VII. Several Suggestions to Permit Scotch Matured in Sherry Casks
A) Rav Moshe Feinstein’s Heter [Lenient Ruling]
Many people maintain that Scotch matured or finished in Sherry casks is permitted based on Rav Moshe Feinstein’s ruling in Igros Moshe (Yoreh Deah 1:62-64) regarding “blended whiskey.” Rav Moshe concludes that “blended whiskey” is permitted mei’ikur hadin due to the fact that stam yeinam added to the whiskey is batul b’sheish. (Rav Moshe advises a ba’al nefesh to be stringent). However, it is of vital importance to realize that Rav Moshe was not referring to Scotch; rather, he was referring to whiskey (perhaps Canadian or American) into which a small amount of wine (less than 2½%) was added. Thus, it was quite clear that the small volume of added wine was indeed nullified. Our discussion, however, refers to Scotch; the issue of concern is that it is matured in wine casks – wine is never poured into the barrel (it is actually illegal to do so). Although one might think that Scotch is more lenient since it is only an issue of absorbed wine (blios) – not actual wine (bi’en), it may be more stringent due to the opinion of the Shach and other poskim that the volume of blios is measured by the entire thickness of the walls, and there is not sufficient volume of Scotch to nullify the blios b’sheish. Accordingly, Rav Moshe’s heter does not apply to Scotch.
B) Addition of Water Prior to Bottling
After Scotch has fully matured, it is generally diluted to a bottling strength of between 40-46% alcohol content. Accordingly, the argument goes, even if wine blios truly require bitul b’sheish, this addition of water, together with the Scotch itself, is enough to nullify the wine b’sheish.
However, this argument is fraught with difficulty. Chazal teach us that the principle of chaticha na’asis neveila (“chanan” – the entire mixture becomes forbidden) generally disallows the addition of kosher liquid to recalculate the original ratio that existed at the time the forbidden substance was added (see Shulchan Aruch 92:4). Accordingly, nullification is necessary against the entire contents of the barrel – not just the wine blios – and the addition of water prior to bottling is not sufficient to nullify this large volume of forbidden Scotch.
It appears, though, that there is a strong argument that chanan does not apply with respect to stam yeinam. The poskim discuss whether chanan applies to Rabbinical prohibitions, such as stam yeinam. Some poskim rule that chanan does not apply to Rabbinical prohibitions (Pri Chodosh 92:17 based on Ran, Chullin 44b; Aruch HaShulchan 92:25). Other poskim, however, rule that chanan applies to both Biblical and Rabbinical prohibitions (Taz 92:11 and Pri Megodim ad loc.). Although the accepted ruling follows the stringent opinion, some poskim allow one to follow the lenient opinion with regards to prohibitions other than basar b’chalav [milk and meat mixtures], such as stam yeinam (Kesav Sofer siman 52; see also Chochmas Adam 44:13, and Tzvi L’Tzaddik, gloss to Taz 92:11). Additionally, liquid mixtures (lach b’lach) have certain leniencies. The Rema (92:4) rules that chanan does not apply when dealing with a liquid mixture (involving prohibitions other than basar b’chalav) in situations of hefsed gadol – when faced with a great financial loss. If this principle were applied, it would follow that nullification is necessary only against the actual wine blios. Even though the Rema is lenient with regards to chanan only when faced with a great financial loss, the Igros Moshe (YD II siman 36) rules that when dealing with a Rabbinical prohibition, such as stam yeinam, one may be lenient even without a great loss. Although some poskim rule that one may not be lenient even with regard to a Rabbinical prohibition unless there is a hefsed gadol (see Noda B’Yehuda, Mahadurah Tinyana YD siman 58, Tzemach Tzedek YD 66:6), it appears that there are sufficient grounds to be lenient in this issue.
It must be noted, however, that this leniency applies only to Scotch which is diluted after the maturation in the Sherry cask is complete; Scotch which is diluted before being placed in a Sherry cask would not have this leniency. “Cask Strength” whisky is not diluted before bottling and is therefore not subject to this leniency.
Most importantly, it must be noted that this leniency generally does not apply to Sherry casks. Due to the relatively thick walls of European wine barrels which contain a large amount of blios (as opposed to the thinner walls of American wine barrels), the addition of water is not sufficient to nullify the wine blios.
C) Aino Ben Yomo Wine Casks
Generally speaking, non-kosher food taste that has been absorbed in a vessel (blios) becomes stale after the passage of a 24-hour period. This is referred to as “aino ben yomo – it is not of today.” Such blios cannot affect kosher food subsequently cooked in the pot (see Shulchan Aruch 103:5). It has been noted that wine blios remain potent even after 24 hours and are not subject to the general leniency of aino ben yomo (Shulchan Aruch 135:16, Rema 137:1). The reason for this is that blios in general become stale over time; wine blios, on the other hand, actually improve over time (Shach 137:10). [The exception is if twelve months have elapsed since the barrel was emptied; after such a lengthy time, even wine blios are assumed to turn stale (Shulchan Aruch and Rema ibid.)] The simple understanding of this halachah is that wine blios remain potent (within 12 months) regardless of what is subsequently stored in the pot – be it wine, other liquids, or food. This is indeed the opinion of the Magen Avraham (OC 447:25) who applies this halachah even to a honey drink cooked in a wine barrel, and assumes that the wine blios remain potent even after 24 hours have elapsed.
The Pri Megodim (Eishel Avraham 447:25) suggests a novelty: Perhaps this halachah that wine blios always remain potent and do not have the leniency of aino ben yomo is true only when wine is subsequently stored in the barrel; if food or other drinks are stored in the barrel after 24 hours have elapsed from the removal of the non-kosher wine, perhaps the blios are indeed considered stale with regard to these mixtures. Accordingly, since Sherry casks likely remain empty for at least 24 hours before being filled with Scotch (stam kli aino ben yomo), and wine blios turn stale when mixed with liquids other than wine, the Scotch would be permitted based on the concept of nosen ta’am l’pgam.
However, the Pri Megodim notes that this position is at odds with the Magen Avraham (ibid.) who applies this halachah even to foods and other drinks, and therefore concludes that this halachah is tzarich iyun – requires further research. Accordingly, it is difficult to rely on this leniency.
D) Dried-out Barrels
As mentioned above, the Shulchan Aruch (135:16) and Rema (137:1) write that if kosher wine is stored in a non-kosher wine barrel which remained empty for at least twelve months, the wine is permitted because at that point, the wine blios are assumed to be stale. Based on this halachah, some have suggested an additional reason to be lenient with Sherry casks: It is quite possible that the barrels were left to dry for twelve months during shipping and transport, which makes the blios of wine pagum. This is especially likely if the barrels were disassembled prior to being shipped to Scotland, allowing plenty of time for the barrels to dry during shipping and storage until being reassembled. However, it is unlikely that this reason applies nowadays. Since Sherry casks are now so expensive, it is assumed that the wine casks were used as soon as possible and did not sit unused for twelve months.
Even if twelve months were to transpire from the time the barrels leave Spain until their use in Scotland, this leniency does not apply for the simple reason that the barrels often contain wine during shipment. Research shows that many companies currently ship their barrels while still assembled and, according to Antex Rioja, a used-barrel supplier in Spain, it is common to ship wine barrels with some wine still inside, often as much as 10 liters, which prevents the barrels from drying out. Accordingly, this leniency does not apply to Sherry casks.
E) Second Fills
Another suggestion to be lenient is the fact that Sherry casks may be used numerous times (called fills), possibly even three times. Perhaps one may assume that the wine blios already came out in the first fill, and the subsequent fills do not contain any wine blios. Accordingly, Sherry-matured Scotch should be permissible. Since most of the bottles on the market are from second or later fills, any particular bottle is assumed to be from the majority of kosher bottles and permitted. However, this argument does not carry weight in halachah, as will be explained.
The Rema (98:4), based on the Gemara in Chullin (97b), writes that if a piece of non-kosher meat falls in a pot of kosher food, and subsequently falls in a second pot of kosher food, the second pot is permissible only if it contains a volume of shishim against the entire piece of non-kosher meat. This rule applies even though a large amount of flavor already went out in the first pot, regardless of how many pots the non-kosher meat falls into. Since it is impossible to know if and when the entire flavor went out, bitul is required in every pot against the entire piece of meat.
We must clarify if the same halachah is true with regard to different batches of food cooked in the same pot. For example, if non-kosher food falls into a pot of soup and there is not shishim against the non-kosher food, the soup is prohibited. If one cooks a different batch of soup in the same pot within 24 hours, is shishim necessary against the non-kosher food or is it sufficient to have shishim in total between the first and second batches of soup? For example, if the first batch of soup had a thirty-to-one ratio and the second batch had a thirty-to-one ratio, is the second pot of soup permitted because there is a grand total of shishim against the non-kosher food, or do we say that since we don’t know when and where the blios came out, we must have shishim in every batch, similar to a non-kosher food which falls into two different pots?
The Rema (103:2) rules that if forbidden food falls into a mixture in which it is nosen ta’am l’pgam, the food is permitted but the pot is prohibited. If one cooks food (which is l’shvach with the forbidden food) in the pot before kashering it, the food is prohibited unless there is shishim against the original non-kosher food. Accordingly, it is quite clear that, even without chanan, shishim is required against the original non-kosher food even though the first mixture definitely nullified some of the blios. The reasoning must be that since we can’t know at which point the blios were released, we must require shishim in every mixture, just like the non-kosher food which falls into two pots. Thus, we see that every mixture cooked in a pot which absorbed non-kosher taste requires shishim.
According to the above, even if a wine barrel is used numerous times to mature Scotch, every fill of Scotch must have sheish against the blios of wine, and if sheish is not present, every fill is prohibited.
