Cheesemakers Legal Action: Update

By Wilma Finlay

Thank you to everyone who contributed to the Crowdjustice campaign in support of the five raw milk cheesemakers, including us, who are raising legal action against Food Standards Scotland. The background to this situation is described here. The campaign met its target so quickly that we have been able to proceed with the first stage.  Your support has been invaluable in helping us to fund the significant legal expenses incurred in getting QC advice on the legality of the guidance and to take us to the stage that we can raise a petition for a judicial review, if it is needed. 

This blog is an update on what has happened during the past week.

The raw milk cheesemakers of Scotland met Food Standards Scotland on Wednesday to discuss the guidance that has been issued on how Enforcement Officers should audit us.

This guidance was published just before Christmas.  We were made aware of it in January and believe that as it stands, all seven raw milk cheesemakers in Scotland would not be able to comply and would either go out of business or have to start using pasteurised milk when making cheese. You can read why we believe it’s important to protect the craft of raw milk cheese making in Scotland in our previous blog.

We have been in communication with FSS since the 1st February trying to get the guidance either amended immediately or withdrawn until it can be amended.   FSS have not done this.

The meeting last week was much more positive than the earlier email exchanges had been.  FSS’s technical expert agreed to the first three requested changes made by our technical expert, and we were pleased to find this common ground.  However, for some reason the meeting was then directed away from our list of requested changes and was not allowed to return to them.

As it stands this weekend, our technical expert has submitted all of the cheesemakers’ requested changes to FSS’s technical expert and we are hoping for a very quick resolution.

When I say very quick resolution, there are two reasons why this is urgent:

  1. Our annual audit is on 18th March – only one week away.  As the guidance stands we would end up in the Red Box (Enforcement Notice) in the ‘decision tree’ in the guidance.
  2. The cheesemakers only have recourse to legal action to challenge the guidance for three months after it is issued.  This means we can’t challenge the legality of the guidance after 21st March.

It may seem contradictory that we are on one hand preparing for legal action and at the same time holding largely amicable negotiations with FSS, but it is in everybody’s interests, including the taxpayers, that we get a speedy solution that is workable. 

However, resorting to Brexit language, we cannot take legal action ‘off the table’.

When I have said that we could end up with an Enforcement Notice next week, I want to assure people that I am very confident of our food safety system. 

The disputed guidance is primarily about controlling E. Coli O157:H7, but worrying about E. Coli O157:H7 does not keep me awake at night.  For the past 2 years every single batch of curd we have made has been tested for E. Coli O157, we test our raw milk for it weekly and we test our milk filter (which captures any foreign matter from the milking process) fortnightly.  E. Coli O157:H7 has never, ever been detected.   

What has kept me awake at night is worry that this guidance from FSS continues to reinforce the message that the public is at risk from E. Coli O157 by eating raw milk cheese.  I worry that the guidance is so onerous that it could indirectly shut down an important part of our national food heritage, and I worry about the continued escalation of the industrialisation of food production that I believe may be causing unintended harm.

What is at the heart of this guidance is a case against Errington which is now widely considered to have been flawed.  However, the ‘Incident Management Team’ report which concluded that Errington’s cheese was the cause of the E. Coli O157 outbreak in 2016 recommended that FSS should produce guidance on how E. Coli O157 should be audited in unpasteurised cheese.  Implementing that guidance is what FSS are now obliged to do. 

However, the Incident Management Team report itself is considered to be fundamentally flawed by Professor Noah, an infectious disease epidemiologist who has written a report criticising the IMT report.  E. Coli O157:H7 was never found in Errington’s cheese. Professor Noah concluded that it was likely that there was cross contamination either in the premises that sold the cheese or in the distribution of the cheese. 

Reporting from Prof Noah’s report The Times said:

“The hygienic processes . . . were not investigated,” the report stated. “It does not appear it was ever considered that the contamination could have occurred within [the premises where the food was eaten] or during transport of the cheese . . . The procedures in the premises for handling raw foods, especially beef, were not investigated.”

It added: “Swabs were not taken for microbiology from the surfaces of the vans or relevant surfaces and utensils.”

My worry is that if this is how investigations of food borne outbreaks are carried out, then any food product at all could be implicated, not just raw milk cheese.  That could happen, for example, if handling practices by a third party transferred pathogenic bacteria from raw meat onto a product’s packaging.

Professor Noah’s report has now been sent to Health Protection Scotland, the lead organisation of the Incident Management Team.  In my opinion there needs to be an urgent independent review of the IMT report, otherwise this unnecessary conflict between government agencies and raw milk cheesemakers in Scotland will continue.

One final point. During a visit to a microbiology lab in Scotland arranged for cheesemakers so that we could find out more about the testing of our cheese, I asked how many times the lab had found E. Coli O157.  The answer was, “We’ve found it once in the 15 years that I’ve worked here, and that was from a sample from an abattoir.”