3:234) explains that Chazal’s motivation behind imposing a penalty for intentionally nullifying a prohibited item was their concern that one may come to add such a large amount of the forbidden food that nullification won’t occur. Rav Weiss therefore argues that the penalty of bitul issur l’chatchila cannot possibly apply to Scotch because one would carefully avoid adding a large volume of wine, lest one ruin the Scotch.
